Toowong Units Pty Ltd v Beal
[2011] QCAT 366
•1 July 2011
CITATION: Toowong Units Pty Ltd v Beal [2011] QCAT 366
PARTIES: Toowong Units Pty Ltd t/as Teneriffe Hill Apartments v Graham Douglas Beal
APPLICATION NUMBER: MCDT2858-10 / MCDT2806-10
MATTER TYPE: Residential tenancy matters
HEARING DATE: 8 February 2011
HEARD AT: Brisbane
DECISION OF: Tammy Williams, Adjudicator
DELIVERED ON: 1 July 2011
DELIVERED AT: Brisbane
ORDERS MADE: 1. The respondent pay the applicant the sum of $817 forthwith, being:
a. A break lease and relet fee of $517.00; and
b. The cost of repairs to the damaged bathroom door in the amount of $300.00
2. The Residential Tenancy Authority releases from the $1,840 bond held, in partial satisfaction of this order:
a. $817.00 to the applicant; and
b. $1,023 to the respondent
3. The applicant to reimburse the respondent forthwith the sum of $312.87 for rent monies paid and held in credit, beyond the date of vacant possession.
CATCHWORDS: Lessor’s application for compensation for Queensland Fire and Rescue Service call out fees for alarms – requirement for tenant to pay under special terms and body-corporate by-laws – building exceeded number of permissible call outs for false alarms – failure to maintain building – breach of quiet enjoyment – break-lease fee – compensation for bathroom door
Residential Tenancies & Rooming Accommodation Act 2008, ss 183(1), 185(3)(b), (c)
Fire and Rescue Service Act 1990, s 104DAAPPEARANCES and REPRESENTATION (if any):
APPLICANT: Mr Ronald Slebos RESPONDENT: Mr Graham Douglas Beal REASONS FOR DECISION
Introduction
[1]Teneriffe Hill Apartments filed an application with the Queensland Civil and Administrative Tribunal (QCAT), naming Mr Graham Douglas Beal as the respondent. The applicant sought compensation from the respondent in the amount of $1,938.43:
· For the cost of the Queensland Fire and Rescue Service (QFRS) to attend the premises as a result of an alarm activated by activities within the respondent’s apartment (in the amount of $1,434.30);
· A break lease, re-let fee of $517.00; and
· Compensation in the amount of $300.00 to replace and repaint the bathroom door.
Also to the applicant’s credit was the disclosure that $312.87 is currently held in trust and payable to the respondent, for rental monies paid beyond the date of vacant possession.
[2]Mr Beal filed a counter-claim seeking a partial refund of the $1,840. From the outset and to his credit he consented to the following deductions being made from the bond:
· A break lease fee of $517.00; and
· The sum of $300.00 for repairs to the bathroom door.
[3]However the respondent believed there were reasonable grounds why he should not be liable for the fines and/or charges associated with the QFRS attendance at the property.
[4]The Tribunal held a hearing at the Queensland Civil and Administrative Tribunal’s hearing rooms in Brisbane. Leave was granted to the applicant to be represented by its onsite manager Mr Ronald Slebos. Both parties gave evidence and provided the Tribunal with documentary evidence. The Tribunal reserved its decision so it could carefully consider the evidence and submissions of both parties in light of the provisions in the Residential Tenancies & Rooming Accommodation Act 2008 (the Act).
Relevant Facts
[5]The respondent initially entered into a written tenancy agreement on 16 October 2009 for a fixed term of six (6) months. The tenancy was later renewed for a further 12 months, expiring on 15 April 2011.
[6]After Mr Beal gave notice of his intention to break the lease and vacate in July 2010, the onsite property manager informed him of “two fines from the body corporate which had to be paid due to the fire alarm in our apartment being set off.”
Delay
[7]The respondent believes the fines or costs to be unfair, arguing “[t]his was the first I heard of these fines and they came from right out of the blue. The fines were for 5 March 2010 and 28 May 2010.”
[8]There was a lapse of time between the dates of these incidents and when the respondent was first presented with the invoice in July 2010. Before such time, the respondent states he did not receive any notice from the Body Corporate or the onsite manager of his liability to pay for the QFRS call out fees.
