Sunners v Define Property Mooloolaba - [2013] QCATA 289

CITATION:

Sunners v Define Property Mooloolaba & Ors [2013] QCATA 289

PARTIES:	Nevenka Sunners Timothy John Sunners (Appellants)
V
Ross Cattle t/as Define Property Mooloolaba Kevin Tanner Marie Tanner (Respondents)

APPLICATION NUMBER:

APL094 -13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Alexander Horneman-Wren SC, Deputy President

DELIVERED ON:

29 October 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

Leave to appeal is granted.
The appeal is dismissed.
The decision of the Tribunal of 16 January 2013 is confirmed.

CATCHWORDS:

APPEAL – MINOR CIVIL DISPUTE – where the leasees claimed compensation for damage caused in a flood event – where the leasee claimed the damage was caused by poor maintenance of drain pipes – where the Tribunal at first instance dismissed the application because the application was filed in the Tribunal more than six months after the flood event – where the leasees appealed the decision on the ground a dispute resolution notice was filed within six months of the flood event – whether the claim for compensation was out of time – whether leave to appeal should be granted

APPEAL – where the Tribunal erred in law – where leave to appeal is granted – where the appellant sought the matter be referred back to the Tribunal to be re-heard – where Tribunal at first instance considered merits of claim – whether appeal should be allowed

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 417(2), s 419(3)

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited
Cachia v Grech [2009] NSWCA 232, cited
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, cited

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited

APPEARANCES and REPRESENTATION (if any):

The Appeal Tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Mr and Mrs Sunners rented a home a Mooloolaba from Mr and Mrs Tanner, through Mr Cattle’s agency. There was a big storm on the Sunshine Coast on 21 March 2012 and Mr and Mrs Sunners’ home was flooded. On 26 March 2012, Mr Cattle gave Mr and Mrs Sunners a notice of termination because the home was unliveable. Mr and Mrs Sunners vacated over the next few days.
On 5 October 2012, Mr and Mrs Sunners filed an application for compensation. A Magistrate, sitting as an ordinary Member of the Tribunal, dismissed their claim because it was filed more than six months after they became aware of the breach of the lease.[1]
[1] Residential Tenancies and Rooming Accommodation Act 2008, s 419(3).
Mr and Mrs Sunners want to appeal that decision. They say that the learned Magistrate failed to consider the effect of s 417(2) of the Residential Tenancies and Rooming Accommodation Act 2008 (‘RTRA Act’), which says that a reference to making an application about the dispute issue includes a…

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.

Continue reading Sunners v Define Property Mooloolaba

Details

AGLC: Sunners v Define Property Mooloolaba & Ors [2013] QCATA 289
Case: [2013] QCATA 289
Decision Date: 29 October 2013

CaseChat Overview and Summary

Sunners v Define Property Mooloolaba was an appeal from a decision of the Queensland Civil and Administrative Tribunal (QCAT) which dismissed a claim for compensation by the Sunners. The Sunners rented a property in Mooloolaba from the Tanners, through Define Property Mooloolaba. The property was severely damaged by a flood on 21 March 2012. The Sunners filed an application for compensation with QCAT on 5 October 2012. QCAT dismissed the claim because it was filed more than six months after the flood event, in breach of s 419(3) of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA Act). The Sunners appealed the QCAT decision to the Appeals Tribunal, arguing that they had lodged a dispute resolution notice with the Residential Tenancies Authority within six months of the flood event, in accordance with s 417(2) of the RTRA Act.

The appeal centred on whether the Sunners’ claim for compensation was out of time, and whether leave to appeal should be granted. The Appeals Tribunal considered the principles for granting leave to appeal, including whether there was a reasonably arguable case of error in the primary decision, whether there was a reasonable prospect of substantive relief, and whether a substantial injustice would be caused without leave. The Sunners argued that the QCAT failed to consider s 417(2) of the RTRA Act in its reasoning. The Appeals Tribunal found that while the QCAT was not explicitly referred to s 417(2), there was no error in the QCAT’s decision. The Sunners had identified the flood event as the breach of the tenancy agreement, rather than the poor state of the drain pipes. As such, they were required to lodge their application within six months of the flood event, which they did not do. The Appeals Tribunal dismissed the appeal and confirmed the QCAT’s decision.

The Appeals Tribunal granted leave to appeal, but dismissed the appeal itself. The decision of QCAT of 16 January 2013 was confirmed.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is dismissed.

3. The decision of the Tribunal of 16 January 2013 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The decision of the Tribunal of 16 January 2013 is confirmed. Mr and Mrs Sunners rented a home a Mooloolaba from Mr and Mrs Tanner, through Mr Cattle’s agency. There was a big storm on the Sunshine Coast on 21 March 2012 and Mr and Mrs Sunners’ home was flooded. On 26 March 2012, Mr Cattle gave Mr and Mrs Sunners a notice of termination because the home was unliveable. Mr and Mrs Sunners vacated over the next few days. On 5 October 2012, Mr and Mrs Sunners filed an application for compensation. A Magistrate, sitting as an ordinary Member of the Tribunal, dismissed their claim because it was filed more than six months after they became aware of the breach of the lease.[1][1] Residential Tenancies and Rooming Accommodation Act 2008, s 419(3). Mr and Mrs Sunners want to appeal that decision. They say that the learned Magistrate failed to consider the effect of s 417(2) of the Residential Tenancies and Rooming Accommodation Act 2008 (‘RTRA Act’), which says that a reference to making an application about the dispute issue includes a reference to a request for dispute resolution. Because this is an appeal from a decision of the Tribunal in its Minor Civil Dispute jurisdiction, leave is necessary.[2] The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[3] Is there a reasonable prospect that the appellant will obtain substantive relief?[4] Is leave necessary to correct a substantial injustice caused by some error?[5] Is there a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage?[6][2] Queensland Civil and Administrative Tribunal Act 2009, s 142(3).[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.[4] Cachia v Grech [2009] NSWCA 232 at 2.[5] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.[6]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 and Mrs Sunners can only claim compensation if there has been a breach of the tenancy agreement. They claimed that the flood was caused by blocked drains and that the drains were blocked because of the lessors’ lack of attention to maintenance. The learned Magistrate acknowledged the possibility that the drains weren’t working properly,[7] but concluded that the property would probably have flooded in any event. [7] Transcript of Decision page 3, lines 6 – 15. Mr and Mrs Sunners identify the flood event as the breach of the tenancy agreement, rather than the allegedly poor state of the drain pipes. If it were otherwise, then they would have been out of time having first complained about the drains in January 2011. If the poor maintenance was the breach, then they must have known about that breach at the time of, or shortly after, that complaint. However, as they rely upon the flood event as the breach, they lodged their application within time. Mr and Mrs Sunners are correct in their submission that s 419(3) of the RTRA Act is subject to s 417(2). They lodged a dispute notice with the Residential Tenancies Authority on 4 May 2012, within six months of the flood event of 21 March 2012. The learned Magistrate is not to be criticised for failing to consider s 417(2). No one drew it to his attention: at the time the 6 month limitation was being considered in the proceedings, Ms Sunners referred only to her filing of the application in the Tribunal in October 2012. She did not refer to the dispute notified with the Residential Tenancies Authority, even though there was evidence of it in the material which the appellants filed.

Ratio Decidendi

Legal Principle Established

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