Duncan v Friend [2023] QCATA 63

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Duncan v Friend [2023] QCATA 63 PARTIES: JARROD DUNCAN (applicant/appellant) v MELISSA JOY FRIEND (respondent) APPLICATION NO/S: APL136-22 ORIGINATING APPLICATION NO/S: MCDT328-22 MATTER TYPE: Appeals DELIVERED ON: 9 May 2023 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Lumb ORDERS: 1. Leave to appeal is granted in relation to Ground 2 of the Application for leave to appeal or appeal. 2. Leave to appeal is otherwise refused. 3. The appeal is dismissed. CATCHWORDS: APPEAL – GENERAL PRINCIPLES – leave to appeal – minor civil dispute – residential tenancy dispute – where claim by tenant for rent reduction because of state of premises in the course of repair work – where loss of amenity temporary – whether application for rent reduction under s 94 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) could be brought after restoration of amenity – whether compensation available under s 419 of the Act Acts Interpretation Act 1954 (Qld), s 14 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 39, s 142 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 94, s 185, s 206, s 284, s 419 Berry v Treasure & Anor [2021] QCATA 61 Bourke v Kenjad Rentals [2019] QCATA 81 Cain v Daudet [2020] QCATA 78 Challands & Anor v Jackson [2014] QCATA 330 -- 1 of 16 -- 2 Champion & Anor v Laterma Pty Ltd & Ors [2018] QCAT 392 Gould v Mazheiko & Gill [2020] QCATA 10 Hurst v Pyatt [2017] QCATA 101 Keith Bannister v David and Mariam Cheung [2014] NSWCATCD 105 McKinnon v Kirdy [2003] QSC 302 Savage Resorts Pty Ltd v Maksymiuk [2016] QCATA 184 Saxer v Hume [2022] QCATA 25 Underwood v Queensland Department of Communities (State of Queensland) [2013] 1 Qd R 252 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented REASONS FOR DECISION Introduction [1] By an Application for leave to appeal or appeal filed on 20 May 2022 (the Appeal Application), the Applicant (Mr Duncan) seeks leave to appeal, and to appeal, a decision made by the Queensland Civil and Administrative Tribunal (the Tribunal) on 27 April 2022 (the Decision). [2] The Decision was made in a proceeding commenced by the Respondent to the Appeal Application (Ms Friend) by an Application for minor civil dispute – residential tenancy dispute filed on 21 March 2022 (the MCD Application). The Respondent to the MCD Application was Ms Lauren Cathcart, who was the agent for Mr Duncan, the landlord of the leased residential premises the subject of the MCD Application (the premises). [3] In the MCD Application, Ms Friend claimed the following amounts: Rent (8 days) of $628.56; loss of wages (4 days) of $1,107.69; ‘Water Bill’ of $134.78, ‘Compensation till wk [sic] was finished’ by way of ‘rent reduction’, and recovery of ‘lodgement fees’. At the hearing, Ms Friend also raised a claim for $100.00 said to have been agreed to on behalf of Mr Duncan as an offsetting charge based on the electricity used by machines utilised in repair works carried out to the premises.1 [4] Ms Cathcart (for Mr Duncan) counter-claimed for recovery of ‘outstanding amounts’ which were quantified at the hearing as $110.96 for the gas bill that was unpaid and $100 as a contribution towards the water bill.2 [5] An oral hearing of the MCD Application took place on 27 April 2022. By the Decision, the Tribunal (constituted by an Adjudicator) ordered that Mr Duncan pay Ms Friend the sum of $950.00. The Adjudicator provided oral reasons at the conclusion of the hearing. 1 Transcript T1-5 line 45 - T1-6 line 24. 2 T1-17 line 38 - T1-19 line 16. -- 2 of 16 -- 3 [6] On my reading of the Transcript of the Reasons, the sum of $950.00 was arrived at as follows: (a) the Adjudicator allowed compensation of $950.00 in relation to the loss of amenity experienced by Ms Friend as a result of the impact of the then incomplete repair works performed at the premises, calculated on the basis of a reduction of the whole rent for one week ($550.00) and a reduction of rent of $200.00 for each of the two succeeding weeks; (b) from that amount, the Adjudicator made a deduction of $80.00, which represented a reduced amount of the claim by Mr Duncan for the water bill (this deduction reduced the total amount recoverable by Ms Friend to $870.00); (c) Ms Friend was held to be entitled to compensation of $100.00 in relation to the cost of electricity but this was offset by a corresponding amount of $100.00 found to be owing by Ms Friend to Mr Duncan in relation to the gas bill; (d) Ms Friend was also held to be entitled to recover a portion of the filing fee ($80.00), which increased the final amount recoverable by Ms Friend from $870.00 to $950.00. [7] The Adjudicator rejected Mr Friend’s claim for loss of wages. The Grounds of Appeal/Orders sought [8] The Appeal Application raises three Grounds of Appeal (which I shall refer to as ‘Ground 1’, ‘Ground 2’, and ‘Ground 3’ respectively) as follows: 1. Finding of ‘rent reduction down to zero’ not available on the evidence. 2. Member erred in applying loss of amenity pursuant to s 94 as no application was made before amenity was restored. 3. Member erred in awarding compensation pursuant to s 419 as no breach of agreement by the lessor established. [9] The Orders sought in the Appeal Application are stated as follows: 1. Set aside the compensation order of rent reduction in the sum of $950.00 2. Set aside costs order in first instance and each party pay their own filing costs. 