Sendall v Howe and Anor
[2012] QCATA 41
•24 February 2012
| CITATION: | Sendall v Howe and Anor [2012] QCATA 41 |
| PARTIES: | Dr Marguerite Sendall (Applicant/Appellant) |
| v | |
| Mr Michael Howe Ms Christina Howe (Respondents) |
| APPLICATION NUMBER: | APL363-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 24 February 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is granted.1. The decision of the Tribunal made on 31 May 2011 is set aside and instead the applicant/appellant must pay to the respondents $50 by 30 March 2012.2. |
| CATCHWORDS: | Residential Tenancy – application for compensation – where breach of tenancy agreement – where section 419(3) prescribes application for breach must be made within six months after tenant becomes aware of the breach – where application made outside the six month period Queensland Civil and Administrative Tribunal Act2009, ss 142(3), 146 Lyons v Dreamstarters Pty Ltd [2011] QCATA 142 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Dr Sendall is the owner of a house at 15 Fairway Avenue, Woorim. She entered into a Residential Tenancy Agreement with the respondents which commenced in March 2009. The tenancy continued through to 4 March 2011 with the respondents remaining in occupation until that time.
The house was air conditioned but in June 2010 the air conditioner stopped working. The respondents notified Dr Sendall’s agent of the problem and steps were taken to have it fixed. Unfortunately the repairs did not last and it stopped working again within two weeks. A further complaint was made to the managing agent but the air conditioner was not fixed and remained unserviceable for the remainder of the tenancy.
After the respondents vacated the premises, they filed an application on 3 May 2011 for compensation claiming $1,130.00. The compensation was in respect of the air conditioning unit, toilet repairs and repairs to the door between the garage and living areas. In respect of each, the claim was made up as follows:-
(a) Air conditioning – 36 weeks at $25.00 per week = $900.00
(b) Toilet repairs – 10 weeks at $5.00 per week compensation = $50.00
(c) Repairs to door – 36 weeks at $5.00 per week = $180.00
When the matter came on for hearing on 31 May 2011, the learned Adjudicator allowed the claim but restricted it to a period of six months prior to the expiration of the tenancy on 4 March 2011.
The respondents first became aware of the air conditioning problems on 28 June 2010 and the defective door on 28 June 2010. The problem with the toilet did not arise until 27 December 2010. [1]
[1] Refer to the particulars of the claim annexed to the Minor Civil Dispute application.
The learned Adjudicator, after adjusting the figures to only allow six months compensation from 4 March, made an order that the lessor pay to the respondents $922.00 as for compensation, which included $50.00 for the faulty toilet.
From that decision, Dr Sendall has filed an application for leave to appeal or appeal. Leave to appeal is necessary as this is an appeal from a decision in the minor civil disputes jurisdiction.[2]
[2] QCAT Act, s 142(3).
Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, 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 a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
In her submissions, Dr Sendall raises a number of matters which take issue with some of the evidence put before the learned Adjudicator. However, there is one point that she raises which is of substance. That is, that the learned Adjudicator fell into error by allowing the six months compensation prior to the conclusion of the tenancy. She relies on section 419(3) of the Residential Tenancy and Rooming Accommodation Act 2008 which provides that the tenant may bring an application in the Tribunal for an order about a breach of tenancy agreement but “the application must be made within 6 months after the lessor or tenant … becomes aware of the breach”. Orders that the Tribunal can make about a breach of an agreement includes an order for monetary compensation.
[10] The learned Adjudicator was aware of this section and the six month limitation imposed by section 419(3) because he made reference to it in the reasons for his decision, but did not elaborate on why it did not apply in the circumstances of the case before him. Although the Tribunal has a general power to extend time under section 61 of the QCAT Act, that provision must be read in conjunction with the provisions of the RTRA Act, the enabling Act, which confers jurisdiction on QCAT to deal with tenancy matters.[3] Here, subsection 3 prescribes the period within which a compensation claim can be made. The language used is mandatory in that any application “must” be made within the 6 months. The RTRA Act is prescriptive about the requirements for timeframes in which Notices under the Act can be issued and when proceedings can be commenced.[4]
[3] Lyons v Dreamstarters Pty Ltd [2011] QCATA 142.
[4] Lowe v Aspley [2010] QCATA 59.
[11] The application for compensation in respect of the air conditioning and the garage door was made outside the mandatory six month period and therefore the Tribunal did not have jurisdiction to hear this part of the application. The application in respect of these two issues ought to have been dismissed. Therefore, Dr Sendall raises a valid point of law for the consideration by the Appeal Tribunal and leave to appeal should be granted. The compensation sought in respect of the faulty toilet was made in time and the decision made by the learned Adjudicator’s was open on the evidence before him.
[12] For the reasons already stated the appeal must be allowed. The Appeal Tribunal can, amongst other things, can set aside the decision and substitute its own decision.[5] That is the best and only course that can be adopted here. Therefore, the decision of the Appeal Tribunal is that the decision of the Tribunal made on 31 May 2011 is set aside and in lieu thereof the applicant pay to the respondent the sum of $50.00.
[5] QCAT Act, s 146.
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