Williams v Oziris Pty Ltd
[2012] QCATA 244
•27 November 2012
| CITATION: | Williams v Oziris Pty Ltd [2012] QCATA 244 |
| PARTIES: | Graham Williams (Applicant/Appellant) |
| v | |
| Oziris Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL286-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 27 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal and appeal is granted but only to the extent of setting aside the order by which the Residential Tenancy Authority repaid the bond to the tenant. 2. The rental bond of $3,000.000 (if still held by the Residential Tenancy Authority) is to be disbursed to the appellant. |
| CATCHWORDS: | LANDLORD AND TENANT – RENT – VARIATION OTHERWISE THAN UNDER TERMS OF LEASE – where Applicant landlord rented premises to Respondent tenant – where tenant claimed premises uninhabitable – where tenant vacated premises prior to end of lease – where landlord engaged new tenant – where landlord sought compensation for abandonment, compensation for damage to property and costs associated with engaging new tenant – where Tribunal found premises not uninhabitable – where Tribunal found state of premises entitled tenant to reduction in rent – where Tribunal found tenant not liable for rental payments beyond date of new tenancy – where Tribunal ordered tenant to pay sum of $5,818.99 to landlord – where Tribunal ordered bond be released to tenant – whether Tribunal erred in finding that tenant not responsible for all costs associated with early vacation of the premises – whether the Tribunal erred in finding that the tenant was not responsible for costs associated with damage allegedly caused to the property during tenancy – whether Tribunal erred in allowing reduction in rent Queensland Civil and Administrative Tribunal Act 2009, s 32 Cachia v Grech [2009] NSWCA 232 |
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
In February 2012 Mr Williams rented residential premises at Edge Hill to Oziris Pty Ltd for twelve months at a weekly rent of $750.00, and with a rental bond of $3,000.00. The physical tenants were Mr Griffiths and his family and according to the tenancy agreement Mr Griffiths ‘guaranteed’ the performance, by the nominated tenant Oziris Pty Ltd, of its obligations. Nothing in the evidence or documents produced in the matter establishes that Mr Griffiths is in fact an officer of the company but that may, I think, safely be assumed.
In May 2012 Mr Williams brought proceedings in QCAT’s minor civil disputes jurisdiction in Cairns against Oziris and Mr Griffiths claiming compensation for abandonment in the sum of $5,250.00, particularised as unpaid rent between 14 April and 24 May 2012.
When the matter came on for hearing before a Magistrate, sitting as a QCAT member in the jurisdiction in Cairns on 21 June 2012, Mr Williams was also claiming some compensation for items allegedly damaged in the premises and for costs associated with obtaining a replacement tenant.
The transcript of the hearing in the matter before an Acting Magistrate on 21 June, at which both Mr Williams and Mr Griffiths appeared and gave evidence on oath, and made submissions, records the Magistrate towards the end of the hearing saying that Mr Williams lacked proper proof of some of his compensation claims, and adjourning the matter to 23 August ‘… for production of further evidential material’.
There is no transcript of the proceedings on 23 August but, on that day, the learned Acting Magistrate ordered that Oziris Pty Ltd pay Mr Williams the sum of $5,818.99 comprised of $5,464.14 for rent from 5 May to 24 June 2012 at the rate of $107.14 per day (less an overpayment of $178.70), and $53.00 for Mr Williams’ advertising costs for a replacement tenant. It was also ordered that the rental bond of $3,000.00 be paid out to Oziris Pty Ltd.
The learned Acting Magistrate published short written reasons some time after 23 August. They record that the tenant had given notice to the landlord before April 2012 seeking the remedy of defects in the premises which, it was alleged, rendered them uninhabitable; and, that the tenants then vacated on 20 April 2012.
The learned Acting Magistrate’s relevant findings were:
a) He was not persuaded by the evidence from Mr Griffiths that the defects in the premises rendered them uninhabitable.
b) The tenant had paid the rent in full up to 20 April 2012, when Mr Griffiths and his family vacated.
c) That the landlord appropriately mitigated his loss by engaging new tenants from 25 June 2012.
d) That the tenant was not liable for rent beyond that date.
e) That, while the defects in the premises were not such as to render them uninhabitable, they did entitle the tenant to a reduction in rent of $200.00 per week for the period 10 February-4 May 2012.
Mr Williams seeks leave to appeal the learned Acting Magistrates decision. By direction of the Appeal Tribunal each party was ordered to file and exchange written submissions. Nothing has been received from Oziris Pty Ltd or Mr Griffiths. The material filed in the application for leave to appeal does not show whether or not the tenant has paid the sum of $5,818.29, or whether the holder of the bond, the Residential Tenancies Authority, has refunded the bond of $3,000.00 to the tenant.
