Pokarier v Rental Express

[2010] QCATA 16

CITATION: Pokarier v Rental Express [2010] QCATA 16

PARTIES:	Alison POKARIER (Applicant)
v
Rental Express (Respondent)

APPLICATION NUMBER:            APL003-10               

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: President

DELIVERED ON:   7 April 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  

Application for leave to appeal dismissed

CATCHWORDS : 

RESIDENTIAL TENANCIES  - NOTICE TO LESSOR TO REMEDY BREACH –– Residential Tenancies and Rooming Accommodation Act 2008, ss 181(1), 185(3)(a), 185(3)(c) – MEANING AND EFFECT - whether lessor, as a result of actions of third parties, failed to ensure there were no legal impediments to occupation of premises, failed to maintain premises fit for tenant to live in, or failed to ensure laws dealing with health and safety of persons using or entering premises were complied with

RESIDENTIAL TENANCIES  - GROUNDS FOR TERMINATION ORDER – whether lessor has intentionally or recklessly caused injury to tenant

Residential Tenancies and Rooming Accommodation Act 2008, ss 181(1), 185(3)(a), 185(3)(c), 335(1), 344

APPEARANCES and REPRESENTATION (if any):

APPLICANT: 

RESPONDENT: 

REASONS FOR DECISION

1. Ms Pokarier is a tenant in rental premises at Hartopp Lane, Kelvin Grove, which are managed by the respondent. In December 2009 she applied to this Tribunal for determination of a residential tenancy dispute in which she asserted that the managers had failed to respond appropriately to two Notices to Remedy Breach she had served upon them in October 2007, and December 2009.

1. The notices were in Form 11 under the Residential Tenancies Act 1994. The legislation now governing tenancies of the kind arising here is the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA) but nothing turns upon that.

1. Particulars of the first breach, set out in Ms Pokarier’s 2007 Notice, are as follows:

   On 30 October, 2007 I was woken at 1am by a violent physical dispute on floor 3 at 1 Hartopp Lane. I want this dispute resolved immediately as the police were called and attended the scene. I don’t want it to occur again. I am not getting peaceful enjoyment at the premises.

1. Her second Notice, in December 2009, alleged the following breach of her tenancy agreement:

   Ongoing violence, abuse, domestic violence, that is threatening the health and safety of residents at 1 Hartopp Lane, particularly women and children by other residents occupying the premises and people entering the premises. Breach of RTA and for sound Rooming Accommodation Act 2008 Sec 185: Lessors obligation Subsection 3(a) and 3(c). On 9/12/09 gunshots were fired and police called. Carmel has been unwilling to assist with the campaign to prevent future violence. 

It is common ground that ‘Carmel’ is Ms Carmel Boutchard, a   representative of the respondent Rental Express, who appeared on its behalf in the proceedings before an adjudicator of this Tribunal when he           heard Ms Pokarier’s application on 20 December 2010, and dismissed it.

1. In the proceedings before the learned adjudicator Ms Pokarier sought 11 specific orders. The first two asked that she be deemed as ‘not suitably’ housed for the purpose of obtaining social housing assistance from the Queensland Government Department of Housing, and that her application for Social Housing Assistance reflect that decision.

1. She then sought assistance with finding alternative accommodation provided by the Department of Housing by mid February 2010 at Maryborough, or Harvey Bay; financial assistance with finding a private rental property at Maryborough or Harvey Bay by mid February 2010, in amounts of $800 a new bond and $800 for four weeks rent in advance; a full refund of the bond on her current premises and relief from rent until she left those premises; financial assistance with relocation, in the sum of $1400; payment of fuel expenses of $63; payment of her telephone bill, fuel costs associated with looking for alternative accommodation and compensation for lost income due to ill health in amounts of $40.38, $126 and $413.57; and, payment of council parking fines of $186.20, and $58.10.

1. Her application to the adjudicator was accompanied by a fourteen page typewritten document alleging that some of the apartments at Hartopp Lane are occupied by violent criminals and have been the site of many violent domestic disputes, arguments, drug and alcohol infused fights, two suicides, another death and a stabbing; that because of her own unhappy personal history and ongoing illness she has fallen into the bad company of some of the other tenants and, in the result, developed a drug problem; and, that her Notices were intended to alert the managers to these circumstances, which the managers have wrongly failed to remedy. 

1. The learned adjudicator, in careful reasons, concluded that the circumstances of which Ms Pokarier complained were not a defect or deficit in the rental premises themselves, to which the Notices and the relevant legislation were directed but, rather, about the actions of third parties in or about the premises.  Those actions and the events surrounding them were, the adjudicator held, outside the purview of the legislation concerning notices of that kind which were not capable of attracting the relief Ms Pokarier sought.

1. Ms Pokarier seeks leave to appeal the adjudicator’s decision. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009, s 142 (3)(a)(i). Her submissions in the support of the application amount to over 50 pages, of which about 10 are documents and the rest single spaced typewritten submissions. The pages are unnumbered but a section headed ‘Application for Leave to Appeal’ contains allegations of particular errors of law the adjudicator is said to have made.