3. Tenant outstanding amonts [sic] of $134.78 (water) and $100.00 (Gas) be waived in lieu of compensation of $100 towards electricity and contribution to water usage. [10] Although it is not entirely clear, as I read the Appeal Application, the result sought by Mr Duncan is that no amount be awarded in favour of Ms Friend on the MCD Application and no amount be awarded in favour of Mr Duncan on the counterclaim. However, Mr Duncan’s submissions also seek to challenge the reduction of the water bill to $80.00. [11] In Ms Friend’s (brief) submissions, she maintained that the smell from the glue on the floor was ‘toxic’ and the premises were ‘unliveable’, and the floors were not completed until 6 January 2022. -- 3 of 16 -- 4 Leave to appeal is required [12] An appeal against a decision by the Tribunal in a proceeding for a minor civil dispute may be made only if the party has obtained the Appeal Tribunal’s leave to appeal.3 [13] As to the Tribunal’s approach to an application for such leave, I respectfully adopt the following observations of Judicial Member DJ McGill SC in Saxer v Hume:4 … As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29. (citations omitted) [14] Further, as was said by Justice Daubney, President, in Berry v Treasure & Anor:5 There is no automatic right of appeal against minor civil dispute decisions. I respectfully adopt and endorse the following observations by the former President, Justice Alan Wilson, in Durrand v Karaolis: The Queensland Parliament has made it clear, in the QCAT Act, that so far as possible minor civil disputes of this kind are to be resolved by a simple procedure which is speedy, inexpensive and final. That conclusion is reinforced by the fact that before a party can appeal a decision in this jurisdiction it must obtain leave from the Appeal Tribunal … In other words, there is not an automatic right to appeal these decisions; rather, an applicant must first establish that it has a right to a grant of leave. (citation omitted) Standing [15] I accept Mr Duncan’s submissions filed on 20 March 2023 that he has standing to bring the Appeal Application. [16] The MCD Application was brought against Ms Cathcart acting as agent for the ‘lessor’. In my view, this was permitted by s 206 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the RTRAA),6 having regard to clause 43 of the tenancy agreement. [17] By the Decision, the ‘Lessor’ was ordered to pay to Ms Friend the sum of $950.00. Mr Duncan was plainly the ‘Lessor’. Although Ms Cathcart was the named respondent in the MCD Application, she was named as agent for Mr Duncan. In those circumstances, I consider that Mr Duncan is taken to be a party to that proceeding on 3 Subsection 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). 4 [2022] QCATA 25, [2]. 5 [2021] QCATA 61, [14]. 6 Savage Resorts Pty Ltd v Maksymiuk [2016] QCATA 184, [67]-[71] (Justice DG Thomas, President). -- 4 of 16 -- 5 the basis that he was ‘a person in relation to whom a decision of the tribunal is sought by the applicant’ (see s 39(b) of the QCAT Act). Consequently, Mr Duncan is entitled to bring the Appeal Application. [18] I will now address the Grounds of Appeal. I consider that it is convenient to commence with Ground 2. Ground 2 [19] Mr Duncan contends that the Member erred in applying loss of amenity pursuant to s 94 of the RTRAA because Ms Friend’s application was not made before amenity was restored at the premises. [20] Section 94 of the RTRAA provides: (1) This section applies if the premises— (a) are destroyed, or made completely or partly unfit to live in, in a way that does not result from a breach of the agreement; or (b) no longer may be used lawfully as a residence; or (c) are appropriated or acquired compulsorily by an authority. (2) This section also applies if— (a) services, facilities or goods to be provided to the tenant under the agreement are no longer available or are withdrawn other than because the tenant failed to meet the tenant’s obligations under the agreement; or (b) the amenity or standard of the premises decreases substantially other than because of malicious damage caused by the tenant. (3) The rent payable under the agreement decreases accordingly or, if an order for a decrease in the rent is made by a tribunal, to the extent stated in the order. (4) A tribunal may make an order for a rent decrease only if— (a) the tenant applies to the tribunal for the order; and (b) if this section applies because of subsection (1)—the premises are partly unfit to live in. [21] On the material, I consider that the following facts are not materially in dispute: (a) the water leak was detected on or about 8 December 2021 and the repairs were completed on or about 6 January 2022; (b) the MCD Application was filed on 21 March 2022; (c) the hearing took place on 27 April 2022; (d) the tenancy agreement was, at that time, due to expire on 19 May 2022. [22] As I read the Transcript, the Adjudicator proceeded on the basis that the claim for a ‘rent reduction’ could be considered as a claim for rent reduction under s 94 of the RTRAA or as a claim for compensation under s 419 of the RTRAA, but ultimately made the Decision in reliance on s 419 in order to award lump sum compensation.7 7 See T-20 lines 1-5, 32-40. -- 5 of 16 -- 6 [23] While a failure to comply with s 94 may amount to a breach actionable under s 419,8 each of