Stone Real Estate v Miller - [2024] QCATA 106

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION

Stone Real Estate v Miller [2024] QCATA 106

PARTIES: STONE REAL ESTATE

(applicant)

v

DANNIELLE MILLER

(respondent)

STEVEN MILLER

(respondent)

APPLICATION NO:

ORIGINATING APPLICATION NO:

APL231-23

MCDT335/22

MATTER TYPE:

Residential tenancy matters

DELIVERED ON:

18 September 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

1.    Leave to appeal is granted.

2.    The appeal is allowed.

3.    The orders made herein on 4 July 2023 are set aside.

4.    These proceedings are remitted to the registry to be reheard de novo by another adjudicator on a date to be advised.

CATCHWORDS:

        MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where lessor serves notice of termination for unliveability – where lessor claims monies owing for rent – where tenants counterclaim increase in rent for alternative tenancy and removal costs - where primary tribunal decides termination notice is invalid and eviction unlawful – where tribunal finds unliveability not established – where evidence of unliveability is disregarded – where claim by lessor allowed in part – where counterclaim for wrongful eviction allowed – where proceedings remitted for rehearing

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 426

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842

Cardiacos v Cooper Consulting & Construction Services (Aust) Pty Ltd [2009] NSWSC 938
CD v Central Gippsland Health Service [2022] VSC 462

Devries v Australian National Railways Commission (1993) 177 CLR 472

Drew v Bundaberg Regional Council [2011] QCA 359
Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330
Fox v Percy (2003) 214 CLR 118
FV Rentals t/as Forbes Realty Rentals v Anderson [2014] QCATA 181
JM v QFG and GK [2000] 1 Qd R 373
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Parramatta City Council v Pestell (1972) 128 CLR 305
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257
Reihana v Beenleigh Show Society [2020] QSC 55

Yusuf v Minister for Immigration and Multicultural Affairs [1993] FCA 1053

REASONS FOR DECISION

INTRODUCTION

For five years the Millers held a series of leases of a residence at Marsden, Brisbane, (‘the premises’) owned by Pauline Barnes (‘the Lessor’).
On 11 January 2023 the Millers entered into a new lease of the premises, due to commence on 30 April 2023 and to end on 27 April 2024.
The Lessor’s managing agent is Stone Real Estate (‘Stone’) of Loganholme. Stone conducts these proceedings on the Lessor’s behalf, pursuant to Clause 43(2) of a lease agreement (‘the lease’) governed by the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘the Act’).[1]
[1]Form 18a. Clause 43(2) of which reads: ‘Unless a special term provides otherwise, the agent may stand in the lessor’s place in any…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] QCATA 106
Decision Date: 18 September 2024

CaseChat Overview and Summary

Stone Real Estate (the Lessor) brought a claim against Miller (the Tenants) in the Queensland Civil and Administrative Tribunal (QCAT) for unpaid rent, and the Tenants counterclaimed for wrongful eviction and removal costs. The dispute centred on whether the Lessor properly served a notice to terminate the lease on the basis that the premises were unliveable. The Tenants argued that the notice was invalid, and they were unlawfully evicted. The Tribunal initially found that the notice to terminate was invalid, and the Tenants' counterclaim was successful. The Tribunal awarded the Tenants $6,449.70 in compensation and ordered the Lessor to refund the Tenants' bond of $1,560. The Lessor sought leave to appeal the Tribunal's decision, arguing that the award of compensation was excessive and that the Tribunal should reassess the claim.

The appeal centred on whether the Tribunal erred in finding that the Lessor's notice to terminate the lease was invalid. The Tribunal's determination that the premises were not unliveable was pivotal. The Lessor had provided two reports, one from a licensed builder and the other from a handyman, which suggested extensive termite damage. However, the Tribunal found that these reports did not conclusively establish that the premises were unliveable. The court noted that for an appeal to succeed, the findings of fact must be either unsupported by evidence or 'glaringly' unreasonable. The court found that the Tribunal's decision was not without support in the evidence, nor was it unreasonable. The court therefore allowed the appeal, set aside the Tribunal's orders, and remitted the proceedings for rehearing before a different adjudicator.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The orders made herein on 4 July 2023 are set aside.

