Esposito v Hills [2017] QCATA 126

CITATION: Esposito v Hills [2017] QCATA 126 PARTIES: Roxanne Esposito (Appellant) v Nar’dine Jane Hills (Respondent) APPLICATION NUMBER: APL242-17 MATTER TYPE: Appeals HEARING DATE: 13 November 2017 HEARD AT: Southport DECISION OF: Member Howe DELIVERED ON: 23 November 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 11 July 2017 is set aside. 4. The matter is returned to the tribunal for reconsideration with the hearing of such additional evidence as deemed necessary by the tribunal. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where tenant lived adjacent to another building being renovated – where compensation claimed for loss of “enjoyment” – where the tribunal apparently decided the matter on basis of loss of quiet enjoyment – whether claim one of loss of amenity – where failure to consider lessor contribution to tenant’s loss of quiet enjoyment Queensland Civil and Administration Tribunal Act 2009 (Qld), s 142(3)(a)(i) Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 52, s 94, s 183, s 420(1)(e) Pickering v McArthur [2005] QCA 294 -- 1 of 6 -- 2 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION Ms Hills took up a tenancy of a unit at Southport on 12 December 2016. She vacated it on 10 July 2017. Shortly after viewing the unit in anticipation of renting it, and before she signed a residential tenancy agreement, there was an explosion in an adjacent building which damaged a number of units in the complex where Ms Hills’ unit was. Workmen started doing repair work at the adjacent property shortly after Ms Hills moved in and she found their presence and the noise they made disquieting. The noise woke her at about 7am every morning and that was troublesome. Ms Hills said she was a chef. The tenancy was for 6 months and Ms Hills was given notice to leave to be effective as at or about the end of the 6 months. Prior to vacating Ms Hills made an application to the tribunal seeking an extension of time of the tenancy to 12 months and also seeking $1,800 compensation for disruption by tradesmen constantly entering the building to remedy damage caused by the explosion in the building next door. At hearing the tribunal took evidence from both Ms Hills and Ms Esposito, the lessor’s agent. The tribunal ordered the agent pay Ms Hills $1,800 compensation on the basis the tenant had suffered loss of “enjoyment of sleep and other enjoyments”.1 No order was made concerning the claim for an extension of time of the tenancy agreement. The matter of an extension of time was not pursued at hearing. The tenant had vacated by the date of hearing. Ms Esposito has sought leave to appeal the decision. Given this is an appeal from a decision made in the tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must be obtained before an appeal is heard.2 Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and there is a reasonable argument that there is an error to be corrected.3 1 Transcript (T)1-27 Line 16. 2 QCAT Act, s 142(3)(a)(i). 3 Pickering v McArthur [2005] QCA 294, [3]. -- 2 of 6 -- 3 Ms Esposito filed her application for leave to appeal on 21 July 2017 and her grounds of appeal appear threefold: a) Ground 1: That the tribunal failed to take into account Ms Hills’s failure to make a complaint in writing to allow her to refer the matter of a noise complaint to the body corporate. b) Ground 2: The tribunal erred in calculating the compensable period to award compensation as the whole term of the tenancy. c) Ground 3: The tribunal failed to take into account that Ms Esposito had no control over other residents in the complex. Grounds 1 and 2 The Minor Civil Dispute jurisdiction is an exceedingly difficult one where parties are expected to represent themselves. This often means evidence and submissions a legal representative might see as basic and necessary are not presented to the tribunal. The tribunal often adopts an inquisitorial role in actively seeking information from parties, but even that process does not ensure all relevant material is placed before the tribunal. Ms Esposito submits that Ms Hills made no complaint in writing to allow her to refer the complaint to the body corporate. But the matter was not raised by Ms Esposito at hearing. Ms Esposito was asked if she wanted to say anything about the claim that the tenant had suffered “loss of enjoyment” but her response varied from having nothing to say about it4 to saying she thought $1,800 was too much to be awarded5 to agreeing Ms Hills had suffered some “loss of enjoyment”.6 Nor did Ms Esposito challenge the tenant’s assertion that “it took almost 6 months for it to be finalised”7; nor did she comment on the statement from the tenant that she had to tolerate noise from the workmen next door “and still ongoing with the person next door.”8 Admittedly the transcript of the proceedings shows the tenant responded with long sometimes irrelevant statements rather than clear answers to questions asked by the tribunal, but neither did Ms Esposito suggest any shorter period that that claimed by the tenant for her “loss of enjoyment”. Ms Esposito has filed submissions in the application for leave to appeal. In large part those submissions seek to adduce fresh evidence about these things which she didn’t mention at hearing. There has been no application 4 T1-23 Line 5. 5 Ibid, Line 42. 6 T1-24 Line 9. 7 T1-3 Line 36. 