the provisions has a discrete operation (and there is a specified time period for commencing an application under s 419). [24] In light of the Adjudicator’s approach (and having regard to the fact that Ms Friend expressly claimed a ‘rent reduction’), I consider that it is appropriate to proceed on the basis that the Decision may be upheld if justified pursuant to either s 94 or, alternatively, s 419 of the RTRAA. I note that the Appeal Application addresses each of those Grounds and Mr Duncan contends that Ms Friend was not entitled to succeed in reliance on either provision. [25] In relation to s 94, Mr Duncan submits: By virtue of s 94 (4) the tenant must have applied to the Tribunal for relief under this provision during the term for which amenity had decreased, but before amenity had been restored. [26] In support of that submission, Mr Duncan relies upon the following passage in Hurst v Pyatt,9 where the Member said: ... s 94 only operates prospectively to allow a tenant to apply for a reduction in their rent whilst the tenancy continues or until the Lessor restores the loss of amenity. (underlining added) [27] Section 94 was considered by the Queensland Court of Appeal in Underwood v Queensland Department of Communities (State of Queensland)10 although this particular question did not arise for determination. In considering s 94, it was said by Muir JA (with whom Dalton J (as she then was) agreed):11 [24] Sub-sections (3) and (4) of s 94 of the Act potentially give rise to awkward questions of construction. On a literal construction of s 94(3) if circumstances within subs (1) or (2) arise in respect of premises which are tenanted, the rent payable under the tenancy agreement “decreases accordingly” without the need for any order by a tribunal. Presumably, the extent of the decrease would relate to the extent to which the premises were unable to be enjoyed by the tenant. If premises are “destroyed” or made “completely unfit to live in” or are no longer able to be “used lawfully as a residence” or are “appropriated or acquired compulsorily” the ascertainment of the decrease in rent should be straightforward: in the great majority of cases, the rent would decrease to nothing. Section 94(4) appears to recognise this by confining the right to apply for a rent reduction where s 94(1) applies to circumstances in which premises are “partly unfit to live in”. [25] What is to happen in other circumstances is by no means obvious. For example, if the services of a building manager were to be provided to the tenant under the tenancy agreement but ceased to be provided, by what extent should “the rent payable under the agreement decrease”? What decrease should there be, for example, if the “amenity… of the premises decreases substantially” through inattention to the gardens, grounds and 8 Gould v Mazheiko & Gill [2020] QCATA 10, [19] (Justice Daubney, President). 9 [2017] QCATA 101, [20] (Member Hughes). Member Hughes also made similar observations in Cain v Daudet [2020] QCATA 78, [21]. 10 [2013] 1 Qd R 252. 11 At [24]-[26]. -- 6 of 16 -- 7 stairwells of the unit complex? How can “the rent payable under the agreement decrease accordingly” unless a determination is made of the amount of the decrease? [26] Any such decrease will not be capable of mathematical calculation or determination by application of a formula. The amount of the reduction will be arrived at by judgments upon questions in respect of which different persons, acting reasonably, will be capable of reaching different conclusions. These matters suggest that s 94 was not intended to provide for any automatic decrease in rent where premises were partly unfit to live in or where one or more of the matters in subs (2) and (3) applies. Also supporting that conclusion is the fact that, normally, there will be no certainty as to the application of s 94(2)(b) to particular facts until a tribunal has held that there has been a relevant substantial decrease. The question whether premises are “completely or partly unfit to live in” may also give rise to disputed questions of fact. [28] In Champion & Anor v Laterma Pty Ltd & Ors,12 Adjudicator Alan Walsh followed Hurst.13 Adjudicator Walsh concluded that the Tribunal’s discretion to order a rent reduction is enlivened upon filing an application during the currency of a tenancy.14 In further observations, Adjudicator Walsh also expressed the view that ‘the Tribunal is not empowered by section 94 of the [RTRAA] to order a rent reduction after a tenancy agreement has been discharged by operation of law’.15 This appears to suggest that an order may not be made under s 94 after discharge of the tenancy agreement even if the application under s 94 is filed during the currency of the agreement (and before the amenity of the premises has been restored). [29] In Bourke v Kenjad Rentals,16 Justice Carmody, addressed the scope of s 94 and referenced Hurst. His Honour said, relevantly: [12] The submission that a valid rent reduction claim must be brought during the tenancy was rejected in Masinello v Parker & Anor (No 2) even though there is no equivalent to s 419(4)(a) RTRA Act in s 94 RTRA Act. [13] On this reasoning rental payments already made are recoverable under s 94(3) RTRA Act for a lessor’s breach that substantially reduces the standard or amenity of the premises up to six (6) years after the lease has finished. The appellant also relies on Vessi v Howells and Wechsel v Andrew (No 3) as authorities for the same proposition. [14] The alternative interpretation favoured in Campbell v Donker (a mould case) and Hurst v Payatt [sic] (a broken dishwasher) is that s 94(3) RTRA Act is clearly intended to enable the tribunal to temporarily release the tenant from the contractual obligation to pay the agreed rent until the lost amenity or standard of the premises is fully restored and not as a means of reimbursing the rent paid by the tenant when the lessor was in breach of maintenance and repair obligations. … 12 [2018] QCAT 392, [25]. 