[9]The applicant’s agent, Mr Slebos, admitted there was a delay between when the unwanted alarms sounded and the production of the Queensland Fire and Rescue Service invoices. However it was submitted, the delay was outside of the applicant’s control.
[10]The date both QFRS invoices were submitted to the applicant was 16 June 2011. Therefore the delay in which the applicant bears responsibility is the weeks between 16 June and July 2010, when the respondent was not advised of the outstanding charges.
[11]The Tribunal is therefore satisfied such delay does not impede on any applicable time limits pursuant to the Residential Tenancies and Rooming Accommodation Act 2008 which would bar the hearing of the applicant’s claim.
Defective Invoice
[12]To support the applicant’s claim, Mr Slebos relied on the QFRS invoices to show the attendance of the fire service at the Teneriffe Hill Apartments on 5 March 2010 and 28 May 2010 were as a result of an unwanted alarm. On the latter date, the respondent’s unit is correctly identified as the premises which activated the alarm. However, Mr Selbos admitted the QFRS invoice does not identify Mr Beal’s unit (number 64) as the property affected on the first occasion (5 March 2010) – instead listing apartment 68. The applicant maintains this was a mere administrative error on the part of the QFRS.
[13]In reply the respondent argued “[i]n the circumstances I don’t think there is sufficient evidence to charge me for this incident as there is a disconnect (sic) between the Queensland Fire and Rescue Service invoice and my unit...”.
[14]The Tribunal relies on the witness statement of Ms Annemarie Goss, the secretary of the Body Corporate, whose evidence verifies the fire alarm was triggered by activities within unit 64 on both occasions and not by another source. Therefore on balance, it is probable an administrative error may have been made by the Queensland Fire and Rescue Service.
Contractual liability
[15]The applicant argues the respondent’s liability to pay for the Queensland Fire and Rescue Service “call out fees for unnecessary fire alarms” arises pursuant to the special terms of his tenancy agreement and clause 49 of the Body Corporate By-Law.
The General Tenancy Agreement Special Terms -
Clause 4 states: “tenants are responsible for paying any avoidable alarm fees.”
Clause 7 states: the respondent tenant “acknowledges receiving... a fire safety briefing... and body-corporate by-laws.”
The Body Corporate By-Law-
Clause 49 states: “The proprietor or occupier of a Lot shall reimburse the Body Corporate in the-
(a)first instance – one half of the total costs incurred;
(b)second instance or thereafter – the full costs incurred,
by the Body Corporate due to a false fire alarm being activated by their Lot unless the Committee deems the application of the charge to be inappropriate, which is in the sole discretion of the Committee.”
[16]The applicant argued there was no fire on both occasions when the alarm was activated. Because they were false alarms, in accordance with the Body Corporate by-laws, it subsidised the cost of the QFRS’s attendance on 5 March 2010 (the first incident) by paying 50% of the $956.20 fee. The applicant therefore believes it has reasonable grounds for seeking the remaining 50 percent of the QRFS call out fee for 5 March 2010 and the full cost of the call out fee for 28 May 2010 from the respondent.
Decision of the Tribunal
[17]Throughout the course of a tenancy, there is a general obligation on a lessor pursuant to section 185(3)(b) and (c) to maintain the premises and inclusions in good repair; and ensure any law dealing with issues about the health or safety of persons using or entering the premises is complied with.
[18]Relevant to these proceedings is the Fire and Rescue Service Act 1990.
Section 104DA provides:
(1)The occupier of a building must maintain each monitored system for the building to ensure an unacceptable number of unwanted alarms are not signalled from the system
(2)For subsection (1), the number of unwanted alarms signalled from a monitored system is unacceptable if the number signalled since the end of the last financial year is-
a.more than 4; and
b.more than the average number for the last financial year published under subsection (4).
Section 104(4)DA further provides:
“[A]s soon as practicable after 30 June each year, the Commission must calculate, and notify in the gazette, the average number of unwanted alarms for monitored systems for the last financial year.”
[19]On 27 August 2010, in issue number 136 of the Queensland Government Gazette the QFRS Commissioner formally notified the public the average number of unwanted alarms for monitored systems for the financial year of 2009/2010 was 3.02.