Mr Williams has also applied for a stay of the order – as I understand it, insofar as it directs the Residential Tenancy Authority (‘RTA’) to release the bond to the tenant. Again, by direction of the QCAT Appeal Tribunal, that matter was to be determined on the papers and written submissions have been received from Mr Williams, but not from the tenant.
Mr Williams' grounds for seeking leave to appeal (and to appeal if leave is granted) are that the learned Acting Magistrate erred in finding that the tenant was not responsible for all costs associated with its early vacation of the premises, in circumstances where there was a finding that the respondent was not justified in leaving the premises early. Secondly, it is said the learned Acting Magistrate also erred in finding that the tenant was not responsible for the costs ‘… associated with damaged caused to the property’ during occupancy. Thirdly, it is said that the Tribunal erred in allowing a rent reduction of $200.00.
The question whether or not leave to appeal should be granted is usually addressed according to established principles: is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The transcript shows the learned Acting Magistrate gave both parties ample opportunity to present their evidence (including documents) and submissions. The finding that the respondent was entitled to a rent reduction because of defects in the premises sits comfortably with the evidence received by the learned Acting Magistrate. There were defects which were unsatisfactory and which reduced the utility of the premises for Mr Griffiths and his family. Mr Williams argued that Mr Griffiths’ claim that delays in repairs to defects were the fault of the landlord was wrong. Nothing in the transcript suggests the learned Acting Magistrate made an error when he concluded (as it may reasonably be inferred) that the tenants were not responsible for any delay, and that those delays did affect the tenants’ reasonable enjoyment of the premises during the period for which he awarded a rent reduction.
The claim that the learned Acting Magistrate erred in finding that the tenant was not responsible for costs associated with damage to the property also suffers from the difficulty that the learned Acting Magistrate was apparently persuaded that these claims were either unsustainable, or insufficiently proven – and, again, nothing in the transcript reveals that a finding to that effect was not reasonably open to the Tribunal.
The claim that the learned Acting Magistrate erred in finding that the respondent was not liable for all costs associated with the tenants' early vacation was, in light of the finding that the tenant was not justified in leaving early, to be considered in light of s 421 of the Residential Tenancies and Rooming Accommodation Act 2008, which required the Tribunal to have regard to unpaid rent for the balance of the tenancy period, but in the context of the question whether the premises had been relet and whether the landlord had taken all reasonable steps to mitigate any loss or expense.
Mr Williams’ evidence was that he had only been able to relet the premises at a rental of $650.00 ($100.00 per week less than the rent under this agreement). The learned Acting Magistrate properly found, in those circumstances, that Mr Williams had acted appropriately to mitigate his loss. In his reasons he then said, however: ‘the respondent is not liable beyond that date’.
That conclusion could only be justified if it was found that the defects in the premises entitled the tenant to vacate; or, if those defects were continuing after the tenant vacated and continued to warrant (and explain) a reduction in the rent. It is regrettable that the learned Acting Magistrate did not explain his conclusion by reference to those things. It may reasonably be inferred from the decision that the learned Acting Magistrate was persuaded that, at the time the landlord was able to re-let the premises, the reduced rent represented a reasonable and fair commercial rent for the premises, in light of the evidence which failed to satisfy the Tribunal that the landlord had remedied the defects.
Once this is appreciated, the only defect in the learned Acting Magistrates’ conclusions is a failure to expose all of the reasoning that explained the decision. Inadequacy of reasons is an error of law warranting a grant of leave to appeal but, for the reasons just explored, nothing more flows from it and the appeal on those grounds should be refused. This is, in short, a case in which the decision of the learned Acting Magistrate sits comfortably with the evidence and does not justify interference, but suffers from the deficiency that the reasons do not fully expose how and why the decision was reached. There are, nevertheless, sufficient grounds in the reasons to be satisfied that the decision of the learned Acting Magistrate was consistent with the evidence, and the applicable law.
That said, there is one aspect of the decision which, with respect, defies logic and should be set aside: the order that the bond be paid out to the tenant. Having ordered that the tenant pay the landlord almost $6,000, to then direct that the RTA pay the bond of $3,000 to the tenant instead of the landlord, in part satisfaction of the tenant’s indebtedness under the judgment, is a plain error and injustice.
It is unclear whether the RTA has acted upon the previous order. If it has not, that order should be reversed.
It is therefore the order of the Appeal Tribunal that leave to appeal will be granted, and the appeal will be allowed but only to the extent of setting aside the order by which the RTA repaid the bond to the tenant and, instead, ordering that (if the RTA still holds the bond) it be disbursed to Mr Willliams.
In any event, detailed calculations I have made around the evidence reveal that the learned Acting Magistrate made some errors in his calculations. These indicate that the sum he awarded to Mr Williams was too high by an amount of $480.55. That circumstance reinforces the conclusion that an appeal would be futile.
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