Pannell v Gun Court Pty Ltd
[2012] QCAT 558
•2 November 2012
| CITATION: | Pannell v Gun Court Pty Ltd [2012] QCAT 558 |
| PARTIES: | Dean Andrew Pannell (Applicant) |
| v | |
| Gun Court Pty Ltd t/as LJ Hooker Ashgrove Linda Muis Peta Weisfelt (Respondents) |
| APPLICATION NUMBER: | MCDT1766-12 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 26 October 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | J Bertelsen, Adjudicator |
| DELIVERED ON: | 2 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The RTA shall pay out to the parties the bond of $1,620.00 as follows: $1,620.00 |
| CATCHWORDS: | Minor civil dispute – residential tenancy – excessive water charges – co-tenancy claim for electricity and gas |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Dean Andrew Pannell |
| RESPONDENT: | Erin Scanlan and Andre Hadenfeldt on behalf of LJ Hooker |
REASONS FOR DECISION
Application
The applicant seeks reimbursement of the sum $580.00 being the portion of the bond held in his name as well as contributions from the respondents Linda Muis and Peta Weisfelt of the sums of $199.46 and $221.09 respectively on account of their contributions towards gas and electricity at a rented premises situated 29 Arinya Street, Ashgrove. Bond shares are Dean Pannell $580.00, Peta Weisfelt $600.00, Linda Muis $440.00.
Background and evidence
The applicant had been a tenant and resident at the premises for some 4 years prior to vacating on 3 June 2012. At the time there were two other persons resident at the premises, namely Linda Muis and Peta Weisfelt, both of whom vacated on 3 July 2012 being the expiry date of the final general tenancy agreement applicable to the premises that being for the period 4 January 2012 through 3 July 2012.
The premises were not water efficient. That being the case the most the owner could charge in respect of water consumption was excess water usage.
On 17 April 2012 the water retailer for the premises, Queensland Urban Utilities, delivered to the owner an invoice for $2,909.74 for water usage for the period 14 November 2011 through 22 February 2012, a period of 100 days. The invoice recorded consumption of 918 kilolitres in that period (almost 1,000,000 litres). Such consumption was far in excess of that consumption recorded for quarterly periods either before or after. The applicant denied the consumption charged for. In the relevant period the premises was occupied by himself and Mr Bailey. On 8 June 2012 LJ Hooker wrote to Urban Utilities stating, “there is absolutely no possibility on earth that the two residents at the property would have used the amount of water your company is claiming. There have been no dripping taps, showers or leaky toilets at the house during the period in question (14 November 2011 to 22 February 2012). Our office sent a plumber to the property to investigate if there were any hidden leaks on the property and his investigation came back negative, no leaks were found. His report is attached. We can only assume that the water meter “spasmed” or developed some other temporary fault and we respectively request that Urban Utilities withdraw these exorbitant charges and reissue the account adjusted down to the regular and normal consumption pattern for this property.”
Queensland Urban Utilities in its response dated 11 July 2012 states, “possible explanations for how water may have been used include increased activity on the premises, water leaks or unauthorised usage…we are unable to eliminate the possibility of an error or misread in the initial reading taken on 22 February 2012. All the information available indicates that the meter is registering accurately and the water consumption recorded by the meter is correct.”
That letter goes on to set out a water meter reading table which indicates water consumption in kilolitres for the three quarters prior to the quarter in question were 46, 25 and 28 and for the quarter immediately subsequent to the period in question i.e. 22 February 2012 to 21 May 2012 at 33 kilolitres. That table records an average daily consumption of 9,180 litres for the subject period as opposed to an average daily consumption of well under 500 litres and generally under 400 litres for the 3 prior periods and 1 subsequent quarterly period.
The applicant, an engineer, gave compelling evidence with respect to the magnitude of the subject invoice. His comparisons are set out in annexures to his application. For instance the water volume charged for equates to approximately 33% of the water required to fill an Olympic sized swimming pool. The relevant volume of water would cover the entire block of land on which the premises is situated (approximately 600 square metres) to a height of some 3.7 metres. In later 2011 the applicant purchased a spa which he asserted was only filled four times in some six months. This spa would need to be filled over 11 times per day. Given that to fill the spa at the water flow rate applicable to the premises would take two hours, it would take some 22 hours per day filling and emptying the spa to consume the volume of water claimed for the relevant invoice period. The applicant asserted that it was technically impossible for him and/or Mr Bailey to have consumed 918,000 litres of water in the relevant period.
He asserted that it was totally at odds with prior water usage and subsequent water usage.
