Riksen v Trimble
[2012] QCAT 282
•11 July 2012
| CITATION: | Riksen v Trimble and Anor [2012] QCAT 282 |
| PARTIES: | Mark Riksen (Applicant) |
| v | |
| Vic Trimble Ray White Bulimba (Respondents) |
| APPLICATION NUMBER: | MCDT239-12 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 27 March 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | K O’Hanlon, Adjudicator |
| DELIVERED ON: | 11 July 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. VE and CJ Trimble pay to the applicant, Mr Risken, the sum of $5,200.00 within 28 days of the date of this order. 2. The application for costs and loss of amenity in relation to the fans and air conditioning is not allowed. |
| CATCHWORDS: | Contract – terms – loss of amenity |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Mark Riksen and Mrs Amita Riksen |
| RESPONDENT: | Mr Vic Trimble and Andrea Jones (Ray White) |
REASONS FOR DECISION
This matter rises out of the applicant’s claim for excessive electricity charges for the “non-working AC and fans in premise (ongoing)”. In addition the applicant, in the addendum to their application, claims the rent be reduced because of the facility (boat berth) the applicant claims was associated with the rental property was not available for use by the applicant. The reasons the applicant seeks such orders are set out clearly in the addendum to their application.
The respondent on the other hand disputes the claim and in so far as the boat berth is concerned contends that the boat berth associated with the property was never part of the agreement but rather the applicant had the use of the “public jetty”. As to the air conditioning excessive electricity costs the landlord Mr Vic Trimble contends that there is nothing wrong with the air conditioning and has had numerous attempts at looking at the problem for the applicant.
At the hearing of this matter on 27 March 2012 Mrs Riksen gave evidence that they had used the fans and air conditioning to such an extent that the electricity costs were extremely high.
Mr Trimble gave evidence as assisted by the Ray White agent that the numerous attempts by electrical contractors and air-condition experts to look at the problem, all of which was to no avail and the air conditioning plant was appropriate for the premises.
Mr Riksen gave evidence that his use of the jetty was not provided despite his contention that it was part of the tenancy agreement and that he had intended to purchase a boat in America to moor at the berth. Unfortunately for both parties the Brisbane floods occurred and washed away the berthing facilities for quite some time.
As a result of the contrary evidence directions were made for the parties to file certain submissions and documents. It is noted that the only document filed was the further electrical air conditioning experts report submitted by the respondent and received by the Tribunal on 26 April 2012. The applicant did not file any document in relation to the directions.
As to the air conditioning Mrs Riksen gave evidence she would set it at 16 degrees because she stated that the air conditioning was not working properly. There is evidence before the Tribunal that the agents for the landlord and/or the landlord had organised numerous attendances by air conditioning experts to try to resolve this matter. In the final air conditioning report provided to the Tribunal by the landlord on 26 April 2012 it noted that in essence the report says that the air conditioning complies with specifications for the property and had been installed in accordance with the standards outlined in the compliance specification and is working to the required standards. It is further noted that the engineers report says, “on a day of service the outdoor temperature was measured at 32 degrees. Within an hour of running and servicing the system the indoor temperature was measured at 25 degrees. This is well within the normal operating range.” Furthermore, the engineer found that the controls had been set at 16 degrees which would increase the electricity usage for the apartment exponentially to normal operating temperatures.
It is common knowledge and well publicised by energy producers that one should only run air conditioning at 24 degrees to alleviate high electricity costs. It appears from the evidence that the Riksens were new to Queensland weather and may not have been aware of the advice to use air conditioning. Therefore I cannot find for the applicant in relation to any increased costs for electricity usage and disallow this part of the claim.
As to the use of the jetty seemingly attached to the unit I note that in the addendum to the general tenancy agreement signed by the parties on 23 October 2010 and 25 October 2010 it provides as follows:
“The tenants will be entitled to use swimming pool and marine jetty facilities as part of the lease agreement”.
Shortly after that date, according to the email messages attached to the application and during the hearing, the applicant advised that they were of the clear understanding that berth 7 was included in their lease of the unit and was part of the tenancy agreement and in fact that is why they asked for clarification as to the use of the marine berth 7 in their email to the Trimble’s then agent.
On the other hand the landlord, Mr Vic Trimble asserts that the berth 7 was not available, the use of the jetty facilities only referred to public use matters. Clearly there has been a misunderstanding here and I find that at all times because of the evidence before me that berth 7 was intended to be utilised for and on behalf of the tenants as part of the tenancy agreement.
Despite the loss of the jetty because of the floods, nevertheless it was part of the tenancy agreement and accordingly because of the use not provided to the tenant I find that the tenant should be reimbursed for the loss of the amenity of the berth.
I am reinforced in my finding as Mr Trimble gave evidence that after the berth and jetties were repaired he offered berth E on December 2011 to the tenant. To my mind this further enforces the right of the tenant to the use of berth 7.
During the course of evidence it was suggested by the tenants and not disputed by Mr Trimble that the rate of use of the berth would equate to approximately $400-$500 per month loss of the berth. Therefore I find that because of the loss of the use of the berth from October 2010 until the date in December 2011 Mr Trimble offered an alternative berth, the rental should be reduced by the amount of the lesser of that amount $400 per month. Accordingly Mr Trimble should reimburse the tenants the sum of $5,200 for that period.
Orders
VE and CJ Trimble pay to the applicant, Mr Risken, the sum of $5,200.00 within 28 days of the date of this order.
The application for costs and loss of amenity in relation to the fans and air conditioning is not allowed.
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