Springfield Raine and Horne v Schelberg

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Springfield Raine and Horne v Schelberg [2021] QCATA 27

PARTIES:

SPRINGFIELD RAINE AND HORNE

(applicant/appellant)

v

SARAH SCHELBERG AND STEPHEN SCHELBERG

(respondent)

APPLICATION NO/S:

APL087-20

ORIGINATING APPLICATION NO/S:

MCDT30-20

MATTER TYPE:

Appeals

DELIVERED ON:

2 March 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

Application for leave to appeal is refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where tenant had complaints of mould in rented house – where mould originated in the air conditioning system – where applicant took steps to remedy the mould problem – where ongoing issues – where the applicant offered to terminate the tenancy – where the respondents purported to accept the offer and vacated the premises – whether the tenancy agreement terminated by agreement acceptance -whether the respondents claim for compensation recoverable in the circumstances – whether the cost of removalist reasonable.

Queensland Civil and Administrative Tribunal Act section 142(3)(a)(i)

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd.R. 404.

Terera & Anor v Clifford [2017] QCA 181.
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22.

Bradlyn Nominees Pty Ltd v Saikowski [2012] QCATA 39.

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

1. The Schelbergs entered into a residential tenancy agreement with Raine & Horne to rent premises at Springfield from 16 September 2019 until 14 September 2020. Immediately on taking up possession, the Schelbergs noticed a damp smell in the house from what appeared to be mould on air conditioning vents on the upper lower and the lower level. The house had ducted air conditioning. This was reported to Raine & Horne who undertook investigations and engaged an electrician who changed the vents on the upstairs level.

2. There were continuing problems with the air conditioning and complaints about the mould. Specks of mould-like material would fly out of the vents and land on benches. This was an entirely unsatisfactory situation for the Schelbergs with two small children. There was also worn and deteriorating carpet particularly on the staircase. The mould issues were ongoing despite Raine & Horne’s attempt to address the Schelbergs’ concerns. All of this culminated in an email exchange between the Schelbergs and Raine & Horne. In an email from Raine & Horne, the Schelbergs were asked:

   Good Afternoon, Sarah. We have been in communication with the air conditioner people to receive advice on where to go in regards to your last email. I recommend that you contact the RTA again in relation to the latest concerns. Is an option for you to mutually end the lease and vacate the property, as we are trying to get solutions to the issues and we have more issues unfolding.

3. There was no immediate response but about 7 days later Mrs Schelberg wrote:

   Hi…