Vloedmans v Malseed
[2014] QCATA 174
•14 July 2014
| CITATION: | Vloedmans v Malseed [2014] QCATA 174 |
| PARTIES: | Cara Vloedmans (Applicant/Appellant) |
| v | |
| Michael Malseed (Respondent) |
| APPLICATION NUMBER: | APL028 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President |
| DELIVERED ON: | 14 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 19 December 2013 is set aside. 4. Cara Vloedmans shall pay Michael Malseed $4,484.60 within 28 days of the date of these orders. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where tenant’s claim for compensation – where lessor did not appear at hearing – whether grounds for reopening – where tribunal ordered 66 weeks’ compensation – where reasons for decision not clear – whether claim limited by s 419 RTRA – whether substantial reduction in amenity for 66 weeks - whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i) Pickering v McArthur [2005] QCA 294 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
In August 2012, Mr Malseed rented a rural property from Mr and Mrs Vloedmans. By the end of the tenancy agreement, neither side was happy with the condition of the property and both lessor and tenant thought that the other was breaching tenancy obligations.
Mr Malseed gave Mrs Vloedmans a dispute resolution request on 23 September 2013. On 31 October 2013, Mr Malseed filed an application for compensation. He claimed a reduction in rent of $200 per week for 66 weeks plus an extra $200 per week for 12 weeks at the end of the tenancy. A Magistrate, sitting as a member of the tribunal, ordered Mrs Vloedmans pay Mr Malseed $15,884.60 compensation.
Mrs Vloedmans wants to appeal that decision on the bases that she had no notice of the hearing. She says that she has a compensation claim against Mr Malseed which she did not pursue because she was “happy to get rid of him”.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3] per Keane JA.
Mrs Vloedmans’ application for leave to appeal is framed as an application for a reopening. The appeal tribunal may refer a matter to the tribunal, if it considers that the reasons for the application or appeal constitute a reopening ground.[3] Thereafter, the tribunal can grant a reopening if a party did not appear at the hearing and had a reasonable excuse for not attending.[4]
[3]QCAT Act s 143A
[4]QCAT Act s 139(4)(a) and Schedule 3 – definition of reopening ground.
Mrs Vloedmans says she did not receive the notice of hearing. She says there are two reasons for that. The first is that she was overseas on holiday between 6 December 2013 and 4 January 2014. The file reveals that the notice of hearing was posted on 1 November 2013. In the ordinary course of post, Mrs Vloedmans should have received the notice on 5 November 2013. On that basis the fact that Mrs Vloedmans was away in December is not relevant and is not a reasonable excuse for failing to appear.
The second reason is that the notice of hearing was posted to her investment property, and the tenants there took some time to hand it on to her. The notice was posted to the address in Mr Malseed’s application. The address in Mr Malseed’s application is the same address as that given on the tenancy agreement. Mrs Vloedmans has not suggested that she advised Mr Malseed of a change of address. She does not explain why, in almost a month, she did not receive the notice of hearing. In the absence of those explanations, Mrs Vloedmans’ reason for her non appearance is, again, not reasonable. To the extent that the application for leave to appeal should be considered an application to reopen, the application is refused, and this appeal tribunal will not refer the matter to the tribunal.
Mrs Vloedmans has also filed additional evidence with her application for leave to appeal. The appeal tribunal will only accept additional evidence if it was not reasonably available at the time the proceeding was heard and determined. Where a party seeks to rely on such evidence, the party must satisfy three tests: with reasonable diligence, could the evidence have been obtained for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[5]
[5]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
Mrs Vloedmans’ explanation of why the additional evidence was not available at the hearing is that she was not present at the hearing. For the reasons outlined above in relation to the re-opening application, the additional evidence should not be admitted.
Mrs Vloedmans does not suggest that the learned Magistrate’s decision was in error. It is not usually the appeals tribunal’s task to look for error where none is suggested, however there is obvious error on the face of the learned Magistrate’s decision.
The tribunal can give a tenant compensation on two bases. It can give damages for breach of the tenancy agreement only if the application for compensation is made within 6 months, after the party becomes aware of the breach.[6] A reference to “making an application” includes a reference to making a dispute resolution request to the Residential Tenancies Authority.[7]
[6]Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 419(3).
