Oak Property Group v Walsh - [2024] QCATA 137

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Oak Property Group v Walsh [2024] QCATA 137

PARTIES:

OAK PROPERTY GROUP

(applicant/appellant)

v

MARNIE WALSH
MELINDA WALSH

(respondents)

APPLICATION NO/S:

APL099-24

APL101-24

ORIGINATING APPLICATION NO/S:

MCDT323-33

MCDT366-23

MATTER TYPE:

Appeals

DELIVERED ON:

16 December 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

In APL099-24

1.     Leave to appeal granted.

2.     Appeal allowed.

3.     The decision of the Tribunal dated 21 February 2024 is set aside.

4.     The matter is remitted to the Tribunal for reconsideration according to law and in accordance with these reasons.

In APL101-24

1.    Leave to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – appeal from decision of an adjudicator – where tenants gave notices to remedy breaches of tenancy agreement – where tenants commenced proceedings without first participating in pre-proceeding conciliation – whether items of complaint, the subject of the proceedings, were ‘emergency repairs’ – where adjudicator did not give consideration to whether repairs were emergency repairs - whether adjudicator erred in ordering repairs

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 94, s 106, s 169, s 185, s 191, s 214, s 220, s 221, s 221A, s 415, s 416

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146, s 147

Bauer v McMillan & Anor [2013] QCATA 140

Cachia v Grech [2009] NSWCA 232 (30 July 2009)
Ericson v Queensland Building Services Authority [2013] QCA 391
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
House v The King (1936) 55 CLR 499
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Vetter v Lake Macquarie City Council (2001) 202 CLR 439

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

These are two related but separate appeals arising out of a decision by the tribunal in its minor civil disputes jurisdiction relating to a residential tenancy. The agent is the appellant. The tenants are the respondents. I will refer to the parties as agent and tenants in these reasons.
Matter APL099-24 is an appeal from a decision made by an adjudicator on 27 March 2024. The relevant history of the proceeding below is:
(a)23.10.23 – tenants file application for orders relating to alleged failures by the lessor to maintain and repair the property;
(b)29.11.23 – hearing adjourned, part heard, to 20 December 2023;
(c)24.01.24 – hearing adjourned to 21 February 2024;
(d)27.02.24 – Tribunal orders agent to undertake repairs to property;
(e)27.03.24 – Tribunal orders that the parties file and serve submissions regarding compensation with matter to be relisted for hearing;
(f)15.04.24 – agent files appeal.
Matter APL101-24 is an appeal from a decision made by an adjudicator on…

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 Oak Property Group v Walsh

Details

AGLC: Oak Property Group v Walsh [2024] QCATA 137
Case: [2024] QCATA 137
Decision Date: 16 December 2024

CaseChat Overview and Summary

In the matter of Oak Property Group v Walsh, the appeal involved the decision of an adjudicator regarding repair orders issued under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). The tenants had given notices to remedy breaches of the tenancy agreement, and they subsequently commenced proceedings without participating in the pre-proceeding conciliation process, which is mandatory unless the application is urgent. The primary issue before the court was whether the repairs that were the subject of the tenants' complaints qualified as "emergency repairs" under the Act, and whether the adjudicator had erred in ordering these repairs without properly considering this qualification. Additionally, the court examined if the adjudicator had correctly exercised their discretion in ordering repairs and whether they had considered irrelevant factors in doing so.

The court found that the adjudicator had indeed erred in making the repair orders, with the exception of the front and rear sliding doors. The court was satisfied that the adjudicator had taken into account considerations that were irrelevant to determining whether the repairs constituted emergency repairs. This error in law led to the conclusion that the adjudicator's decision should be set aside. The court emphasized that the adjudicator's discretion to order repairs was exercised incorrectly, as they had improperly considered factors that should not have applied in this context. However, the adjudicator was found to be correct in ordering repairs for the front and rear sliding doors, as these did qualify as emergency repairs under the Act.

The court granted leave to appeal in APL099-24 and allowed the appeal, setting aside the Tribunal's decision dated 21 February 2024. The matter was remitted to the Tribunal for reconsideration in accordance with the court's reasons. In APL101-24, the court refused leave to appeal, noting that there was little utility in pursuing the appeal as the tenants had vacated the premises, and thus, the appellant had no reasonable prospect of obtaining substantive relief. The court also found that no substantial injustice would be corrected by granting leave to appeal.

