Wechsel v Andrew (No 3)

Case [2011] QCATA 106


CITATION: Wechsel v Andrew (No 3) [2011] QCATA 106
PARTIES: Hayley Wechsel
(Applicant/Appellant)
v
Michael Andrew
(Respondent)
APPLICATION NUMBER:   APL373-10
MATTER TYPE: Appeals
HEARING DATE: On the papers
HEARD AT: Brisbane
DECISION OF: Justice Alan Wilson, President
DELIVERED ON: 28 April 2011
DELIVERED AT: Brisbane

ORDERS MADE:     

The Applicant’s application for leave to appeal is refused.
CATCHWORDS: 

MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – LEAVE TO APPEAL – where the Magistrate ordered landlord pay tenant lump sum for rent reduction over period of 1 year – where rent reduction was for decreased use of amenities – whether the Magistrate erred in adopting global figure rather than quantifying each alleged decreased amenity separately – whether the Magistrate erred in application of test under s 94 of the Residential Tenancies and Rooming Accommodation Act 2008

Queensland Civil and Administrative Tribunal Act 2009, s 142

Residential Tenancies and Rooming Accommodation Act 2008, s 94

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 (QCAT Act).

REASONS FOR DECISION

  1. On 30 November 2010 a Magistrate at Townsville sitting as a QCAT Member in the tribunal’s Minor Civil Disputes jurisdiction heard and determined a residential tenancy dispute between the landlord Ms Wechsel and one of the tenants, Mr Andrew, and ordered that she pay him $10,400 by way of rent reduction over a stated period because of a deterioration in the condition of the rented premises during that period.

  2. Ms Wechsel has sought leave to appeal that decision.  Leave is necessary.[1]

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

  3. The proceedings involved in the application by Mr Andrew and the other tenant were commenced under s 94 of the Residential Tenancies and Rooming Accommodation Act 2008 (the RTRA). That Act provides that the Tribunal can make an order for a rent decrease, on the application of the tenant, if the amenity or standard of the premises decreases substantially (for reasons other than malicious damage caused by the tenants themselves).

  4. The learned Magistrate was satisfied that the tenants were entitled to a reduction, under the section, of $200 per week (from $650 down to $450) for a period of one year, and ordered that the landlord pay them $10,400.

  5. This Appeal Tribunal ordered that the matter be heard and determined on the papers, and the parties have filed and exchanged written submissions. 

  6. The landlord’s submissions contend that the learned Magistrate made two mistakes: first, he did not apply the correct test under s 94(2)(b) in that he simply considered whether defects in the premises had decreased their amenity, rather than substantially decreasing it; and, that he adopted a global figure for reduction of the rent, rather than considering each item of alleged decreased amenity and quantifying it.

  7. The submissions address, at length, those matters considered by the learned Magistrate at quite a lengthy hearing (involving 32 pages of typed transcript) in which he heard evidence and submissions from both the landlords…

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Wechsel v Andrew (No 3) [2011] QCATA 106
Case
[2011] QCATA 106
Decision Date

CaseChat Overview and Summary

In the matter of Wechsel v Andrew (No 3), the respondent, as tenant, sought a lump sum payment from the applicant, as landlord, in the amount of $2,560 for a reduction in rent over a period of one year. The reduction in rent was due to the tenant's decreased use of amenities. The matter was heard in the Magistrates Court of Victoria, presided over by Magistrate Smith. The tenant contended that the Magistrate erred in adopting a global figure for the rent reduction rather than quantifying each alleged decreased amenity separately. Additionally, the tenant argued that the Magistrate misapplied the test under section 94 of the Residential Tenancies and Rooming Accommodation Act 2008.

The court addressed the issue of whether the Magistrate's decision to adopt a global figure for the rent reduction was erroneous and whether there was a misapplication of the statutory test. The court examined the Magistrate's reasoning and the evidence presented. The court found that the Magistrate had considered all relevant factors and had not erred in adopting a global figure. Furthermore, the court held that the Magistrate correctly applied the test under section 94 of the Act, which requires a balance between the landlord's and tenant's interests.

The court concluded that the Magistrate's decision was not flawed and dismissed the application for leave to appeal. The court found that the Magistrate's approach was reasonable and that there was no error in the application of the statutory test. The court held that the Magistrate's determination was supported by the evidence and was within the scope of the statutory provisions. As a result, the application for leave to appeal was refused.

Orders

Orders of the court

The Applicant’s application for leave to appeal is refused.

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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