Votiva Realty v McNamara

[2012] QCATA 75

CITATION: Votiva Realty v McNamara [2012] QCATA 075

PARTIES:	Votiva Realty (Applicant/Appellant)
v
Rebecca McNamara (Respondent)

APPLICATION NUMBER: APL458-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Acting Deputy President

DELIVERED ON: 27 April 2012

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal is refused.

CATCHWORDS:

Residential Tenancy – where lessor failed to address a mould problem in the premises – whether the responsibility of the Body Corporate

Queensland Civil and Administrative Tribunal Act2009, s 142(3)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Ms McNamara rented a home unit from the applicant as agent for the lessor.  The home unit was in a block of units in Nundah managed by Strata Care Aust Pty Ltd.  Ms McNamara complained to Votiva about mould in the home unit which was a recurring problem.  Apparently the mould was caused by water ponding on the external wall of the home unit causing moisture to penetrate the walls thus creating the mould problem.

1. On 27 June 2011 she gave a Notice to Remedy Breach about the mould to the respondent, but nothing was done.  Then, on 15 July 2011, she commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal claiming compensation as a result of damage caused to her personal property by the mould.  She also sought compensation by way of a reduction in rent for the period. 

1. It seems that Strata Care, who had responsibility for the outside area were not prepared to take any steps to remedy the water problem which caused the mould. 

1. On 26 October 2011 the matter came on for hearing before a Tribunal Adjudicator.  Both Ms McNamara, as well as a Mr Constanzo representing Votiva gave evidence.  Mr Constanzo frankly and sensibly conceded that Ms McNamara’s personal property had been damaged by the mould and that a payment of compensation was reasonable.  However, he took the position that the cause of the mould was not the responsibility of the lessor but was the responsibility of Strata Care.  During the course of the hearing in an exchange between Mr Constanzo and the Adjudicator it was pointed out that Ms McNamara had no contractual relationship with Strata Care, her contractual relationship was with the lessor and in these circumstances Votiva, as the lessor’s agent. 

1. The learned Adjudicator was satisfied that the compensation that flowed from the breach of the tenancy agreement to provide suitable and usable premises, amounted to a reduction of rent of $50 per week.  Compensation for the damage to her personal property of $2,295.00 was also allowed.  The final order was that Votiva was to pay compensation to the applicant of $4,895.00.

1. In her reasons, she acknowledged that Votiva and the lessor might have a cause of action against Strata Care or the Body Corporate because this loss was a result of a failure to maintain the common area controlled by the Body Corporate.

1. From that decision, Votiva has filed an application for leave to appeal or appeal.  Leave to appeal is necessary.[1]  The grounds of appeal are that the decision should be set aside because Strata Care did not attend the hearing.  Furthermore, the decision did not make provision for a payment date and that Ms McNamara had an opportunity to move out at an earlier time.  Finally, it is contended by Votiva that Strata Care should pay the compensation.  The learned Adjudicator’s reasons carefully consider the contractual relationship between Ms McNamara and the lessor and the lessor’s obligation to ensure the premises are suitable for occupation.  She also considered the relationship between the lessor and the Body Corporate and the lessor’s standing to be in a position to be indemnified by the Body Corporate if the cause of the lessor’s loss is the Body Corporate’s failure to maintain the common area. 

   [1] QCAT Act, s 142(3).

1. As between Ms McNamara and the lessor/lessor’s agent the decision to award compensation is justified under the terms of the Residential Tenancy Agreement and the Residential Tenancy and Rooming Accommodation Act 2008.

1. The real complaint here is that the lessor feels the responsibility for Ms McNamara’s loss is the Body Corporate but that, of itself, does not point to any error on the part of the learned Adjudicator in dealing with the lessor’s obligations to the tenant.  No complaint is made about the assessment of compensation and in fact, Mr Constanzo did not raise any objection about this during the course of the hearing.  In the written submissions the applicant simply reiterates its position that the real responsibility for Ms McNamara’s loss is Strata Care/Body Corporate and not it, as the lessor’s agent.  The submissions add nothing to that which is contained in the application for leave to appeal. 

1. The fact that there is no date for payment nominated does not vitiate the decision.  In the absence of a date the monies are payable forthwith.

1. For leave to appeal to be granted, the applicant must show there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. As no error has been identified in the learned Adjudicator’s decision nor is any apparent and there is no other basis upon which leave could be granted, leave to appeal must be refused.