Walker v Ison - [2017] QCATA 64

CITATION:

Walker v Ison [2017] QCATA 64

PARTIES:	Peter Walker Lisa Walker (Applicants/Appellants)
v
Christopher Ison (Respondent)
APPLICATION NUMBER:		APL284-16

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

DELIVERED ON:

21 May 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

1. The tribunal grants leave for the applicant to appeal.

2. The tribunal decision of 25 November 2016 is set aside.

3. The respondent is ordered to pay the applicants $3,659.91 ($3,070.00 plus $589.91) in compensation and $315.70 filing costs within 30 days.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where tribunal decision dismissed a minor civil compensation claim for unpaid excess water charges and the reasonable cost of replacing a damaged pool liner – no hearing or determination of the water charges claim – where lessor’s obligations to ensure rented residential premises and items are in good repair – where tenants have a duty to maintain and yield up premises in repair – whether lessor can recover reasonable loss suffered as a result of the tenants deliberate action to drain the pool as a precaution against health risks instead of chemically controlling algae growth – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009, ss 32, 142

Residential Tenancies and Rooming Accommodation Act 2008, ss 185, 188, 217, 362, 419, 420, 421, 429

Graham v Markets Hotel Pty Ltd (1943)
67 CLR 567
Gration v C Gillan Investments Pty Ltd [2005]
2 Qd R 267
Haskell v Marlow [1928] 2 KB 45
Jones v Bartlett (2000) 205 CLR 166
Joyner v Weeks [1891] 2 QB 31
Marsden v Edward Heyes Ltd (1927) 2 K.B. 1
Proudfoot v Hart (1890) 25 QBD 42
Warren v Coombes (1979) 142 CLR 531

APPEARANCES and REPRESENTATION:

This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

The lessors of residential premises in Charters Towers apply for leave to appeal a tribunal decision dismissing a minor civil compensation claim for unpaid excess water charges and the reasonable cost of replacing a damaged pool liner ($3,070).
The respondents deny any liability for reinstating the pool but do not contest the extra water claim except for the 70kL @ $1.33 related to the pool liner claim.
Liability for the pool liner expences was argued and decided as if it depended on whether the compensable loss was caused by a latent fault in the pool’s filtration system (the applicant’s responsibility) or the inactions of the respondents in allowing algae to build up in the pool in December 2015 and then “illogically” draining the pool.
The tribunal formally dismissed the pool liner claim after a hearing but gave no specific consideration nor reasoned conclusions about the water charges.

The context

On 5 June 2015 the applicants handed…

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.

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Details

Case: [2017] QCATA 64
Decision Date: 21 May 2017

CaseChat Overview and Summary

The case of Walker v Ison involved a dispute over unpaid excess water charges and the reasonable cost of replacing a damaged pool liner in a residential tenancy. The matter was originally decided by a tribunal, which dismissed the claim. The applicant, Walker, sought leave to appeal the tribunal's decision, arguing that the tribunal had not properly considered the lessor's obligations under the residential tenancy agreement and the tenants' duty to maintain the premises in good repair. The appeal tribunal was required to determine whether the lessor could recover reasonable losses suffered as a result of the tenants' deliberate action to drain the pool as a precaution against health risks instead of chemically controlling algae growth. Additionally, the tribunal needed to decide whether leave to appeal should be granted.

The appeal tribunal found that the tribunal had erred in its consideration of the lessor's obligations and the tenants' duties under the residential tenancy agreement. The tribunal had not properly assessed the evidence and had failed to consider the contractual obligations of both parties. The appeal tribunal set aside the original decision and ordered that the tenants pay the lessor compensation for the unpaid excess water charges and the cost of replacing the pool liner. The tribunal also granted leave for the applicant to appeal and ordered the respondent to pay the applicants' filing costs.

The appeal tribunal's decision was based on the premise that the tribunal had not properly assessed the evidence and had failed to consider the contractual obligations of both parties. The tribunal had not adequately considered the lessor's obligations to ensure the rented premises and items were in good repair, and the tenants' duty to maintain and yield up the premises in repair. The tribunal had also failed to properly consider the tenants' deliberate action to drain the pool as a precautionary measure against health risks instead of chemically controlling algae growth. As a result, the appeal tribunal granted leave for the applicant to appeal, set aside the original decision, and ordered the respondent to pay the applicants' compensation and filing costs.

Orders

Orders of the court

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

1. The tribunal grants leave for the applicant to appeal.

2. The tribunal decision of 25 November 2016 is set aside.

3. The respondent is ordered to pay the applicants $3,659.91 ($3,070.00 plus $589.91) in compensation and $315.70 filing costs within 30 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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