13 See [53], [72]. 14 At [62]-[63]. 15 At [85]. See also [68]-[71]. 16 [2019] QCATA 81. -- 7 of 16 -- 8 [16] In my opinion, consideration of the statutory text, purpose and context of the RTRA Act lead to the conclusion that: - both the tribunal’s jurisdiction to hear and decide minor civil disputes and its discretion to make a rent decrease order is conditioned on the tenant making a specific application to invoke them; - the monetary compensatory regime in s 420 RTRA Act provides a legal remedy for non-performance or breach of tenancy obligations regardless of enjoyment loss; - rent relief, by contrast, is not compensatory in nature. It focusses on fairness not fault and derives from the restitutionary theory of unjust enrichment and the equitable doctrine of abatement not the law of compensation; - rent reduction is intended to be prospective and temporary; - the rent payable by the tenant under the terms of the tenancy agreement is lowered by a stated amount to reflect the substantially diminished value of the amenity or standard of the premises pending reinstatement as a matter of fairness; - the tenant must apply for a rent decease during the tenancy because although it is not time limited the right to apply logically lapses with the obligation to pay rent. Failure to complain and prolonged delay weigh against a grant; - the tribunal has no discretion to award rent refunds for lessor breaches after the tenancy has ended - whether statute barred or not - even where a pro tanto rebate during the term of the agreement may have been justified. The obvious practical reason for this is that when the tenancy has already ended the rent account is closed and a rent decrease crediting the tenant’s ledger with stated sums until the services or premises are reinstated or to the end of the term of the agreement obviously cannot meaningfully be made; - retrospective lump sum compensation orders are contrary to the purpose of s 94(3) RTRA Act and the text of s 419(2) RTRA Act even in cases where a lessor’s unremedied breach causes a substantial decrease in amenity or standard of the premises; - on the preferred construction the rent relief discretion in s 94(3) RTRA Act does not arise at all where the tenant’s application (however expressed) is really for an order about a breach under s 419(2) RTRA Act or to resolve a general dispute about a tenancy related agreement under s 429(1) RTRA Act; - failure to apply for an order under s 419(2) RTRA Act within six (6) months is deemed to waive or forgive past lessor breaches; - a s 94(4) RTRA Act application, therefore, is not a valid alternative to a s 419(2) RTRA Act claim for breach-based compensation or as an appropriate order to resolve a s 429 RTRA Act general tenancy dispute; - alternatively, s 419(3) RTRA Act applies to prevent the tribunal from making a rent reduction order for breach relatable s 94(2) RTRA Act events and precludes amendment of an application to add a claim for -- 8 of 16 -- 9 s 94(3) RTRA Act relief more than six (6) months after the tenant became aware of the underlying breach. (citations omitted) [30] In Bourke, the lessee was held not to be entitled to rely on s 94 because she did not apply for a rental decrease order under s 94(3) of the RTRAA.17 [31] In Gould v Mazheiko & Gill,18 Justice Daubney, President, said: [15] In Hurst v Pyatt, Member Hughes was not satisfied that s 94 permits a ‘retrospective’ rent reduction. Member Hughes referred to Campbell v Donker, where the Appeal Tribunal had previously held that s 94 permits a decrease of rent for a specific amount, rather than lump sum compensation calculated by the amount of the rent reduction and the period of time over which the amenity or the standard of the premises is decreased. Member Hughes interpreted this to mean: In other words, s 94 only operates prospectively to allow a tenant to apply for a reduction in their rent while the tenancy continues or until the Lessor restores the loss of amenity. [16] In Champion, Adjudicator Alan Walsh agreed with this proposition and referred to the fact that s 94 is worded in the present and future tense, and not in the past tense, as further support. Adjudicator Walsh also placed weight upon the fact that s 94 is unaccompanied by a provision such as that in s 419 stating that the application for rent reduction might be made after the end of the agreement. Adjudicator Walsh was clearly referring to s 419(4)(a), which states that an application for an order under s 419 may be brought during the term, or after the end, of the agreement. He said: If the legislature had intended that an application for rent reduction could be filed after the end of a tenancy, months or years later, i.e. after discharge of the statutory tenancy contract by operation of law, it would have said so in the Act but did not. [17] In