O'Neill v LJ Hooker Robina - [2023] QCAT 236

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

O’Neill & Anor v LJ Hooker Robina [2023] QCAT 236

PARTIES:

JOHN O'NEILL AND MARK SMITH

(applicants)

v

LJ HOOKER ROBINA

(respondent)

APPLICATION NO:

Southport MCD 1262/22

MATTER TYPE:

Residential tenancy matter

DELIVERED ON:

14 February 2023

HEARING DATES:

14 December 2022

31 January 2023

HEARD AT:

Southport

DECISION OF:

Adjudicator Scott-Mackenzie

ORDERS:

1.     The Residential Tenancies Authority pay the rental bond in the sum of $5,400.00 as follows:

(a)     the tenants - $4,953.83; and

(b)     the lessor - $446.17;

2.     The respondent pay to the applicants compensation in the sum of $3,875.50 within 14 days of the date of this order.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where applicants gave two notices to remedy breach and a notice of intention to leave – where applicants made application for a refund of rent – where respondent made counter-application for the payment of rent and other costs and expenses

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), ss 70, 420(1)(e)

Define Property Agents v Sanderson [2021] QCATA 129

Gould v Mazheiko & Anor [2020] QCATA 10

APPEARANCES & REPRESENTATION:

Applicants:

Self-represented

Respondent:

Mr Holland, LJ Hooker Robina

REASONS FOR DECISION

Application

On 28 November 2022 the applicants, Mr John O'Neill and Mr Mark Smith, made application to the Tribunal for payment to them of $20,113.00, calculated as follows:
Rent refund – Ceiling issues  $14,753.00
Rent refund – Jetty issues  $ 4,435.00
Rent refund – Electricity issues  $     925.00
$20,113.00
The applicant filed with the application numerous documents, including:
(a)residential tenancy agreement between the lessor, Ms Jacqueline Milne, and the applicants dated 21 March 2022 (tenancy agreement);
(b)notice to remedy breach dated 10 August 2022 (first notice to remedy breach);
(c)notice to remedy breach dated 20 October 2022 (second notice to remedy breach);
(d)notice of intention to leave dated 27 November 2022 (notice of intention to leave);
(e)emails sent and received by the parties between 2 August 2022 and 27 November 2022;
(f)timeline; and
(g)several photographs.
Counter-application
The respondent, LJ Hooker Robina, on 9 January 2023, filed a counter-application claiming $4,438.24, calculated as follows:
Rent (6 December 2022 – 18 December 2022)  $2,507.07
Water consumption charges to 6 December 2022               $ 206.17
Break lease fee, including GST  $1,485.00
Pet odour treatment  $ 240.00
$4,438.24
The documents filed by the respondent with the counter-application include:
(a)invoice Jewel Carpet Cleaning & Pest Control to the respondent dated 21 December 2022 for pet odour treatment; and
(b)particulars of the orders sought and reasons.
Tenancy agreement
The premises may be described as a prestige rental property. The rent payable under the tenancy agreement was $1,350.00 per week. Features of the premises included 4 bedrooms, 2 bathrooms, a kitchen, inground swimming pool, ducted air conditioning and a jetty and pontoon.
The tenancy agreement was for a fixed term starting on 25 March 2022 and ending on 23 March 2023. The rental bond is $5,400.00.
First notice…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading O'Neill v LJ Hooker Robina

Details

AGLC: O'Neill v LJ Hooker Robina [2023] QCAT 236
Case: [2023] QCAT 236
Decision Date

CaseChat Overview and Summary

In the matter of O'Neill v LJ Hooker Robina, the applicants, Mr. and Mrs. O'Neill, brought forth claims against the respondent, LJ Hooker Robina, concerning various alleged breaches of the tenancy agreement. These breaches included the failure to repair the ceilings, the lack of use of the jetty and pontoon for a period, and the failure to repair the lights in the premises. The case was heard and determined by the Queensland Civil and Administrative Tribunal (QCAT).

The legal issues central to this case involved the interpretation and application of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) in relation to the lessor's obligations to repair and maintain the premises. Specifically, the Tribunal had to assess whether the lessor breached the tenancy agreement by failing to address the reported issues in a timely manner and determine the appropriate compensation, if any, to be awarded to the applicants under section 420(1)(e) of the RTRA Act.