[7]s 417(1)(b).
Mr Malseed made a dispute resolution request on 25 September 2013. Therefore, he cannot claim compensation for any breach of the tenancy agreement prior to 23 March 2014.
The learned Magistrate did not make any findings about when the breaches of the tenancy agreement occurred, or, whether a reduction of half the rent was reasonable. Instead, he referred to a requirement that the tenancy be clean and fit for the tenant to live in from the start of the tenancy.[8] The Magistrate referred to alleged breaches of quiet enjoyment that occurred early in the tenancy.[9] He found “breaches on a number of levels”[10] and awarded compensation for the whole period of the tenancy.
[8]Transcript page 1-8, lines 27-30.
[9]Transcript page 1-8, lines 23-24.
[10]Transcript page 1-8, line 34.
That cannot be the correct approach. The learned Magistrate should have considered when each breach occurred, whether it gave the tribunal jurisdiction and what, if any, compensation should be ordered.
The tribunal can also award compensation if the amenity or standard of the premises decreases substantially other than because of malicious damage by the tenant.[11] There is no time limit on compensation orders of this type,[12] but the tenant must show that the character of the premises changed during the tenancy, and to a substantial degree.
[11]Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 94(2)(b).
[12] Masinello v Parker & Anor (No.2)[2013] QCATA 325.
In August 2013, third party contactors started erecting a gas line near the premises. With the permission of the lessors, the contractors had access to a dam and water pump on the property, so as to run an industrial pump only 20 to 30 metres from the house. They had semi trailers running past the house “all day long”. Those activities were implicit in the carrying out of the work agreed to by the lessors. The learned Magistrate’s decision to give Mr Malseed 12 weeks compensation for the loss of amenity resulting from those activities is unexceptional.
The learned Magistrate’s decision to give Mr Malseed 66 weeks compensation, which is the full period of the tenancy, cannot be correct. It is implicit in the learned Magistrate’s decision that the condition of the property was “unliveable” from the start of the tenancy. That is not the test. As I have already pointed out, compensation is only payable if there is a reduction in the amenity. If the amenity was always poor, the relevant provision cannot apply.
The learned Magistrate’s decision to order compensation of $13,200 should be set aside. In deciding an appeal on mixed fact and law, as here, the appeals tribunal must decide the appeal by way of rehearing.[13] While there is some material that addresses the issue of proper compensation, Mr Malseed’s material is, sadly, deficient.
[13]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 147(2).
The evidence shows that Mr Malseed found out about the absent smoke alarms and defective wiring in August 2013. That claim is within time but his maximum claim for that breach would be just 10 weeks. That period coincides with the 12 weeks claimed for loss of amenity due to the gas line contractors.
Mr Malseed should always have known that the roof was not of legal height. The breach occurred more than 6 months before the dispute resolution request, so no compensation is payable.
Mr Malseed should also have known that the fly screens were old and deteriorating, as there is no suggestion that this occurred suddenly at some point during the tenancy. Even if Mr Malseed found out about the breach within time, the damages that flow from defective flywire are not significant.
Mr Malseed gives no detail of when the spa bath started leaking. As he has not discharged his onus of proving the claim, he should not receive compensation.
Mr Malseed says that the broken sewage pipe occurred in January 2013 but there is no evidence of any real complaint to Mrs Vloedmans about it until August 2013. I am, therefore, not persuaded that the broken pipe was a problem that justified compensation until August 2013.
Mr Malseed also stated that the January 2013 floods prevented access to the property for 2 weeks and that they had to buy a four wheel drive vehicle to access the house after that. Once again, there is no evidence of a complaint about that in January or February. There is no invoice for the four wheel drive. Mr Malseed has not provided sufficient evidence to allow me to order compensation for this claim.
Mr Malseed’s claims came to a head when his amenity was affected by the pipe line contractors. The learned Magistrate allowed a reduction in rent of $200 per week for that period. That is a reasonable reduction in rent for the loss of amenity suffered during that period. Any further reduction in rent would be “double dipping”.
Leave to appeal is granted and the appeal allowed. The decision of 19 December 2013 is set aside. I order that Mrs Vloedmans pay Mr Malseed $4,484.60 ($4,200 plus filing fee of $284.60) within 28 days of the date of these orders.
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