4. These proceedings are remitted to the registry to be reheard de novo by another adjudicator on a date to be advised.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 21 June 2023 the Millers filed a counter-application for $6,976.60, including a rent increase of $4,680 and removal expenses of $1,116.50 by way of ‘compensation for breaking a 12 month lease’.Trial and decision The hearing and determination of claim and counterclaim took place on 4 July 2023. The Tribunal held that the notice to leave was invalid,[3] allowed the counterclaim, and ordered the Lessor pay the Millers $6,449.70. It was also ordered that the Residential Tenancy Authority refund the Millers’ bond of $1,560. [3]Transcript of hearing 4 July 2023 page 52 line 18 (‘T’). The Lessor’s claim for repairs and water charges was allowed in part, to the extent of $496.90. Leave to appeal sought Stone, on behalf of the Lessor, now applies for leave to appeal,[4] seeking, in lieu of the primary decision, an order ‘that the ruling of payment to Steven Miller and Dannielle Miller of $6449.70 be overturned and that the original claim be reassessed’.[4]QCAT Act, s 142(3)(a)(i). No particulars of the desired ‘reassessment’ are given. It is unclear whether it refers to matters of quantum or to findings of liability for some or all of the various items claimed. However, in so far as it relates to findings of fact, there is clear authority that an appeal – and still less an application for leave to appeal – is not an occasion for disturbing a trial judge’s findings of fact unless they are entirely without support in the evidence,[5] or are ‘glaringly’ unreasonable.[6][5]Fox v Percy (2003) 214 CLR 118 at 125-126; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151; JM v QFG and GK [2000] 1 Qd R 373 at 391.[6]Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844. The ultimate question is whether Stone’s notice to leave was properly given.[7] In other words, were the premises at Marsden truly unfit for habitation in March 2023? If not, the notice then served was not properly given, and in principle (quantum now aside) the Millers’ counterclaim was well founded. [7]Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 426. This was the question to which the primary tribunal devoted its principal attention. The orders which it eventually made rest upon a finding that the premises were not really unliveable, and that the notice to leave was invalid.Were the premises unliveable? In support of the notice to leave the lessor relied on reports of termite damage to the residence – one report by Gold Bullet Construction, Kenmore, (‘Gold Bullet’) and the other by DW Home Maintenance of Tanah Merah (‘DW’), undated. The adjudicator noted that Gold Bullet is a licensed Builder while DW advertises itself as a handyman and home maintenance service. The DW report states:DC recommends that a licensed builder be engaged as soon as possible to assess the extent of the damage. It is highly plausible that the damage is not limited to the exposed areas and may extend into the external wall located to the left of the garage and , the roofing structure, and the living room exterior wall structure.’ Immediate Action:DW asked the tenants to remove their vehicles from the garage and immediately desist from using the garage door. Once closed, the garage door motor was unplugged to prevent use. In addition the tenants were advised that should they use the door forthwith, any damage or injury caused by the door falling or other structural damage may render liability to themselves. [W]e advised the property manager by phone and impressed the concerns as listed above.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION	Stone Real Estate v Miller [2024] QCATA 106
PARTIES:	STONE REAL ESTATE
(applicant) v
DANNIELLE MILLER
(respondent) STEVEN MILLER (respondent)
APPLICATION NO: ORIGINATING APPLICATION NO:	APL231-23 MCDT335/22
MATTER TYPE:	Residential tenancy matters
DELIVERED ON:	18 September 2024
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Dr J R Forbes
ORDERS:	1. Leave to appeal is granted. 2. The appeal is allowed. 3. The orders made herein on 4 July 2023 are set aside. 4. These proceedings are remitted to the registry to be reheard *de novo* by another adjudicator on a date to be advised.
CATCHWORDS:	MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where lessor serves notice of termination for unliveability – where lessor claims monies owing for rent – where tenants counterclaim increase in rent for alternative tenancy and removal costs - where primary tribunal decides termination notice is invalid and eviction unlawful – where tribunal finds unliveability not established – where evidence of unliveability is disregarded – where claim by lessor allowed in part – where counterclaim for wrongful eviction allowed – where proceedings remitted for rehearing Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 426 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 Cardiacos v Cooper Consulting & Construction Services (Aust) Pty Ltd [2009] NSWSC 938 CD v Central Gippsland Health Service [2022] VSC 462 Devries v Australian National Railways Commission (1993) 177 CLR 472 Drew v Bundaberg Regional Council [2011] QCA 359 Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330 Fox v Percy (2003) 214 CLR 118 FV Rentals t/as Forbes Realty Rentals v Anderson [2014] QCATA 181 JM v QFG and GK [2000] 1 Qd R 373 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Parramatta City Council v Pestell (1972) 128 CLR 305 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 Reihana v Beenleigh Show Society [2020] QSC 55 Yusuf v Minister for Immigration and Multicultural Affairs [1993] FCA 1053