A statutory declaration by John G Murdock dated 29 May 2012 is attached to the applicant’s application. He states that, “I have not seen, heard, or experienced the residence at 29 Arinya Road using excessive amounts of water. There has been no leakage of water into my yard and I have not noticed any water leakage in the yard of 29 Arinya Road.” The land generally on the side of the road in which the premises is situated slopes away from and downward from the roadway. Mr Murdock is the lower side next door neighbour to the premises at 29 Arinya Road. James Craig Bailey resided at 29 Arinya Road from 23 November 2011 to 20 March 2012. A statutory declaration by Mr Bailey dated 22 May 2012 is attached to the applicant’s application. He spent only four nights at the premises between 12 December 2011 and 20 March 2012. He states that, “I never witnessed nor contributed to any actions that would result in the incomprehensible invoice (Queensland Urban Utilities bill 1000764559, amounting to $2,909.74) for water usage that has been provided to me by Dean Pannell. Furthermore, I never saw any evidence of water leakage or high water usage that could explain such an amount outlined in this invoice.”
The Tribunal accepts the evidence of the applicant as supported by the declarations of Mr Bailey and Mr Murdock as compelling. The Tribunal accepts that water consumption by the applicant in the relevant quarterly period was no different to that in previous quarters or indeed the subsequent quarter. There is no evidence of visual water leakage in the subject quarter and there was no leakage as such that ought properly have been reported by the applicant to the owner's agent. Given the magnitude of the invoice it is impossible to determine whether or not there has in fact been any excess water usage at all in the relevant quarter. Given that Mr Bailey was absent from the premises virtually fulltime from 12 December 2011 through to 20 March 2012 it is highly unlikely that excess water usage would have been incurred in any event, particularly by the one remaining occupant Mr Pannell.
Nor is there any evidence of unauthorised usage as a possible cause for the volume of water allegedly consumed.
The only other possibility appears to be a deep seated water leak running to what was suggested was an old water course at the rear of the premises or a malfunction of the water meter. The first possibility is remote with no evidence to support it.
The water meter at the subject premises is an 8 digit meter. It was suggested by the applicant that reading the last 3 digits where there in fact has been a 3 or 4 digit change certainly points to a strong possibility of a defective water meter or a defective reading. These may be matters for the owner or owner's agent to take up further with Queensland Urban Utilities.
LJ Hooker raised some further issues, firstly the necessity to remove garden waste. The applicant asserted that this was the first he was aware of any such claim. No invoice was produced to support the sum claimed; nor was there available any photographic or other evidence from which one might glean the necessity for any such removal. This expense is not sufficiently proved. A sum of $308.00 was claimed in respect of mould removal from the curtains in the premises. No invoice was produced to support this claim. Nor was any photographic evidence available. Nor was it apparent the extent to which mould was present. Additionally in email correspondence of 21 May 2012 the applicant complained of “leaking roof – Linda’s room”. He stated in that email that “for months I asked Renarte about fixing leaks on the roof above Linda’s room, the house leaked and it produced black algae on the roof… I’ve asked Renarte to check for years about full gutters also and also the gutters building up causing possible leaks…” In these circumstances it is likely that leaks may well have contributed to mould build up on the curtains. In these circumstances the Tribunal does not consider there is sufficient evidence to warrant any payment in respect of mould on curtains.
There was an additional claim for washing of curtains. Once again evidence is lacking, no invoice, no photographs, no detailed evidence of the extent to which the curtains may have been dirty, dusty etc. Additionally the applicant asserted that curtains were washed some 2 months prior to final vacate. In these circumstances there is simply not enough evidence to warrant payment of any such claim.
Applicant’s claims for contribution to gas and electricity
The premises was occupied by the applicant as tenant and by Mr Bailey through to 20 March 2012 when Mr Bailey vacated. Thereafter, with apparently the owner's agent being in agreement, two other persons took up residence at the premises. These persons were Linda Muis and Peta Weisfelt. They have been made respondents to this application. They have been duly notified of today’s hearing.
The applicant has given evidence that both these persons agreed to contribute a percentage payment as set out in the clear and logically calculated table annexed to the applicant’s application. Given that it is usual in shared accommodation for the users of gas and electricity to contribute and in the absence of any response on the part of Linda Muis and Peta Weisfelt the Tribunal on balance accepts that the contribution for Linda Muis for the period 26 April 2012 through 3 July 2012 is $221.09 and for Peta Weisfelt for the period 3 May 2012 through 3 July 2012 is $199.46. Accordingly these sums ought to be deducted from the portions of the bond applicable to those two persons and applied to that portion of the bond which is refundable to the applicant.
Findings
There is no evidence which points to excessive use of water by the applicant particularly in the period 14 November 2011 to 22 February 2012.
More than likely there never was any water leak.
The post tenancy compensation sought by the owner's agent has not been sufficiently proved to warrant any payment.
The applicant is entitled to contributions from his two co-occupiers as claimed. Such contributions are properly deducted from their bond share.
Order
The RTA shall pay out to the parties the bond of $1,620.00 as follows:
Dean Pannell $1,000.55
Peta Weisfelt $ 400.54Linda Muis $ 218.91
$1,620.00
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