Sara v Ray White Surfers Paradise

[2013] QCATA 46

CITATION: Sara v Ray White Surfers Paradise [2013] QCATA 46

PARTIES:	Mr Ryan Sara (Applicant/Appellant)
v
Ray White Surfers Paradise (Respondent)

APPLICATION NUMBER: APL230-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 25 February 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.   Leave to appeal refused

CATCHWORDS:

MINOR CIVIL DISPUTE – whether grounds for leave to appeal

RESIDENTIAL TENANCY – where damage to unit through activation of sprinkler – whether tenant liable for repair costs

Residential Tenancies and Rooming Accommodation Act 2008 ss 188, 419

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Sara rented a unit at the Gold Coast through Ray White Surfers Paradise. While he was overseas, Mr Sara allowed Mr Tostee to live in the unit. Mr Tostee left a pan on the stove while he had a shower. The sprinkler activated, flooding the unit and the common property adjacent. On Ray White’s application, the Tribunal ordered Mr Sara pay Ray White $5,113.52 compensation for the damage caused to the unit.

2. Mr Sara has appealed the learned Adjudicator’s decision. He says that Ray White’s application related only to malicious damage and that Ray White had not proved that the damage was malicious. Mr Sara does not accept that Ray White had a right to claim for accidental damage.

1. Because this is an appeal from a minor civil dispute, Mr Sara must seek leave to appeal. The Tribunal may grant leave if the dispute raises a question of general importance and the public would benefit from a decision on that question. It may also grant leave if Mr Sara shows a reasonably arguable case of error and a reasonable prospect that he will obtain substantive relief if the error is corrected.

1. Ray White applied for compensation under s 419 of the Residential Tenancies and Rooming Accommodation Act2008. That section allows a claim for breach of the tenancy agreement. Section 188 of the Act sets out the tenant’s obligations. Mr Sara is right in saying that s 188(2) refers to malicious damage, however, s 188(1) imposes a general obligation to keep the premises clean. At the end of a tenancy, the tenant must leave the premises in the same condition that they were in at the start of the tenancy[1]. If a tenant is not keeping the premises clean, or is not able to return the premises in the same condition, then the tenant must pay the cost of returning the premises to its original condition.

   [1] S 188(4).

1. The Act covers damage caused accidentally. A tenant is liable for damage caused by the tenant’s act or omission, even if the damage was not deliberate.

1. As the learned Adjudicator explained[2], Mr Sara was responsible for Mr Tostee’s actions. The learned Adjudicator found that Mr Tostee disconnected the smoke detector. She found that he left a pan on the stove unattended, the kitchen showed evidence of heat damage and the heat activated the sprinkler[3]. All of these findings were open on the evidence. Mr Tostee did damage the unit. Even though the damage was not intentional, Mr Sara, as tenant is liable for the costs of repair.

   [2]        Transcript page 6.

   [3]        Transcript page 6.

1. Whether or not a tenant is able to insure against this type of damage, or whether or not the lessor was insured, is not a relevant consideration.

1. There is no question of general importance that should be determined by the Appeals Tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal is refused.