Spargo v Katz
[2010] QCATA 94
•9 December 2010
| 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 Dearman v Dearman (1908) 7 CLR 549, cited Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, applied Shevill v Builders Licensing Board (1982) 149 CLR 620, 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
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.
Things turned sour on arrival. Mr Katz and Ms Vella complained that the unit was uninhabitable, because of a pungent damp smell in the living room and the bedrooms. The reception staff at Richardson and Wrench attended at the unit and offered to spray the room with air fresheners, and invited Mr Katz and Ms Vella to, at least, stay the first night. They refused and sought a full refund. This was rejected, the agents relying upon cancellation conditions in the letting agreement.
Mr Katz and Ms Vella subsequently found alternative accommodation in another location. They then brought proceedings in QCAT’s Minor Civil Disputes jurisdiction seeking a refund of the money paid to Richardson and Wrench. The matter was heard before a Magistrate, acting as a QCAT Adjudicator. Ms Whitehead, the Property Manager, appeared for Richardson and Wrench. Mr Katz appeared by telephone.
The central issue at the hearing was the presence, and effect, of any offensive odour. Mr Katz pointed to the fact that Anita, a member of the agency staff who visited the unit, offered to have it sprayed with air fresheners. Ms Whitehead countered that Anita did not find any evidence of a damp or musty odour, and had indicated as much to other staff. Anita did not attend the hearing; nor did she file any affidavit to shed light on these conflicting claims.
Ms Whitehead tendered a report prepared from Robillard Building and Design to the effect that there was no damp or musty smell in unit 35. She conceded, however, that the report was prepared approximately six weeks after Mr Katz and Ms Vella had visited the unit, and was based on inspections that took place many weeks after the complaints were actually made.
The learned Magistrate was persuaded that the odour in the unit had, in fact, been noisome and as a result Richardson and Wrench were in breach of the letting agreement. They were ordered to refund the prepaid rent monies to Mr Katz and Ms Vella.
Mr Peter Spargo, the owner of unit 35, seeks leave to appeal that decision. As this matter arises from a Minor Civil Dispute, leave to appeal is necessary: Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 142(3)(a)(i).
Leave to appeal is ordinarily granted where there is a reasonably arguable case of error in the primary decision and leave is necessary to correct a substantial injustice arising by that error[1]; and 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[2].
[1]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 at [6]
[2]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
Mr Spargo alleges that the decision did not accord with the weight of evidence because the learned Magistrate overlooked the significance of the Robillard Building and Design report.
Ordinarily, findings of fact by the primary decision-maker will not be disturbed on appeal if the facts inferred are capable of supporting the conclusions[3] and are not contrary to compelling inferences[4].
[3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at
207, 208
[4]Chambers v Jobling (1986) 7 NSWLR 1 at 10
The learned Magistrate’s reasons show that she considered the findings in the report from Robillard, but ultimately preferred the direct evidence about the smell given by Mr Katz.
There is nothing in the evidence, or the submission from Mr Spargo, to suggest that the learned Magistrate’s finding on these lines was either not reasonably open on the evidence, or was contrary to compelling inferences from that evidence.
The reasons reveal that, despite the fact that there is no express term in the letting agreement that the unit would be fit for use, the learned Magistrate regarded it as implicitly understood. Courts will sometimes imply terms into a contract where it appears that it does not contain an express term that would have bearing on a particular matter. Terms can be implied by law (as a legal incident to a particular class of contract, regardless of the intentions of the parties)[5] or by necessity to give business efficacy to a particular contract[6]. Those implied by law are deemed necessary by implication; otherwise the whole of the transaction would be futile[7].
[5]Castlemaine Tooheys Ltd v Carlton & United Breweries Ltd (1987) 10 NSWLR 468 at 487-489
[6]See Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR at 345-347 (per Mason J)
[7]Castlemaine Tooheys Ltd, supra; Liverpool City Council v Irwin & Another [1976] 2 All ER 39; Miller v Hancock[1893] 2 QB 177 at 180, 181 (per Bowen LJ)
It is clear that a letting agreement would be rendered futile without an implied undertaking that units would be fit for use – here, comfortable human habitation. The learned Magistrate was right to conclude that the offensive smell constituted a breach of the letting agreement. Breach of such an essential term, then, also entitled Mr Katz to rescind the agreement and seek recovery of his payment[8].
[8] Shevill v Builders Licensing Board (1982) 149 CLR 620 at 626 (per Gibbs CJ);
In short, there is no demonstrated or discernable error in the learned Magistrate’s decision; nor is there a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. For these reasons, leave to appeal should be refused.
Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632,
at 641, 642; Hadley v Baxendale (1854) 2 CLR 517; (1854) 9 Exch 341
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