Bourke v Kenjad Rentals, Carmody J reached the conclusion that the tenant must apply for a rent decrease during the tenancy. His Honour contrasted the purpose of the monetary compensation regime under ss 419 and 420 with rent relief under s 94, stating that the former provides a legal remedy for non-performance of breach of tenancy obligations regardless of loss of enjoyment, while rent reduction focusses on fairness not fault and derives from the restitutionary theory of unjust enrichment and the equitable doctrine of abatement, not the law of compensation. His Honour considered that rent reduction is intended to be prospective and temporary. The rent payable decreases to reflect the diminished amenity or standard of the premises, pending their remedy. He said that ‘although it is not time limited, the right to apply [for a rent reduction] logically lapses with the obligation to pay rent’. [18] I would respectfully align myself with the latter view. In addition to the reasons given by the learned members in the decisions cited above, I would further add that, as a matter of logic, applications under s 94 must be limited to being made during the tenancy. The 17 See [18]. 18 [2020] QCATA 10, [15]-[19]. -- 9 of 16 -- 10 legislative intention to limit compensation claims to 6 months is clear. It cannot have been the legislature’s intention to provide a means by which the strict time limit under s 419 can be so easily subverted. [19] Looking to the structure of the RTRA Act, s 94’s position in Chapter 2, Part 2 – Rent, Division 1 – Residential tenancy agreements would tend to support the view that it is intended to be used during the currency of the agreement. Certainly, a failure to comply with s 94 could amount to a breach actionable under s 419, as many other provisions within this chapter can, but it would then be subject to the s 419 limit. (citations omitted, emphasis added) [32] The prevailing view in the Tribunal, which I adhere to, is that an application pursuant to s 94 of the RTRAA must be brought during the tenancy. Ms Friend filed her application during the tenancy. Further (if it be relevant), the Decision was made during the tenancy. The issue raised by Ground 2 is whether s 94, upon its proper construction, requires an application to be brought before, relevantly, the amenity of the premises is restored. If that is the correct position, it follows that a claim under s 94 was not available to Ms Friend because the amenity of the premises had been restored by no later than 7 January 2022 and the MCD Application was filed on 21 March 2022. I consider that Ground 2 raises a question of general importance upon which a decision of the Appeal Tribunal would be to the public advantage. I grant leave to appeal in respect of Ground 2. [33] For the following reasons, I consider that a claim under s 94 was not required to be brought by Ms Friend before the restoration of the amenity of the premises. [34] First, with respect to the statement in Hurst cited above, I consider that the reference to ‘until the Lessor restores the loss of amenity’ was strictly obiter dicta because, in that case, the application was brought some three months after the tenant had vacated the property,19 such that the application was out of time regardless of when the loss of amenity was restored. Further, none of Champion, Bourke or Gould turned on the fact that the application was not brought before amenity was restored. [35] Second, in my view, there is nothing in the reasoning of Muir JA in Underwood which would provide support for a conclusion that an application under s 94 must be brought before the loss of amenity is restored. If anything, there is dicta which may support a contrary conclusion. His Honour said the following:20 If it is the case that a tribunal has a discretion whether to order a reduction of rent under s 94, the better view is that the tribunal may refrain from making an order reducing the rent if it would be unjust to make such an order. For example, it may be unjust for an order to be made where an application has been made late or a lessor has been prevented by the conduct of the tenant from ascertaining facts and circumstances relevant to the determination of whether there should be a decrease in the rent. (emphasis added) [36] I am unable to discern from the reasons the meaning of an application being made ‘late’. On one interpretation, it may be a reference to an application being made after 19 See [22]. 20 At [30]. -- 10 of 16 -- 11 the cessation of the tenancy. On another, it may be a reference to an application being made after the circumstances contemplated by s 94 have ceased (and it is difficult to conceive of any other interpretations). Neither interpretation is consistent with a requirement that an application under s 94 must be commenced prior to the time that, relevantly, amenity of the subject premises is restored. [37] Third, in my view, s 94 has a beneficial operation which operates in favour of a tenant. This right or remedy is in addition to, and not in substitution for, a right or remedy the person would have apart from the RTRAA.21 Unlike s 419, s 94 does not include an express time limitation on the making of an application. Unlike s 419, a remedy under s 94 is not dependent upon a breach of the tenancy agreement. Section 94 may be relied upon in the event that one (or more) of the circumstances set out in the section