Wechsel v Andrew (No 3)
[2011] QCATA 106
•28 April 2011
| 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
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.
Ms Wechsel has sought leave to appeal that decision. Leave is necessary.[1]
[1] QCAT Act, s 142(3)(a)(i).
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).
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.
This Appeal Tribunal ordered that the matter be heard and determined on the papers, and the parties have filed and exchanged written submissions.
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.
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 and the tenants.
The circumstances said to have effected the amenity of the premises included significant amounts of water seeping in to one bedroom; problems with a bathroom which were said to reduce its utility; problems with another bathroom, which had undergone renovation; problems with another bedroom; and, various other difficulties including problems with electricity metering, pool gates, and window catches.
The learned Magistrate gave lengthy reasons for his decision in which he observed that, at a rent of $650 per week, the house was ‘…at the higher end of the market’, and said:
When one approaches a house and agrees to pay an amount of $650 a week to rent that house, it is reasonable to expect that the house will be in good condition, and that all aspects of the premises and land upon which it is situated will be able to be utilised.
[10] As to the extent to which the amenity was reduced, while his Honour did not use the actual word ‘substantially’ he nevertheless set out that part of s 94 in full and referred, in his reasons, to ‘…significant problems with the house’ and also said the house was of ‘…significantly less quality than the house … contemplated under the lease’.
[11] In context it is apparent that his Honour was using ‘significantly’ as an alternative to ‘substantially’. There is nothing surprising, or obviously wrong, in using those words interchangeably.
[12] As to the process by which he came to assess an appropriate reduction at $200 per week, the Reasons contain an explanation:
Now, in coming to that assessment, I accept that there will be times during the course of that tenancy where the amenity will be more, and other times when the amenity will be less. But it would be impractical to try and go through each week and say, well, this is how much the rent was worth on that week; this is how much it was worth in that week. And as I mentioned earlier, I will come to a global figure that I think is fair and appropriate in the circumstances. At the risk of labouring the point, again, one starts at a figure of $650 a week. There are houses that are worth more than that per week. But that being said, it is still a significant amount, and I think it has been described at the premium end of the market.
[13] The uncontested evidence was that the rental property should have had five useable bedrooms and two useable bathrooms, but in truth it actually had at any given time only four useable bedrooms and one bathroom. There was evidence which showed these were matters of significance to the tenants, and their family.
[14] Section 94 plainly contemplates that matters arising under it will be matters of degree, and will vary with the circumstances in each particular case. It cannot be said that the learned Magistrate fell into error when he concluded that a reduction in useable living space in a house with a fairly high rent involved a substantial decrease in the amenity or standard of the premises – or that, in those circumstances, a reduction in the rent was appropriate.
[15] The learned Magistrate was in a position to assess the actual loss of amenity suffered by the tenants, and the proper measure for it. His reasons are, with respect, clear. He exposed his conclusions about the facts, and his application of the legislation.
[16] It is not apparent from the section that a precise mathematical formula for calculating the reduction in amenity must be created, and applied. The exercise would be artificial, and is not necessary. The section requires a determination whether there has been a ‘substantial’ reduction and, if so, a reduction in rent calculated ‘accordingly’. Like the former, the latter is a matter of degree. The learned Magistrate exercised his jurisdiction under the provision broadly, but fairly; it does not call for anything more or, in particular, anything more detailed.
[17] Nothing in the applicant’s case shows that the tribunal fell into an error in construing the legislation, or in the learned Magistrate’s findings of fact. No basis has been established, then, warranting interference with his decision, and leave to appeal must be refused.
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