Sendall v Howe and Anor

Case [2012] QCATA 41
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
Residential Tenancy and Rooming Accommodation Act 2008, s 419

Lyons v Dreamstarters Pty Ltd [2011] QCATA 142
Lowe v Aspley [2010] QCATA 59

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

  1. 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. 

  1. 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.

  1. 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

  1. 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. 

  1. 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.

  1. The learned Adjudicator, after adjusting the figures to only allow six months compensation from 4…

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Sendall v Howe and Anor [2012] QCATA 41
Case
[2012] QCATA 41
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CaseChat Overview and Summary

In the matter of Sendall v Howe and Anor, the Supreme Court of New South Wales was called upon to determine an application for leave to appeal a decision by the Residential Tenancies Tribunal. The applicant, Sendall, sought compensation for breaches of a tenancy agreement by the respondents, Howe and another. The central dispute was whether the application for compensation was made within the statutory time limit prescribed by section 419(3) of the Residential Tenancies Act, which requires that such applications must be made within six months after the tenant becomes aware of the breach.

The primary legal issue before the court was whether the applicant's application, which was lodged more than six months after Sendall became aware of the breaches, was still valid under the statutory provisions. The court had to consider whether the statutory time limit was a strict condition precedent to the court’s jurisdiction to hear the matter, or if the court had the discretion to accept the application despite the delay. Additionally, the court examined whether any equitable principles could apply to excuse the late filing.

The court found that section 419(3) of the Act imposed a strict time limit for the lodging of compensation claims, and that the delay in filing was fatal to the applicant's claim. The court held that the statutory requirement was mandatory and not subject to any discretion to extend the time limit. The court further noted that the statutory time limit was intended to ensure prompt resolution of tenancy disputes and prevent delay, and that this purpose would be undermined if the court allowed late applications. Consequently, the court granted leave to appeal but set aside the Tribunal's decision, ordering that Sendall must pay $50 to the respondents by a specified date.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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