occurs. In my view, the beneficial operation of s 94 would be significantly eroded if it were construed as imposing a limitation requiring the filing of an application prior to restoration of the amenity or standard of the premises. Such a limitation would require the preparation and filing of an application in circumstances where the ultimate duration of the decrease in amenity or standard may not be known at the time of the filing, such that the amount of the decrease in rent sought could not then be identified. A further difficulty would arise if, for example, the lessor advised the tenant that the duration of the loss of amenity would be, say, 14 days but the amenity was restored early, denying the tenant the opportunity of filing an application (as had been contemplated) within the 14 day period. In order to impose the limitation suggested in Hurst, I consider that the language of s 94, or the operation of the RTRAA as a whole, would need to clearly point to an interpretation that would restrict a tenant’s right to seek a remedy in that manner. In my respectful view, that interpretation is not justified by the language of s 94 or the broader operation of the RTRAA, particular have regard to the purpose served by s 94. In my view, upon the proper construction of s 94, an application under that provision may be brought s 94 may be filed after the amenity or standard of the premises has been restored, subject to it being filed during the term of the tenancy. [38] It follows from this analysis that the making of an order for a rent decrease may be assessed by reference to a past loss of amenity. If an order is sought under s 94, there will necessarily be a time lag between the filing of the application and the hearing of the application. In the present case the intervening period was more than five weeks. In my view, it was not the intent of Parliament that a tenant’s entitlement to a rent decrease in the event of, say, a temporary loss of amenity22 would be dependent upon the timing of the making of an order under s 94. The timing of the order will be dependent upon the listing of the application for hearing (including any adjournment of the hearing). In my view, even if s 94 does have a ‘prospective’ operation, the Tribunal may order a decrease in future rent based on a previous loss of amenity occurring during the course of the tenancy. [39] A possible question may arise as to whether the duration of a rent decrease may be limited by the period remaining before the tenancy agreement expires. However, this question does not arise in the present case because the period of rent decrease, assessed as compensation by the Adjudicator, was three weeks; and the MCD Application was filed almost two months prior to the expiry of the term of the tenancy 21 See RTRAA, s 4(1). 22 Cf Underwood, [26]. -- 11 of 16 -- 12 agreement (and, if it were otherwise relevant, the order of the Adjudicator was made three weeks and one day prior to the expiry of the tenancy agreement). [40] In my view, on the proper construction of s 94 of the RTRAA, the claim for a rent decrease was brought by Ms Friend within time. I find that Ground 2 has not been established by Mr Duncan. Ground 1 [41] Mr Duncan submits that a finding of a rent reduction ‘down to zero is effectively a finding of non-liveability’ and such a finding was not available on the evidence. [42] In my view, this contention only has relevance to that component of the amount ordered by the Adjudicator which relates to the reduction of $550.00 for the first week. As noted above, for the subsequent two weeks, the reduction was $200.00 per week, or approximately 36% of the weekly rent. I consider that such a reduction cannot sustain an argument that this amounted to a finding of ‘non-liveability’. [43] With respect to the reduction of $550.00, Mr Duncan relies upon two cases addressing the issue of ‘non-liveability’, Challands & Anor v Jackson (Challands)23 and Keith Bannister v David and Mariam Cheung.24 [44] The term ‘non-liveability’ is found in s 305(3) of the RTRAA in the context of the giving of a notice to leave by a tenant.25 Subsection 305(1) provides: The lessor may give a notice to leave the premises to the tenant because the premises— (a) have been destroyed, or made completely or partly unfit to live in, other than because of a breach of the agreement; or (b) no longer may be used lawfully as a residence; or (c) have been appropriated or acquired compulsorily by an authority. [45] The language of this provision is in analogous terms to the language adopted in s 94(1). In my view, whilst Challands provides some assistance in interpreting s 94(1), it does not provide the answer to the question at hand. In particular, s 305 does not include an analogue of s 94(2). Subsection 305(1) concerns the termination of a tenancy (noting that the heading to s 305 refers to ‘frustration’), whereas s 94 is of wider ambit and provides the tenant with a remedy (by way of a rent reduction) in additional circumstances (set out in s 94(2)), which circumstances may only be temporary. [46] The Adjudicator accepted that as a result of the (then incomplete) repair works, there was a smell of glue and chemicals and that there was a reasonable concern on behalf of Ms Friend and that it may have been appropriate ‘for some days’ for Ms Friend not to reside at the premises (and that a reduction of rent down to zero for one week was appropriate).26 23 [2014] QCATA 330 (Dr JR Forbes, Member). 