O'Keefe v Fitzpatrick
[2012] QCATA 45
•13 March 2012
| CITATION: | O’Keefe v Fitzpatrick and Anor [2012] QCATA 45 |
| PARTIES: | Michelle Robyne O’Keefe (Applicant/Appellant) |
| v | |
| Laurie Fitzpatrick Gail Fitzpatrick (Respondents) |
| APPLICATION NUMBER: | APL420-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 13 March 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS: | Minor civil dispute – Residential tenancy matter – where application filed in excess of six months from when the tenants became aware of the lessor’s breach – where no power to extend time Queensland Civil and Administrative Tribunal Act2009, s 142(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Lowe v Aspley [2010] QCATA 59 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
On 17 September 2010 Ms O’Keefe, together with Mr Michaels entered into a general tenancy agreement with Mr and Mrs Fitzpatrick to rent a house at 176 Wongawallan Road, Wongawallan. The tenancy commenced on 17 September 2010 and concluded on 16 March 2011. Ms O’Keefe vacated the property on 23 March 2011.
Throughout the tenancy, Ms O’Keefe experienced ongoing problems with moisture in the house resulting in significant quantities of mould growing in the premises.
On 31 December 2010 Ms O’Keefe completed a Maintenance Request Form and gave it to the managing agents, LJ Hooker, Pacific Pines, in which she stated:
“House has severe leakage, now leaving one room totally unusable (room off lounge) mould is constantly growing everywhere including on all our furniture and belongings as a result. Upstairs main and middle bedrooms are apparently leaking through ceiling or windows due to mould growth and wet feeling – termites have been also found in.”
That request was followed by a Notice to Remedy Breach issued by Ms O’Keefe and Mr Michaels on 28 February 2011 again complaining that the property did not comply with health and safety standards, rooms were unusable, there was chronic mould growth and stench of mould on everything in the house, walls, doors etc. The Notice also referred to unacceptable living conditions and electricity faults. Apparently, the lessor took some action in response to the Notice to Remedy Breach but, within weeks of that, the tenants had left the property.
On 7 September 2011 Ms O’Keefe and Mr Michaels commenced a minor civil dispute proceeding in the Tribunal claiming $9,830.00 compensation. The claim was broken up into three items, the first being loss of furniture and belongings, $7,850; forced removal costs, $420; and cleaning and maintenance costs $1,560. In support of their claim, they relied on the Notice to Remedy Breach dated 28 February 2011, Notice of Intention to Leave dated 10 March 2011 and dispute resolution request dated 14 March 2011.[1]
[1]Minor civil dispute application – residential tenancy dispute application dated 7 September 2011 part E number 2.
The application came on for hearing before a Tribunal Member on 18 October 2011. Both Ms O’Keefe and Mr Michaels attended the hearing as did Ms O’Brien on behalf of the respondents. At the very beginning of the hearing, the learned Member queried whether or not he had the power or jurisdiction to make the orders sought by the applicants because of the time limitation imposed by section 419 of the Residential Tenancy and Rooming Accommodation Act 2008. Subsection 3 provides:
“The application must be made within 6 months after the lessor or tenant or provider or resident becomes aware of the breach”.
This point was raised because the cause of the damage to Ms O’Keefe’s property was as a result of mould due to dampness in the house, which was evident from the commencement of the tenancy. When questioned by the learned Member about cleaning and maintenance and when that took place Mr Michaels responded:
“The whole time. From the 2 weeks after we moved in.”
In addition to that statement by Mr Michaels, it is evident upon reading the transcript of the exchange between Ms O’Keefe and Mr Michaels that they were battling the mould problem throughout the six months they were in occupation of the house. It came to a head when they decided to deliver the Maintenance Request Form, and also the Notice to Remedy Breach.
These facts, as found by the learned Member and which are clearly open on the evidence and in fact irrefutable, establish that Ms O’Keefe and Mr Michaels became aware of the lessor’s breach of the tenancy agreement well before the expiration of the tenancy on 16 March 2011. In fact, considering the date upon which the application was filed on 7 September 2011 the tenants were aware of the breach well before 7 March 2011 as the learned Member alluded to in his reasons.
As a consequence of this finding of fact, the learned Member had no alternative but to dismiss the application for compensation.
From that decision Ms O’Keefe only, has filed an application for leave to appeal or appeal. As this is an appeal from a minor civil dispute leave, or permission, of the Appeal Tribunal is necessary.[2] The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[3] Is there a reasonable prospect that the applicant will obtain substantive relief?[4] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[5] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[6]
[2] QCAT Act, s 142(3).
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4] Cachia v Grech [2009] NSWCA 232 at 2.
[5] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
It is apparent from the submissions filed by Ms O’Keefe that she has gone to considerable trouble to put material before the Appeal Tribunal to establish that she has good grounds for seeking compensation from the respondents. In fact, the material filed effectively restates all of the evidence put before the learned Member as well as the submissions made to him during the course of the hearing. The submissions challenge findings of fact made by him in so far as it relates to what might have caused or contributed to the presence of mould in the house. Unfortunately, those submissions on the facts are of little assistance in trying to overcome the hurdle presented by section 419(3) of the RTRA. The Residential Tenancy and Rooming Accommodation Act 2008 is prescriptive about the requirements for time frames in which Notices under the Act can be issued and when proceedings can be commenced.[7]
[7] Lowe v Aspley [2010] QCATA 59.
Irrespective of whether his findings of fact as to what might have caused the mould is correct or not or alternatively whether the advice given to Ms O’Keefe was correct, her application was not filed within the mandatory six months of her becoming aware of the lessor’s breach. Her application was out of time and the Tribunal has no discretion to extend time for the bringing of this application for compensation.
In any event, in respect to the damages claimed even if the Tribunal did have jurisdiction to hear the application, the compensation claimed for the loss of furniture and belongings lacks proof of the quantification of that loss. The learned Member observed that the claim for $7,850 was not supported by any documentary evidence to substantiate the value of the loss.
Ms O’Keefe has been unable to identify any error on the part of the learned Member, nor has she established a substantial injustice to warrant a grant of leave. Therefore leave to appeal must be refused because, the Tribunal had no jurisdiction to hear the claim and in this regard, the learned Member was correct in making the decision that the application should be dismissed.
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