Quaresmini v L J Hooker

Case [2018] QCATA 116

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Quaresmini v L J Hooker [2018] QCATA 116

PARTIES:

LAURENCE QUARESMINI
(applicant/appellant)
v

L J HOOKER (SALISBURY)

(respondent)

APPLICATION NO/S:

APL057-18

ORIGINATING APPLICATION NO/S:

MCDT431 of 2017

MATTER TYPE:

Appeals

DELIVERED ON:

21 August 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Roney QC

ORDERS:

The applications are dismissed.

CATCHWORDS:

LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OTHER MATTERS – whether breach of covenant  to repair by landlord  gives a right to set off  against a liability for or liquidated claim for rent – abatement of rent where arguable default of the landlord in satisfying a repair covenant or to make premises habitable at commencement of lease

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 419, s 429

Camden Nominees v Forcey [1940] Ch 352
Chatfield v Elmstone Resthouse Ltd [1975] 2 NZLR 269
Graves v Paul Vertullo Real Estate [2011] QCATA 270
Knockholt Pty Ltd v Graff [1975] Qd R 88
McDonnell & East Limited v. McGregor (1936) 56 CLR 50
Lee-Parker v Izzet (1971) 1 WLR 1688
Robbins v Jones [1863] 143 ER 768
Shields v Deliopoulos [2016] VSC 500
Smith v Marrable (1843) 11 MNW 5; 152 ER 693
Taylor v Beal (1591) Cro Eliz 222

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

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

The nature of the application

Procedural issues and timing of the applications

“Fresh evidence”

The Applicant’s statement

The hearing

The findings

The relevant legal principles

The nature of the application

  1. This is an application for leave to appeal, simultaneously seeking to appeal a decision of this Tribunal made on 31 January 2018 that the Applicant (who was the Respondent below and a tenant of the Respondent here), pay the Respondent here the sum of $2,730.08 within 30 days. That award reflected an amount of $4,450.08 for rental arrears held to be due, less the sum of $1,720.00 which had been received by the Respondent by way of rental bond. The practical effect of the order was that the Applicant had been found to be liable for rental arrears in that total amount of $4,450.08 before the bond monies were brought into account.

  2. The original application was brought by the respondent under s 419 and s 429 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). The orders originally sought were for the tenant to pay rental arrears and for the cost of removal of material left at the house, and the cleaning of the house after the Applicant, the tenant, vacated 188 Sherbrooke Road, Willawong. The Applicant vacated the premises on 27 July 2017. A notice to remedy breach had been served on the tenant on 4 July 2017 in respect of rental arrears and unpaid water accounts. A notice to leave was sent on 15 March 2017.

  3. The original application sought that the following be…

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Details
AGLC
Quaresmini v L J Hooker [2018] QCATA 116
Case
[2018] QCATA 116
Decision Date

CaseChat Overview and Summary

Quaresmini v L J Hooker involved a dispute between the tenant and landlord over whether the landlord breached the covenant to repair, which led to the tenant withholding rent. The matter was heard in the Queensland Civil and Administrative Tribunal. The legal issues that the court was required to decide were whether the breach of the covenant to repair by the landlord gave the tenant the right to set off against a liability for or a liquidated claim for rent and whether the court should abate the rent where there was an arguable default of the landlord in satisfying a repair covenant or to make the premises habitable at the commencement of the lease.

The court found that the tenant had not provided any evidence to support his claims of the uninhabitable conditions of the premises or that he had notified the landlord of the issues. The court also noted that the application for leave to appeal was served two days late, but this did not seem to be fatal to the application. The court further found that the tenant had not provided any objective evidence that he had issued any notice or complaint or other application suggesting there had been alleged breaches by the landlord of the tenancy agreement. The court concluded that the application for leave to appeal did not have merits and dismissed the applications.

The court ordered that the applications be dismissed.

Orders

Orders of the court

The applications are dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Respondent also complains about a non-compliance with directions dated 19 March 2018 which required other steps to be taken by the Applicant within certain timeframes. It is suggested that the application for leave to appeal was served two days late. Again, it does not seem to me that this ought be treated as fatal to the application. ‘Fresh evidence’ The Respondent’s submissions otherwise address the question of whether fresh or additional evidence ought be allowed on the part of the Applicant. The issue is whether in fact it is fresh evidence, and whether it was always available and in broad terms, by reference to legal principle, whether the application generally has merits. This is a minor civil dispute in respect of which leave is necessary to appeal. It has been accepted that leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument should be allowed, and a decision of the Appeal Tribunal would be to the public advantage, or there is a reasonably arguable case of error in the primary decision and reasonable prospects that the Applicant would obtain further substantive relief: per Senior Member Stilgoe AO in Graves v Paul Vertullo Real Estate [2011] QCATA 270. As was also identified in the Graves decision, the second question is whether leave is necessary to correct a substantial injustice to the Applicant, caused by some error. Other than to raise those issues, the Respondent does not address in specific terms the merits of the grounds set out in the application, or indeed the question of whether there has been a miscarriage and a denial of natural justice, as the application asserts.The Applicant’s statement In his statement, the Applicant contends that the Adjudicator erred in not taking into consideration that the house was in unliveable condition, that the toilet was away from the house, and other aspects of the condition of the property. He complains that the house flooded underneath causing damage to some of his property and described various other aspects of what he perceived to be dangerous or unsatisfactory conditions about the property. He contends that he told LJ Hooker that he was not going to pay anymore rent unless the repairs were completed, although there is no independent evidence that such a request was made. He contends that had the Adjudicator who was hearing the matter looked at his witness statements he would have agreed the house was in an un-rentable condition. He contends that after he moved out, the Respondent could not rent the property without doing certain repairs, and even then reduce the rent by $35.00 per week, effectively as a storage space. There was no objective evidence that during the subject tenancy, the Applicant issued any notice or complaint or other application suggesting there had been alleged breaches by the Respondent lessor of the tenancy agreement.The hearing There is a transcript of the hearing before the Adjudicator. In the course of that hearing, for which the Applicant was present throughout, it was identified that the sum of $4,450.08 was being claimed for unpaid rent for the period from 15 May 2017 until 26 July 2017 at $430.00 per week, plus house cleaning costs for the inside of the property, junk removal and the other matters listed in these Reasons above. Both of the Applicant’s witnesses were at the hearing and available to be called.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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