8 T1-10 Line 30. -- 3 of 6 -- 4 to adduce fresh evidence in the appeal and it is not appropriate that it be considered for the first time now in the application for leave to appeal. The only evidence before the tribunal as to the term of the “loss of enjoyment” was that given by Ms Hills the tenant. The tribunal was entitled to rely on that. There was no evidence about a failure to complain in writing. Neither of these grounds of appeal can succeed. Ground 3 Ms Esposito also submits the tribunal failed to take into account that Ms Esposito had no control over other residents in the complex so the lessor could not prevent any “loss of enjoyment” of the tenancy by the tenant. It is not clear upon what ground the tribunal determined the tenant was entitled to compensation. That Ms Esposito agreed the tenant had suffered “loss of enjoyment” as she put it (as did the tribunal) did not justify an order for compensation in the amount awarded of itself. There were two possible bases upon which an amount could be awarded the tenant in the circumstances; loss of quiet enjoyment or substantial loss of amenity. Loss of Quiet Enjoyment By s 183(1) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the Act), the lessor is required to take reasonable steps to ensure the tenant has quiet enjoyment of premises. By s 183(2) the lessor or the agent is obliged not to interfere with the reasonable peace, comfort or privacy of the tenant in using the premises. Section 52 of the Act provides that if a duty is imposed on or an entitlement is given to a lessor or tenant, the duty or entitlement is taken to be included as a term of the residential tenancy agreement. The entitlement to quiet enjoyment and the duty not to interfere with the reasonable peace, comfort or privacy of the tenant as provided for in s 183 therefore becomes a term of a tenancy agreement. By s 420(1)(e) of the Act, if an application about a breach of a residential tenancy agreement is made to the tribunal the tribunal may make an order for compensation. Substantial Loss of Amenity By s 94(2)(b) of the Act, if the amenity or standard of the premises decreases substantially other than because of malicious damage caused by the tenant, then the rent payable under the agreement decreases accordingly or to the extent stated in the order of the tribunal. For an order for loss of amenity it is necessary that the loss of amenity or standard of the premises is a substantial decrease. -- 4 of 6 -- 5 It is unclear from the transcript whether the tribunal’s determination was based on loss of quiet enjoyment or substantial loss of amenity. The tribunal said what was to be decided was “whether there was a loss of enjoyment or not, whether it would warrant such a rent reduction.”9 Use of the term rent reduction suggests loss of amenity. Then later the tribunal said when giving Ms Esposito an opportunity to address the tribunal: …the primary reason as to why … applicant’s … seeking compensation of $1,800 for rent reduction is a loss of enjoyment. So the … crux of the issue is, is there any response … with regards to the loss of enjoyment?10 Ms Esposito replied to that “I don’t think she should be compensated that much – amount of money. Yes, there was loss of enjoyment but again … that’s out of my hands….” The tribunal failed to make clear upon what basis it determined the tenant was entitled to an award of $1,800, whether it was pursuant to s 94 loss of amenity or whether s 183 loss of quiet enjoyment. If under s1 83 the tribunal failed to consider whether the lessor failed to take steps to ensure the tenant had quiet enjoyment of the premises, and did not consider whether the lessor had interfered with the reasonable peace, comfort or privacy of the tenant in using the premises. If under s 94 the tribunal did not consider whether the loss of amenity was substantial. The following statement of the tribunal in its reasons for decision suggests on balance the basis of award was loss of quiet enjoyment: Yes, it was outside their ability to actually do anything about the noise level, however, there is still an obligation for the landlord to ensure that any of its residents is (sic) actually entitled to enjoyment of their own residence as such, and a failure to actually provide such an enjoyment does actually warrant … factors such as rent reduction as a way to actually alleviate a person’s loss of enjoyment….11 There was no consideration of any loss of amenity in this finding, other than again the mention of a rent reduction. The obligation on the lessor in respect of a tenant’s right to quiet enjoyment is not to ensure the tenant has quiet enjoyment but to take reasonable steps to ensure this the case, and also not to interfere with the peace, comfort or privacy of the tenant in using the premises. In this matter the lessor would, one imagines, have had little or no power to limit or control the loss of quiet 9 T1-17 Line 29. 10 T1-23 Line 36-39. 11 T1-27 Line 29-34. -- 5 of 6 -- 6 enjoyment experienced by the tenant, given most of the noise and other matters of complaint concerned the workmen working in an entirely different building. Indeed that is the basis of this ground of this appeal. There was some evidence about an immediate neighbour causing noise, but the matter was not explored by the tribunal. Having said that, it should be added that the evidence of the tenant was disjointed and fragmented and not conducive to clear evidence gathering. However, it is clear the necessary precursors to liability to pay compensation for loss of quiet enjoyment were not considered by the tribunal. Nor was there evidence led about such. The evidence predominantly focused on the tenant’s subjective loss of quiet enjoyment. That loss of quiet enjoyment was not meaningfully linked to any conduct on the part of the lessor or agent, although the tenant did complain that the agent knew about the damage in the adjacent building before the tenant signed the tenancy agreement and did not advise her about it. The agent denied knowing about the explosion for a number of days after it happened which was after the tenant was approved to take the unit. The tribunal fell into error in concluding that the tenant was entitled to compensation for loss of quiet enjoyment without identifying a failure on the part of the lessor or agent as required by s 183(1) or s 183(2). This was an error of law. If indeed the tribunal decided the matter on the basis of s 94, again there was an error of law in failing to make a finding of substantial loss of amenity. Substantial injustice has been done to Ms Esposito in ordering her to pay the compensation claimed. Leave to appeal should be granted and the appeal allowed. The decision of 11 July 2017 should be set aside and the matter returned to the tribunal for reconsideration with the hearing of such additional evidence as deemed necessary by the tribunal. -- 6 of 6 --