24 [2014] NSWCATCD 105. 25 The term also appears in s 306 (moveable dwelling premises) and in ss 284 and 285 in the context of the giving of a notice to leave by a lessor. 26 See T-20 lines 1-5, 32-40. -- 12 of 16 -- 13 [47] Mr Duncan references an email from Ms Friend dated 21 December 2021 and, in particular the statement by Ms Friend that ‘[t]he headaches and my face swelling after 10 mins of being in their says otherwise, same with my son, his girlfriend, maintenance guys in the building and a friend’. [48] However, Ms Friend also said the following during the course of the hearing:27 So I was, obviously, quite happy to go home. I wanted to. It was Christmas time. It’s my busiest time of the year at work. So I was quite happy, but once we got in there, they had dried out the concrete slab that’s in the photos, and they had left the glue on top of the floor. So they put cardboard on top of the glue to stop the transfer – which is in one of the emails there – to stop the transfer of the glue onto the carpet, and I had no idea. When I walked in there, after five minutes I had headaches, I was nearly vomiting, I was shaking. I have bad allergies anyway, and the smell of the glue – if you imagine, you know, all the dehumidifiers and fans and that has blown the smell of the glue through all my clothes, my furniture, the carpet. They vacuumed the carpet. They didn’t clean it. It still smells like glue on the carpet. And just – it was unliveable. It was only the bedrooms and the bathrooms that didn’t have glue all over it. (emphasis added) [49] Mr Duncan refers to the fact that none of the people referred to in paragraph 47 above supplied any affidavits attesting to such an extreme reaction nor were any medical records produced, and also refers to an absence of measurements of air quality or moisture levels. Mr Duncan further complains that there was an absence of evidence that Ms Friend was not living in the dwelling throughout the relevant period. Further, Mr Duncan asserted that there was a need for ‘compelling evidence with a high standard of proof’ which should be judged objectively. On proper analysis, I consider that Mr Duncan’s complaints boil down to an argument as to the sufficiency of the evidence to sustain the assessment of the rental decrease (insofar as the first week of compensation is concerned). I consider this to be a factual question and one involving the exercise of a judgment by the Adjudicator. In my view: (a) Ground 1 does not raise a question of general importance upon a decision of the Appeal Tribunal would be to the public advantage; (b) having regard to the matters addressed above, including the evidence identified in paragraphs 47 and 48 above, Mr Duncan has not established that there is a reasonable argument that the Decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error. [50] I find refuse leave to appeal in relation to Ground 1. Ground 3 [51] Mr Duncan contends that the Adjudicator erred in awarding compensation pursuant to s 419 of the RTRAA because Ms Friend did not establish a breach of that provision. For the above reasons, I consider that the Decision was supported by s 94 of the RTRAA and it is unnecessary to decide Ground 3. For that reason and that Ground 3 does not raise a question of general importance upon a decision of the Appeal Tribunal 27 T1-20 lines 13-23. -- 13 of 16 -- 14 would be to the public advantage, I refuse leave to appeal in relation to Ground 3. However, for completeness, I make the following observations. [52] Section 419 of the RTRAA provides: (1) This section applies if any of the following claim there has been a breach of a term of a residential tenancy agreement or a rooming accommodation agreement— (a) a lessor or tenant under the residential tenancy agreement; (b) a provider or resident under the rooming accommodation agreement. (2) The lessor or tenant, or provider or resident, may apply to a tribunal for an order about the breach. (3) The application must be made within 6 months after the lessor or tenant, or provider or resident, becomes aware of the breach. (4) For a residential tenancy, the application may be made— (a) during the term, or after the end, of the agreement; and (b) whether or not an application for termination, or a termination order, has been made about the agreement; and (c) whether or not a rental bond for the agreement is held by the authority when the application is made. (5) For rooming accommodation, the application may be made— (a) during the term of the agreement or after the agreement ends; and (b) whether or not a rental bond for the agreement is held by the authority when the application is made. [53] In the present case, the MCD Application was filed within a period of six months after the water leak was detected and the repair works commenced. This was within the period required by s 419(3). [54] Section 419 also requires that there be a breach of a term of, relevantly, a residential tenancy agreement (s 419(1)). Mr Duncan submits, and I accept, that Ms Friend needed to establish a breach of an obligation under s 185(3) of the RTRAA. That subsection provides: While the tenancy continues, the lessor— (a) must maintain the premises in a way that the premises remain fit for the tenant to live in; and (b) must maintain the premises and inclusions in good repair; and (c) must ensure