Vessi v Howells - [2013] QCAT 674

CITATION:

Vessi v Howells [2013] QCAT 674

PARTIES:	Megan Vessi (Applicant)
v
Sharlene Howells (Respondent)

APPLICATION NUMBER:

MCDT2120/13

MATTER TYPE:

Residential tenancy matters

HEARING DATE:

15 November 2013

HEARD AT:

Brisbane

DECISION OF:

A Hartnett, Justice of the Peace
J Hawkins, Justice of the Peace

DELIVERED ON:

28 November 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The respondent pay to the applicant the amount of $414 within 21 days.

CATCHWORDS:

RESIDENTIAL TENANCIES – BREACH OF AGREEMENT – COMPENSATION – LOSS OF AMENITY – where applicant alleged respondent had breached agreement – where evidence of applicant suggested she also claimed rent reduction for substantial loss of amenity – whether to proceed as an application for breach or an application for a reduction in rent

RESIDENTIAL TENANCIES – REDUCTION IN RENT – COMMENCING APPLICATION – TIME LIMITS – Residential Tenancies Act 2008 s 419 – where applicant filed application for breach of agreement outside of six month time limit – Residential Tenancies Act 2008 s 94 – whether a time limit applies to application for decrease in rent for substantial loss of amenity

Residential Tenancies and Rooming Accommodation Act 2008 ss 52, 94, 419, 420
Limitation of Actions Act 1974 s 10
Queensland Civil and Administrative Tribunal Act 2009 ss 100, 102
Queensland Civil and Administrative Tribunal Rules 2009 r 83

Harcourts Proactive Results Pty Ltd [2012] QCATA 55
Campbell v Donker [2013] QCATA 6
Grace and Ors v Metrocity Realty and Ors [2012] QCAT 663
Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158
Wechsel v Andrew (No 3) [2011] QCATA 106

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

The applicant Megan Vessi appeared in person

RESPONDENT:

Iain Allison appeared by telephone for the respondent Sharlene Howell

REASONS FOR DECISION
A Hartnett, Justice of the Peace

Ms Megan Vessi (the applicant) entered into a tenancy agreement with a real estate agent who, at the time, acted as agent for the property owner. The rental period was from 17 April 2012 to 16 April 2013. The weekly rent was $440. The applicant’s share was $138. The applicant appeared at the Tribunal in person. Mr Iain Allison appeared on behalf of Ms Sharlene Howell (the respondent) by phone. Mr Allison is the property owner.
Why Ms Vessi chose to commence these proceedings against Ms Howell rather than against Mr Allison appears to be based on the fact that Ms Howell had assumed some managerial responsibility for the property after the real estate agent discontinued acting for Mr Allison. I am satisfied that Ms Howell and Mr Allison intended to respond to the application together. Even if I were not satisfied of this, Ms Howell did not plead to the Tribunal that she was not the proper party to the proceedings. Mr Allison, who would have been the proper party in any event, appeared before the Tribunal. Much of the documentation supplied in respect of Ms Howell’s written submissions is co-signed by both Ms Howell and Ms Allison. I see no difficulty…

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 Vessi v Howells

Details

AGLC: Vessi v Howells [2013] QCAT 674
Case: [2013] QCAT 674
Decision Date: 28 November 2013

CaseChat Overview and Summary

In the matter of Vessi v Howells, the applicant, Ms Vessi, alleged that the respondent, Mr Howells, had breached their residential tenancy agreement. Ms Vessi claimed that this breach resulted in her suffering a substantial loss of amenity in her rented property. She argued that she was entitled to compensation for this loss and sought a reduction in the rent she paid to Mr Howells. The dispute was heard by the Residential Tenancy Tribunal of Queensland.

The court was required to determine two key legal issues. The first was whether the application should be treated as one for a breach of agreement or as an application for a reduction in rent due to a substantial loss of amenity. The second was whether the statutory time limits under the Residential Tenancies Act 2008 applied to the applicant’s claims, particularly in relation to the timing of the application. The court needed to consider whether the application for a reduction in rent was subject to the same six-month time limit as an application for breach of agreement.

In its decision, the court held that the application should be treated as one for a breach of agreement. The court found that the applicant had sought a reduction in rent as a remedy for the alleged breach, rather than as an independent claim. Consequently, the application was subject to the same time limits as an application for breach of agreement. However, the court determined that the statutory time limits did not apply to the applicant’s claim for a reduction in rent for substantial loss of amenity. This was because such a claim was not subject to the same time limits as an application for breach of agreement. The court awarded the applicant $414 in compensation for the loss of amenity, to be paid by the respondent within 21 days.

Orders

Orders of the court

1. The respondent pay to the applicant the amount of $414 within 21 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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