Wechsel v Andrew (No 3)

[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…