1. The first rests on the construction of s 185(3)(a) which requires the lessor to ‘…maintain the premises in a way that the premises remain fit for the tenant to live in’. This, the learned adjudicator determined, refers to the subject premises themselves, ie the studio actually rented by the tenant and not to the ‘…social amenity of the area in which the premises may be situated’. Ms Pokarier also refers to s 185(3)(c) which requires that the lessor ‘…must ensure any law dealing with issues about health and safety of persons using or entering the premises in complied with’ and, s 181(1) under which ‘…the lessor must ensure there is no legal impediment to occupation of the premises’ – which, she says, must include preventing convicted criminals acting in a way which is threatening to residents.

1. The submissions also assert that the manager has failed to make and enforce house rules under s 268(1) which permits rules to be made, as Ms Pokarier’s submits in particular, about the drinking of alcohol or the illegal consumption of drugs, and the making of noise. She also complains that the house rules have not been displayed, as s 276 provides.

1. Later, she says:

   Brisbane Housing Company and Rental Express in their failure to remedy Notices of Breach, enforce house rules, and not ensure there is no legal impediment to occupation of the premises has tragically forced me into association with these criminals who are engaging in unscrupulous behaviour and suspected criminal activities which has resulted in me requiring rehabilitation and trauma counselling. My mental health has deteriorated and I have been experiencing symptoms of trauma including confusion.        

1. It is plain from Ms Pokarier’s very detailed material, which includes medical reports, that she has been caused significant mental upset and illness as the consequence of a violent crime at some unknown time in the past, and still suffers quite serious symptoms; and that events occurring from time to time in and around the apartment complex in which she resides – including suicides, and violent crimes, and the use of illegal drugs – have caused her further distress and exacerbated her illness.

1. These things are naturally to be regretted. For the reasons identified by the learned adjudicator, however, they do not involve any breach by the lessor of its obligations under the RTRA, nor breaches remediable as a consequence of the Notices she served upon the manager; nor, even if a breach had occurred, do they give rise to an entitlement, in her, for any of the remedies she seeks.

1. The Residential Tenancies Act 1994 was repealed by the RTRA but, under s 530 of the latter, residential tenancy agreements under the former continued with full force and effect. Under the RTRA a tenant who believed ‘on reasonable grounds’ that the lessor had breached a term of the agreement and had not remedied the breach can give a Notice to Remedy: s 301. If the lessor fails to remedy the breach, or if it is established that the lessor has intentionally or recklessly caused injury to the tenant (including injury to the tenants person) the tenant may apply for a termination order: (ss 309(2), 311).

1. Although Ms Pokarier’s application to the Tribunal only sought, on its face, compensation, it is appropriate to address it as though it also sought a termination order. Certainly, her submissions to the adjudicator were in terms that she was obliged to leave the premises and was actively seeking to do so.

1. Such an application may be brought under s 335(1) without giving a notice to leave. A termination order based upon injury to the tenant may be made if the Tribunal is satisfied the applicant has established the necessary grounds: s 344.

1. The difficulty for Ms Pokarier arises, however, from an absence of evidence that any injury she may have suffered has been intentionally or recklessly caused by the lessor (or, here, its agent the manager).

1. The events recorded in both her Notices appear to involve the acts of other tenants, some of them of an apparently criminal nature, as do a number of other incidents mentioned in her lengthy submissions to the adjudicator and here. The transcript of the proceedings before the adjudicator shows Ms Pokarier complained she felt unsafe and the premises were ‘unliveable’ in a way which constituted breaches of s 185. That provision imposes obligations upon the lessor to ensure the premises are, among other things, fit for the tenant to live in.

1. As a lengthy exchange in the transcript of the hearing shows, the adjudicator offered Ms Pokarier every opportunity to establish that the manager’s conduct in the face of anti-social behaviour by other tenants involved breaches of its obligations under the RTRA, but was simply unpersuaded that the manager had it within its power to do anything meaningful about that behaviour.  That is unsurprising; anti-social conduct is, by its nature, often sudden and unpredictable.   

1. Although the adjudicator did not address the question whether the manager’s conduct was intentional or reckless, there was nothing in the evidence to suggest that was the case and, indeed, submissions from Ms Boutchard and also Ms Miller, one of the managers of Rental Express, pointed out that the premises are ‘government housing’ and ‘…that sort of behaviour occurs in all of the buildings and residences’[1].

   [1] Transcript p 1-14.5

1. Finally, it might have been contended for Ms Pokarier that the lessor had failed to take reasonable steps to ensure that she had quite enjoyment of the premises but, again, there was no evidence to show that the manager had failed to take appropriate steps in the face of anti-social behaviour by other tenants. Indeed, the evidence from Ms Boutchard and Ms Miller was that they were in regular contact with police to address behavioural difficulties in the premises, and had also acted to obtain remedies under the RTRA against misbehaving tenants.

1. In the circumstances there is no demonstrated or discernable error in the learned adjudicator’s decision. Although the hearing before him did not canvass all of the arguments which might, potentially, have been advanced on Ms Pokarier’s behalf they have been fully explored in this application. The exercise reveals there is no question of importance about which further argument is desirable or that a decision of the Appeal Tribunal would be of public benefit. Leave to appeal should, then, be refused.