The Tribunal found that the lessor did not fulfill its obligations under the tenancy agreement by failing to repair the ceilings, which had existed at the start of the tenancy and were not addressed despite promises to do so. Furthermore, the Tribunal rejected the argument that the subsequent water damage to the ceilings was due to the applicants' misuse of the ducted air conditioner. Regarding the jetty and pontoon, while the Tribunal acknowledged the delay in temporary repairs was partly due to the applicants' notification delay, it found that the lessor's response was not prompt enough. As for the lights, the Tribunal accepted that the reported fault was fixed promptly upon notification. Consequently, the Tribunal ordered that the lessor pay the applicants compensation for the breaches identified, calculated as a percentage of the rent.

The Tribunal concluded that the Residential Tenancies Authority should release the rental bond to the applicants, less certain charges, and that the lessor should pay the applicants compensation of $3,875.50 within 14 days of the date of the order. This decision underscored the importance of the lessor's adherence to its maintenance and repair obligations under the tenancy agreement.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The repairs to the jetty were completed on 18 November 2022.Respondent’s evidence The newer watermarks on the ceilings, Mr Holland stated, were caused by the applicants “… misuse of the ducted air conditioner running temperature too low.” The notices to remedy breach are invalid, he asserted, because the grounds are the opinions of the applicants, not an approved tradesperson. The temporary repairs to the jetty were delayed by the applicants. The faulty lights were reported by the applicants to the respondent on 25 April 2022. An electrician repaired the fault. The failure of the dishwasher was reported by the applicants to the respondent on 3 May 2022. It was replaced on 27 July 2022 but could not be fully pushed back under the bench because of an obstruction. On 8 July 2022 a broken tile on the roof of the premises was repaired. The lessor authorised the repair of the ceilings of the bedroom and laundry but not the garage. The applicants notified the respondent the jetty required repair on 29 July 2022. Temporary repairs were arranged on 5 October 2022. The repairs were completed on 23 November 2022. On 29 September 2022 the respondent offered the applicants early termination of the tenancy agreement. They refused the offer. Mr Holland stated the respondent arranged repairs promptly. Any delay was because of the unavailability of tradespersons.DiscussionApplicants’ claims Introduction: The applicants claim a refund of a percentage of rent for the respondent’s failure to repair the ceilings, being without the use of the jetty and pontoon for a period and the failure of the respondent to repair the lights. The Tribunal is not able to order a retrospective reduction in rent for loss of amenity or standard of the premises.[1] It can, however, make an order for compensation under section 420(1)(e) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) for breach of the tenancy agreement. One approach adopted by the Tribunal is to calculate the compensation as a percentage of rent.[1]See Gould v Mazheiko & Anor [2020] QCATA 10, per Daubney J at [15] – [18]. See also Define Property Agents v Sanderson [2021] QCATA 129, per Judicial Member McGill SC at [19]. Ceilings: The condition of the ceilings in the spare room, study and garage existed at the start of the tenancy. The applicants state they were told by the respondent they would be repaired in the first few weeks. I accept their evident. Further water damage to the ceilings, the respondent states, was caused by the applicants’ “misuse” of the ducted air conditioner. The misuse is said to be operating the air conditioner at low temperatures causing condensation on the ventilation ducts. The ceilings were not repaired prior to the applicants vacating the premises. The respondent filed a quotation for the repairs. It is dated 29 November 2022, a short time before the applicants vacated the premises. A note on the quotation records it being approved by the lessor on 30 November 2022.

Decision

Reasons for decision

I will order that the Residential Tenancies Authority pay to the applicants the rental bond less the water consumption charges and the cost of the pet odour treatment. There will be an order that the respondent pay to the applicants the compensation assessed.Decision The decision of the Tribunal is as follows:(a)the Residential Tenancies Authority pay the rental bond in the sum of $5,400.00 as follows:(i) the tenants - $4,953.83;(ii) the lessor - $446.17;(b)the respondent pay to the applicants compensation in the sum of $3,875.50 within 14 days of the date of this order.

Ratio Decidendi

Legal Principle Established

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