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

1. For five years the Millers held a series of leases of a residence at Marsden, Brisbane, (‘the premises’) owned by Pauline Barnes (‘the Lessor’).

2. 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.

3. 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 application to a tribunal by the lessor or the tenant.’

4. The lease then current was terminated on 18 March 2023 when Stone served a notice to leave on the ground of unliveability.[2] The Millers complied with  that notice and retreated to a more expensive accommodation at Crestmead.

   [2]The Act, s 290D.

   Notice to leave – unliveable? Proceedings begin

5. On 11 May 2023 Stone applied to the Tribunal alleging that the Millers ‘owe money [$5,270.30] for the [Marsden] property and have disputed bond’.

6. 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

7. 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’).

8. The Lessor’s claim for repairs and water charges was allowed in part, to the extent of $496.90.

   Leave to appeal sought

9. 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).

10. 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.

11. 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.

12. 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?

13. 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.

14. The lessor acted upon DW’s advice to engage a licensed builder, namely Gold Bullet. That company reported:

    [Our] inspection revealed extensive damage to the timber column located on the left  hand side of the garage door. This column supports the lintel above the garage door, which in turn bears the weight of the roof trusses. The termite infestation has significantly compromised the structural integrity of the column, creating a high risk of collapse. If this column were to collapse, it would not only jeopardise the garage area but also pose a threat to the entire house and its occupants. Considering the potential danger to the safety of anyone residing in the property [we] strongly recommend an immediate evacuation until the necessary repairs can be carried out.

15. Acting on these reports Stone, for the lessor, forthwith issued a notice to leave., with which the Millers complied. There is no suggestion that Stone acted other than in good faith. There is uncontested evidence that at the time of the hearing the premises were still vacant: ‘So it’s not as if we’ve fixed the house and re-rented it.’[8]

    [8]T page 34 lines 41-44 (Ms Cuffe).

    Reports disregarded

16. However, the adjudicator did not share the catastrophic views of DW and Gold Bullet. She emphasised the force of the expression ‘unliveable’, declaring that it means no less than utterly uninhabitable:[9]

    [W]ith a non-liveability notice, tenants are given 24 hours to leave.  And there’s a reason for that, because there is imminent urgency. There was no imminent urgency here.  In fact, I think, Ms Cliffe,[10] you said yourself that, “We gave them the notice, but we gave them extra time to go so they could fulfill all their other obligations.”  No one’s acting as if this is an urgent situation. In fact, this is – there’s no evidence – in fact, these people could have got up into the roof to determine whether the roof trusses were at risk of collapsing.  No one seemed to do that.[11]

    [I]t was premature to ask these tenants to go, frankly. It … wasn’t obvious that there was an emergent situation that rendered them at risk, particularly when the damage is confined to an area that can be shut off from the rest of the house.[12]

    [A] garage, which is not a fundamental part of the property, in my view, does not render these premises uninhabitable.[13]

    [9]T page 50 line 20.

    [10]Ms Cliffe appeared for Stone at the trial.

    [11]T page 36 lines 26-34 (adjudicator).

    [12]T page 39 lines 7-10 (adjudicator).

    [13]T page 35 lines 4-5.

17. And in the course of the decision:

    Certainly, the garage should have remained off-limits. There is no doubt about that.  But the rest of the house was not subject to that. And the family, I would find, could probably have continued living happily there for some time afterwards, subject to not using the garage and possibly subject to some kind of rent reduction while work went on or while that area was not available.[14]

    [14]T page 50 lines 33-37.

18. But it might have been a trifle difficult for the Miller family to continue to live carefree and happily on the premises despite the trepidations of Gold Bullet and DW.[15] Gold Bullet foresaw a real possibility of the house coming down upon their heads.

    [15]‘It was a safety issue and a safety concern for the tenants’ (Cliffe) T page 35 lines 39-40.

19. The test of unliveability is demanding, but certainly not impossible to satisfy. It is hardly surprising that it was satisfied in Cardiacos v Cooper Consulting & Construction Services (Aust) Pty Ltd[16] where the ceiling was in danger of collapsing. Where a house is unliveable, there is obviously a breach of the tenancy agreement, and a remedy in compensation.

    [16][2009] NSWSC 938. See also FV Rentals t/as Forbes Realty Rentals v Anderson [2014] QCATA 181.

20. However, the fundamental question in this case is whether the premises were unliveable, contrary to the adjudicator’s concluded view. The answer to that question decides  whether the  Lessor’s eviction of the Millers was lawful or unlawful, and the consequent question of compensation.

1. The only relevant evidence is that of  Gold Bullet and DW. It may not be perfect but it is all that the Tribunal had available.

2. In the event, the advice of Gold Bullet was effectively ignored.[17] Why? ‘It is important if public confidence is to be maintained in the tribunal system … that when a case is sent to a tribunal  … an unsuccessful party is entitled to an explanation as to why their case was not accepted.’[18]

   [17]Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].

   [18]Yusuf v Minister for Immigration and Multicultural Affairs [1993] FCA 1053 per Finn J.

3. Ignoring crucial evidence is an error of law.[19] Absent any evidence contrary to that of Golden Bullet and DW it must be concluded that the adjudicator’s own view of the state of the premises, sight unseen, was erroneously treated as decisive.[20]

   [19]CD v Central Gippsland Health Service [2022] VSC 462 at [33]; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 175; Reihana v Beenleigh Show Society [2020] QSC 55 at [217].

   [20]Parramatta City Council v Pestell (1972) 128 CLR 305 at [15] per Menzies J.

Remission for retrial

1. The testing and possible elaboration of the expert evidence is not a matter for the appeal Tribunal, confined as it is to questions of law.[21] It is regrettable that the proceedings must be remitted to the trial tribunal, for reconsideration de novo. There will be orders to that effect. The end result in compensation will be a matter for the primary Tribunal.

   [21]QUYD Pty Ltd v Marvass Pty Ltd  [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v

   Bundaberg Regional Council [2011] QCA 359 at [18]; Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19].

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.