Carney & Ors v Home Rentals Queensland [2020] QCATA 119

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Carney & Ors v Home Rentals Queensland [2020] QCATA 119 PARTIES: DALE CARNEY (first applicant/appellant) EMILY MATTHEWS (second applicant/appellant) NERIDA MATTHEWS (third applicant/appellant) v HOME RENTALS QUEENSLAND (respondent) APPLICATION NO/S: APL202-19 ORIGINATING APPLICATION NO/S: MCDT139-19 Cleveland MATTER TYPE: Appeals DELIVERED ON: 4 August 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: Leave to appeal refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where tenants entered the property but were unhappy with its condition – where they left the premises early by agreement with the lessor – where subsequently applied to the tribunal for compensation by way of rent reduction – where the tribunal refused the claim for rent reduction on the basis that no further rent was being paid to be reduced – whether the Tribunal should have considered a general claim for compensation Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 94, s 420, s 429 Gould v Mazheiko & Gill [2020] QCATA 10 Pickering v McArthur [2005] QCA 294 REPRESENTATION: Applicants: Self-represented -- 1 of 5 -- 2 Respondent: Self-represented by D Dekker APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION The applicants leased a residential property through the respondent agents. It was for a fixed term of 12 months commencing 4 February 2019 and ending 3 February 2020. The rent was $530 per week and the bond $2,120. Shortly after entry the tenants complained about the smell in the carpet. The carpet also had dog hair on it. The carpet had been cleaned by the previous tenants when they exited. The lessor had the carpets cleaned again but the smell returned over the following weeks. The carpet cleaning managed to remove most of the dog hair. There was a storm which caused some damage to the house and following that some of the carpet was replaced but the tenants had other complaints. The lessor applied to terminate the tenancy. Before that application was heard the parties agreed that the tenants would be released from the tenancy. The parties signed a termination agreement and the tenants vacated on 29 April 2019. The tenants did not clean the carpet or have pest control carried out when they vacated. The application for termination was dismissed. Subsequently on 30 May 2019 the tenants applied to the Tribunal seeking orders for “compensation for rent paid on a property” but then in the particulars to the claim that they were seeking “rent reduction and compensation”. The application was heard by an Adjudicator who dismissed the application on the basis it was a claim for loss of amenity under s 94 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’) and given the tenants had vacated before filing the application, no reduction in rent was possible. [8] The applicants seek leave to appeal that decision. Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.1 [9] Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.2 There appears to be only one ground of appeal relied on, namely that the claim should have been considered as a claim for compensation under other provisions of the RTRAA such as s 420 providing a general claim for compensation rather than s 94 which provides for a claim for loss of amenity. The legislation 94 Rent decreases 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294. -- 2 of 5 -- 3 (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— … (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 420 Orders about breach of agreements (1) If an application about a breach of a residential tenancy agreement or a rooming accommodation agreement is made to a tribunal, the tribunal may make any 1 or more of the following orders— … 429 General disputes between lessors and tenants or providers and residents (1) If there is a dispute between the lessor and tenant, or provider and resident, about an agreement, either party may apply to a tribunal for an order, and the tribunal may make any order it considers appropriate, to resolve the dispute. The application in the minor civil dispute proceedings At page 3 of the application for minor civil dispute – residential tenancy dispute the applicants are asked what order they want the tribunal to make and what provision of the RTRAA they rely upon. Here the applicants referred to s 429 and said the order they sought was “compensation for rent paid on property.” Below that in describing the claim for compensation they wrote “rent decrease $1752.58.” On page 4 of the application they were asked to set out the reasons for seeking the order and there they wrote: We are asking for rent reduction and compensation for breach of rental tenancy. This was due to the real estate’s lack of repair and maintenance on the property which over time has compromised the livability of parts of the property. During the rental tenancy we claimed a reduction in rent due to the uncleanliness of the property when we first moved in. 75% of rent first 11 days due to carpets not -- 3 of 5 -- 4 been cleaned. We also claimed a reduction in rent for the month and a half that we were unable to use parts of the property due to storm damage. This was ignored by the real estate and has now turned into a compensation claim as we have since ended the tenancy. In an annexure to the application they say they want “compensation of our rent … as we were unable to completely use the property through our tenancy.” Amongst the documentation enclosed with the application was a copy of an email forwarded by the first applicant to the real estate agents on 2 April 2019. In that email, which is entitled “rent decrease”, they set out a number of matters to be addressed such as the repair or replacement of carpet, the cleaning and repair of gutters, mould removal and repair to walls and ceilings of damaged rooms. They go on to say that because of these things they could not fully utilise the premises for 75% of the first 11 days and 40% for the 18 days after that and ongoing. They then say “as such we seek a rent decrease in the amount of $1,328.66 in accordance with s 94 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). Please provide us in writing within one week of the approved rent decrease.” Consideration The paperwork filed by the applicants clearly raised as the significant issue for determination a claim for a rent decrease pursuant to s 94 of the RTRAA. Besides specifically referring to s 94 in their supporting material they also used such words as “livability” and “rent reduction” in describing their claim. There are no pleadings in the tribunal. The issues for determination must be found in the statements of evidence and other material filed, particularly where the matter is brought by self-represented parties. At the hearing the first applicant said the applicants had contacted the Residential Tenancies Authority about the breaches and: We were then told because of the condition of the house when we moved in and then after the storm and the damage done to the house, that we were within our rights to ask for a rent decrease, so we did.3 There was no mention made of a general claim for compensation pursuant to s 420 of the RTRAA at the hearing. It is quite clear that the claim brought was for loss of amenity pursuant to s 94 of the RTRAA. The Adjudicator informed them and based his decision on the fact that the tenancy had terminated by mutual consent prior to the application for loss of amenity under s 94 being made. Retrospective claims for rent reduction after a tenancy ends cannot be brought.4 In hindsight the applicants have now decided, with this application for leave to appeal, to base their claim on the general compensation provision s 420. A general claim for compensation formed no part of their initial application. There is no basis to complain about error on the part of the tribunal below. There was none. Furthermore, a claim for general compensation would undoubtedly have been refused if made given the parties apparently reached consensus about that. On 11 April 2019 3 Transcript Page 1-7 Lines 39-42. 4 Gould v Mazheiko & Gill [2020] QCATA 10, [18]. -- 4 of 5 -- 5 the applicants submitted a written agreement terminating the tenancy for acceptance by the lessor. In that document compensation by way of rent reduction of $1,328.66 was sought together with relocation and moving expenses. That was rejected by the lessor. Then on 16 April 2019 another written agreement was submitted by the applicants with no claim for compensation or rent reduction included. This was accepted by the lessor and the parties signed that version of the agreement between them. It is quite clear that the lessor was prepared to release the tenants from the fixed term tenancy but only on the basis that the lessor would not be paying any compensation or rent reduction. The agreement between the parties would undoubtedly have precluded any success in a claim for compensation pursuant to s 420. The applicants have no prospect of success in an appeal. Leave to appeal is refused. -- 5 of 5 --