In summary, the court's orders were to grant leave to appeal in APL099-24, allow the appeal, set aside the Tribunal's decision, and remit the matter for reconsideration according to law. In APL101-24, the court refused leave to appeal.

Orders

Orders of the court

In APL099-24

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of the Tribunal dated 21 February 2024 is set aside.

4. The matter is remitted to the Tribunal for reconsideration according to law and in accordance with these reasons.

In APL101-24

1. Leave to appeal refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I have found that the adjudicator erred in making the repair orders with the exception of the front and rear sliding doors. I am satisfied that the adjudicator took into consideration irrelevant considerations in exercising the discretion to order the rent reduction, those considerations being the items complained of that should not have been the subject of an emergency repair order. The adjudicator thereby erred in law. APL099-24 – conclusion The determination of the appeal on the questions of law I have identified, does not decide the matter entirely in the appellant’s favour. This is because I have found that the adjudicator was entitled to make the emergency repair order in relation to the front and rear doors. Accordingly the decision below must be set aside and the matter remitted to the Tribunal for reconsideration according to law and in accordance with these reasons. Consideration – APL101-24 The adjudicator refused the lessor’s application for a warrant of possession to issue based on the tenants’ failure to pay rent. The appellant concedes there is little utility in the appeal noting that the tenants have vacated the premises. Accordingly, even if there is an arguable case of error by the adjudicator there is no reasonable prospect that the applicant will obtain substantive relief nor is leave to appeal necessary to correct a substantial injustice to the applicant. Accordingly in APL101-24, leave to appeal is refused.

Ratio Decidendi

Legal Principle Established

The final order made by the adjudicator reflected the repair order to all of the items referred to above, in addition to the compensation order of $100.00 per week payable to the tenants by the landlord. APL099-24 - consideration As I have earlier observed, the tenants brought their application on an urgent basis. By s 416(1) of the RTRAA a lessor or tenant may apply to QCAT about an issue only if the applicant has first made a dispute resolution request and the conciliation process has ended without an agreement being reached because the RTA refuses to provide a conciliation service; or a party refuses to participate in the conciliation process; or the parties participate in the conciliation process and no agreement can be reached. An applicant may also apply to QCAT if a conciliated resolution is reached however the applicant believes the other party has breached the agreement. Section 416(2) provides that s 416(1) does not apply to an ‘urgent application’. The meaning of ‘urgent application’ is set out at s 415. Relevant to the present appeal is s 415(5)(e). An application about emergency repairs pursuant to s 221 is an ‘urgent application’. By s 221(1)(c) of the RTRAA the tenant may apply to QCAT for a repair order for emergency repairs if the tenant has been unable to notify the lessor or nominated repairer of the need for the repair or the repair was not made within a reasonable time after the tenant gave the lessor or nominated repairer notice of the need for the repair. The meaning of ‘emergency repairs’ is found at s 214(1) of the RTRAA:Emergency repairs are works needed to repair any of the following—(a) a burst water service or a serious water service leak;(b) a blocked or broken lavatory system;(c) a serious roof leak;(d) a gas leak;(e) a dangerous electrical fault;(f) flooding or serious flood damage;(g) serious storm, fire or impact damage;(h) a failure or breakdown of the gas, electricity or water supply to premises;(i)a failure or breakdown of an essential service or appliance on premises for hot water, cooking or heating;(j) a fault or damage that makes premises unsafe or insecure;(k)a fault or damage likely to injure a person, damage property or unduly inconvenience a tenant of premises; and(l)a serious fault in a staircase, lift or other common area of premises that unduly inconveniences a tenant in gaining access to, or using, the premises. By s 221A the tribunal may make a repair order. In considering an application for a repair order the tribunal must consider the conduct of the lessor and lessor’s agent, the risk of injury the damage is likely to cause a person at the premises and the loss of amenity caused by the damage.[9] The tribunal may also consider any other relevant matters.[10] In granting a repair order the tribunal may make any order, or give any directions, about the repairs the tribunal considers appropriate in the circumstance.[11] [9]Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’) s 221A(2)(a).[10]Ibid s 221A(2)(b).[11]Ibid s 221A(3)(a).