Pennell v Harrison-Gibb

[2016] QCATA 151

CITATION: Pennell & Anor v Harrison-Gibb & Anor [2016] QCATA 151

PARTIES:	Fredrick Pennell Leanne McIvor (Applicants/Appellants)
v Emily Harrison-Gibb Daniel Ferguson (Respondents)
APPLICATION NUMBER:		APL492-15

MATTER TYPE: Appeals

HEARING DATE: 12 August 2016

HEARD AT: Brisbane

DECISION OF:	Justice Carmody
DELIVERED ON:	6 October 2016

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Leave to appeal is granted.

2.    The original decision in T108/15 to award the respondents $2035 be set aside.

3.    The respondents’ rent account be credited in the amount of $874.20.

4.    The credit be discharged by a payment by the applicants to the respondents of $874.20.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – FUNCTIONS OF APPELLATE COURT – IN GENERAL – where the applicants were the lessors of a rental premises – where the applicant seeks leave to appeal a tribunal decision to award the respondents compensation for rent paid to live in uninhabitable premises – where the tribunal made findings of fact based on photographic and oral evidence – whether the decision was unreasonable – whether the tribunal made a mistake of fact – whether those findings of fact should be overturned

LANDLORD AND TENANT – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – INSPECTION AND REPAIR – where the parties entered a fixed term tenancy – where the respondents issued a maintenance request – where the request went unremedied – where a wet patch in one bedroom meant it was uninhabitable – where the respondents paid until the end of their tenancy – where the tribunal awarded compensation – whether the tribunal assessed the correct quantum of rent reduction

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 6, 142(3), 147

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 185

Campbell v Donker [2013] QCATA 6

Fox v Percy (2003) 214 CLR 118

Johnson v Perez (1988) 166 CLR 351

APPEARANCES and REPRESENTATION (if any):

APPLICANT/APPELLANT      Ms L McIvor

RESPONDENT  Mr D Ferguson

REASONS FOR DECISION

1. The applicants (lessors) apply for leave to appeal a tribunal tenancy decision in T108/15 because they claim that ordering them to pay the tenants compensation of $2035 for not maintaining the tenancy in a habitable state was based on a mistake of fact and unreasonable.

The context 

1. The parties signed a general REIQ tenancy agreement for a fixed term of six months from 13 November 2014 to 12 May 2015 at a weekly rental of $370 (or $52.86 per day).  The roof of the premises was covered with a tarpaulin throughout most of the tenancy and was replaced shortly after the tenants left.

2. On 23 January 2015 (about two months into the tenancy), the tenants made a maintenance request to fix water that had apparently seeped down the walls from the roof and up through the carport to the fourth bedroom, making it “smelly, musty and stale”. A plumber found no evidence of leakage or water marks leading from the roof to the wet bedroom carpet but conceded that leaks were hard to find…