[20]The Tribunal has regard to the two invoices issued by the QFRS on 16 June 2010 to the applicant, seeking compensation for the multiple call outs to the Teneriffe Hill Apartments for unwanted alarms. Specifically:
·Tax Invoice number 600000 3833 reports six (6) incidents in the period 1 March to 12 April 2010 (of which only one relates to the respondent and is the subject of this claim); and
·Tax Invoice number 6000000 3729 reports two (2) incidents in the period 28 May to 5 June 2010 (of which only one relates to the respondent and is the subject of this claim).
[21]Thus over a four month period, there is evidence of eight unwanted alarms activated at the applicant’s apartment building, which far exceeds the annual number permitted.
[22]The respondent maintains the alarm sounded without any act of negligence by either he or his guests: “We were simply going about our ordinary everyday business (cooking in the kitchen and barbequing meat on the terrace) and not behaving in a negligent or dangerous manner.”
[23]This is consistent with the incident details recorded by the QFRS on their invoices.
5 March 2010: “Smoke from BBQ activated detector”
28 May 2010: “Alarm activated due to cooking fumes”
Other reported incidents which the QFRS attended to at the applicant’s apartment complex (which do not relate to the respondent’s unit) include:
Unit 5, 6 March 2010: “No apparent cause”
Unit 4, 14 March 2010: “Cooking fumes”
Unit 41, 30 March 2010: “Cooking fumes”
Unit 44, 5 June 2010: “Cooking fumes”
[24]In accordance with section 104DA of the Fire and Rescue Service Act 1990, the Tribunal finds there were an unacceptable number of alarms activated at the applicant’s apartment complex during the 2009/2010 financial year.
Possible Defence
[25]It is a defence pursuant to section 104(4) of the Act if the applicant can prove it took “reasonable precautions and exercised proper diligence to prevent the contravention.”
[26]The applicant argued the respondent failed to take sufficient care to avoid activating both the heat and smoke sensors; for example he should have closed the door while cooking on the balcony. At the commencement of the tenancy agreement, it is usual practice for the applicant’s agent to provide all tenants with an induction of the building’s fire practices, procedures and billing conditions for false alarms. The respondent and some witnesses refuted this evidence.
[27]Mr Slebos’ oral evidence also included testimony that the property was designed and is maintained to comply with fire safety standards.
[28]Even if the tribunal were to accept the applicant’s evidence, it is clear such procedures were not effective in preventing the high number of unwanted alarms being activated at the apartment complex. Notwithstanding those procedures and policies the respondent stated the “alarms would go off all the time.” This statement appears to be supported by the incident details listed on the QFRS invoices referred to at paragraph 23 of these Reasons.
[29]Further more in these circumstances, it would be diligent and reasonable to expect a Body Corporate to review or change its procedures in an attempt to reduce the excessively high number of false alarms (i.e. double the allowable annual rate, in just four months). Therefore the Tribunal is not satisfied:
· reasonable precautions and due diligence were taken by the applicant to prevent a contravention of the Fire and Rescue Service Act 1990; and
· the applicant failed to discharge its’ general lessor obligations pursuant to sections 185(3)(b) and (c) of the Residential Tenancies and Rooming Accommodation Act 2008 to maintain the premises and inclusions in good repair; and ensure any law dealing with issues about the health or safety of persons using or entering the premises is complied with.
[30]It is also doubtful whether the applicant took reasonable steps, pursuant to section 183(1) of the Residential Tenancies and Rooming Accommodation Act to ensure the tenant had quiet enjoyment of the premises given the frequency of the alarms which could be heard throughout the apartment complex.
Conclusion
[31]In consideration of the matters mentioned above, the Queensland Civil and Administrative Tribunal is not satisfied Teneriffe Hill Apartments have established the grounds of its entire claim.
[32]Other than the items of compensation which the respondent admitted liability for, namely a break lease fee of $517.00 and the sum of $300.00 for repairs to the bathroom door, the Tribunal dismisses the applicant’s claim for $1,434.30 being the cost of the Queensland Fire and Rescue Service (QFRS) attendance at the premises.
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