any law dealing with issues about the health or safety of persons using or entering the premises is complied with; and (d) if the premises include a common area—must keep the area clean; and (e) must ensure the premises and inclusions otherwise comply with any prescribed minimum housing standards applying to the premises or inclusions. Note— -- 14 of 16 -- 15 See section 217 for the tenant’s obligations to notify the lessor about damage to premises and the need for repairs. [55] In McKinnon v Kirdy,28 Mullins J (as she then was) said the following in relation to predecessor legislation to the RTRAA, which observations I consider apposite to a consideration of s 185 of the RTRAA:29 [64] In the absence of an express covenant or statutory provision requiring a landlord to repair, a landlord was generally under no obligation to do so: Cockburn v Smith [1924] 2 KB 119, 128. Under the Residential Tenancies Act 1975 enforcement of the implied contractual obligation on the landlord to maintain the premises in good tenantable repair and fit for human habitation depended on the tenant having given prior notice in sufficient time to allow the landlord to remedy the defects: O’Brien v Robinson [1973] AC 912, 929-930; Austin v Bonney [1999] 1 Qd R 114, 118, 124, 130-131. [65] The Residential Tenancies Act 1975 was replaced by the RTA which continues the regime of imposing contractual obligations on the part of the landlord in relation to fitness and repair of the premises, but formalises as contractual obligations the requirement for the tenant to give notice of damage to the premises. [56] On my reading of the Adjudicator’s reasons, the Adjudicator made an express finding of ‘loss of amenity’ and assessed compensation by reference to a rent reduction, yet proceeded to make the order for a rent reduction by way of compensation pursuant to s 419 of the RTRAA. However, in doing so, it is my respectful view that the Adjudicator did not provide reasons which would sustain an award of compensation under s 419. The Adjudicator did not make an express finding of a breach of the tenancy agreement by Mr Duncan, nor articulate reasons to support such a conclusion. [57] In these circumstances, had I concluded that the Decision was not justified under s 94, I would have been minded to grant leave to appeal in relation to Ground 3, to allow the appeal, and to return the matter to the Tribunal for reconsideration. The water bill reduction [58] As part of his submissions in respect of Ground 3, Mr Duncan submitted: On 10 February 2022, in an email exchange between the agent and the tenant, an agreement was almost reached in relation to offers of compensation. The lessor agreed to pay $550 plus $100 for electricity costs and had reduced the outstanding water usage bill by $34.78 to the sum payable of $100 even. However, the tenant declined the offer on the basis of only wanting to pay $40 for water usage for billing cycle with no evidence as to how this figure was calculated. The Water usage owing was in the sum of $134.78 for 31kL of water at a daily usage rate of $4.348 per kL. (Annex 1, LJHR81) The lessor had already reduced this amount owning by $34.78 which accounts for approx. 8kL. There is no reason to suspect the water leak at issue was caused by 8000 Litres of water leaking from a dishwater which went unnoticed. 28 [2003] QSC 302. 29 At [64]-[65]. -- 15 of 16 -- 16 The tenant did not act reasonably in the circumstances and rather than demonstrate why the water amount owing should be reduced to $40 which accounts for only approx. 10kL was usage from a total of 31kL, instead opted to apply to QCAT. Demanding the lessor pay for 21,000 litres water usage for a billing cycle is not compensation. 21,000L of water could potentially fill the apartment from floor to ceiling. The Member awarded a reduction in water usage down to $80.00 which accounts for 18.4kL of 31kL usage, effectively making the lessor responsible for 13,000L of water for a billing period, without any evidence as to how this was determined. This decision is manifestly excessive in the circumstances. [59] As I understand the position: (a) Ms Friend sought a reduction of the water bill (due to the water leak) down to $40.00; (b) Mr Duncan had previously agreed to accept a reduced amount of $100.00; and (c) the Adjudicator made a finding that the appropriate amount of the reduction was $80.00 (such that Mr Duncan appears to be asserting that this allowance was ‘manifestly excessive’ to the tune of $20.00). [60] I consider that the de minimis amount in dispute ($20.00) would, of itself, justify the refusal of a grant of leave to appeal in relation to this argument. Regardless, I consider that the argument raised is a factual one and the dispute involved water usage from an undetected leak, which was not susceptible to calculation with any precision. Given the competing positions of the parties and the nature of the claim, I consider that the amount arrived at by the Adjudicator has not been demonstrated by Mr Duncan, on any sufficient basis, to be ‘manifestly excessive’. Leave to appeal is refused in relation to this argument. Orders [61] For the reasons set out above, I consider that the following orders should be made: 1. Leave to appeal is granted in relation to Ground 2 of the Application for leave to appeal or appeal. 2. Leave to appeal is otherwise refused. 3. The appeal is dismissed. -- 16 of 16 --