Spargo v Katz

Case [2010] QCATA 94
CITATION: Spargo v Katz  [2010] QCATA 94
PARTIES: Peter SPARGO
(Applicant/appellant)
v
Isaac KATZ
(Respondent)

APPLICATION NUMBER:            APL175 -10              

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON:   9 December 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Leave to appeal refused

CATCHWORDS : 

MINOR CIVIL DISPUTE  –  LETTING AGREEMENT – BREACH – IMPLIED TERMS – RESCISSION – where the respondent agreed to let a unit owned by the appellant and managed by Richardson and Wrench Noosa Holidays – where the respondent complained that the unit was uninhabitable because of a pungent musty odour – where the respondent refused to stay in the unit and stayed in alternative accommodation – where the Magistrate found that Richardson and Wrench Noosa Holidays were in breach of the letting agreement and ordered that they refund the respondent for monies paid – where the appellant alleges that the decision is against the weight of the evidence – whether the Magistrate’s findings are supported by the evidence – whether the odour was a breach of implied term in the letting agreement that the premises be fit for use – whether the respondent was entitled to rescind the agreement

Queensland Civil and Administrative Tribunal Act 2009, ss 142(3)

Castlemaine Tooheys Ltd v Carlton & United Breweries Ltd (1987) 10 NSWLR 468, applied
Chambers v Jobling (1986) 7 NSWLR 1, cited
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR, cited

Dearman v Dearman (1908) 7 CLR 549, cited
Fox v Percy (2003) 197 ALR 201, cited
Hadley v Baxendale (1854) 2 CLR 517 ; (1854) 9 Exch 341, cited

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, applied
Liverpool City Council v Irwin & Another [1976] 2 All ER 39, applied
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited
Miller v Hancock[1893] 2 QB 177, applied

Shevill v Builders Licensing Board (1982) 149 CLR 620, cited
Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632, cited

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited

APPEARANCES and REPRESENTATION (if any):

By order of the Appeal Tribunal the application for leave to appeal (and appeal, if leave is granted) were directed to be determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

  1. Mr Isaac Katz and Ms Ann Vella regularly holidayed at premises at Witta Circle in Noosa Heads, managed by Richardson and Wrench Noosa Holidays. They had previously leased unit 59, and had no cause to complain. They sought to book it in March 2010 but it was unavailable. Richardson and Wrench suggested they take unit 35 and assured them that it was of a similar standard. On this basis, they took it. 

  1. Things turned sour on arrival. Mr Katz and Ms…

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Spargo v Katz [2010] QCATA 94
Case
[2010] QCATA 94
Decision Date

CaseChat Overview and Summary

In Spargo v Katz, the respondent alleged that the appellant's unit, which was managed by Richardson and Wrench Noosa Holidays, was uninhabitable due to a musty odour, prompting the respondent to refuse to stay in the unit and seek alternative accommodation. The respondent sought a refund of monies paid under the letting agreement, and the Magistrate found that Richardson and Wrench Noosa Holidays had breached the agreement. The appellant argued that the Magistrate's decision was against the weight of the evidence, and that the respondent was not entitled to rescind the agreement. The appeal was heard by the Queensland Civil and Administrative Tribunal.

The key legal issues before the tribunal were whether the Magistrate's findings were supported by the evidence, and whether the musty odour constituted a breach of the implied term in the letting agreement that the premises be fit for use. The tribunal considered the evidence presented by both parties, including the respondent's complaints about the odour and the appellant's evidence that the unit was habitable. The tribunal also considered the terms of the letting agreement, which included an implied term that the premises be fit for use.

The tribunal found that the Magistrate's findings were supported by the evidence, and that the musty odour constituted a breach of the implied term in the letting agreement. The tribunal held that the respondent was entitled to rescind the agreement and seek a refund of monies paid. The tribunal rejected the appellant's argument that the decision was against the weight of the evidence, finding that the respondent's evidence was credible and that the appellant had failed to establish that the unit was habitable.

The tribunal refused the appellant's application for leave to appeal. The respondent was entitled to a refund of the monies paid under the letting agreement, and the appellant was liable for the costs of the appeal.

Orders

Orders of the court

Leave to appeal refused

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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