Baini v Flett [2016] QCATA 91

CITATION: Baini v Flett [2016] QCATA 91 PARTIES: John Baini (Applicant/Appellant) v Ronnie Flett Annie Flett (Respondents) APPLICATION NUMBER: APL456-15 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 13 April 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 8 October 2015 is set aside. 4. Holland Park MCDT220/15, to the extent it is an application for abatement of rent, is returned to the tribunal for rehearing. 5. John Baini may file and serve any evidence and/or submissions in response to the application for abatement of rent by 4:00pm on 4 May 2016. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where application for return of bond – where application for compensation filed 2 days before hearing of bond application – where respondent did not object to compensation claim proceeding – where tribunal ordered abatement of rent – whether tribunal erred in consideration of abatement of rent claim - whether grounds for leave to appeal -- 1 of 4 -- 2 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 87, s 94, s 214, s 416, s 419 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142 Pickering v McArthur [2005] QCA 294 Masinello v Parker (No 1) [2013] QCATA 324 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 (Qld) (QCAT Act). REASONS FOR DECISION [1] John Baini owns a rental property. He engaged McGrath Property Management to manage the property. Ronnie and Annie Flett were his tenants. [2] At the end of their tenancy, the Fletts filed an application for the return of their bond. Two days before that hearing, the Fletts also filed an application for compensation. The registry listed the second application for hearing on the same day as the bond application. McGrath objected to that course of action. The registry told McGrath that it should take up its objection at the hearing. [3] McGrath did not object to the tribunal considering the second application at the hearing. The tribunal heard and determined it, ordering that McGrath pay the Fletts $2,000 compensation. [4] Mr Baini wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [5] Mr Baini says that, by hearing the compensation matter despite objection, McGrath was unable to produce evidence about those issues. He says that the Fletts did not make a request for conciliation as required under s 416 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). He says that the Fletts’ request for compensation was out of time. He says that the evidence does not support a finding of a loss of amenity. 1 QCAT Act, s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. -- 2 of 4 -- 3 Should the tribunal have heard the compensation claim? [6] I agree that a period of two days between receipt of a claim and the hearing of the claim is usually not enough to ensure procedural fairness. I accept that McGrath properly foreshadowed an objection to that claim being heard. [7] Unfortunately, even though the registry told McGrath that it would have to raise this issue with the tribunal, McGrath failed to do so. McGrath had two opportunities to object to the tribunal hearing the second claim. The tribunal referred to “the second matter” when establishing the subject of the hearing3. McGrath did not object to the tribunal hearing the claim. Having disposed of the bond claim (and allowing late evidence from McGrath4), the tribunal turned its attention to the second claim.5 Again, McGrath did not object to the tribunal hearing the claim. [8] In the circumstances, where McGrath knew it had the obligation to object to the tribunal hearing the claim and it failed to do so, there was no error in the tribunal considering the issue. Did the Fletts comply with s 416? [9] The application for compensation refers to a notice of unresolved dispute. It is the same notice relied upon for the Fletts’ application about the bond. The substance of the request for conciliation, and the extent of conciliation, is not before the tribunal. Again, McGrath did not object to the tribunal’s jurisdiction. The tribunal had no reason to suspect that the compensation claim was not subject to a conciliation request (if, in fact, that was the case). The tribunal was not in error in hearing the application. Was the Fletts’ application for compensation out of time? [10] Mr Baini correctly points out that an application for compensation for breach of a tenancy must be made within six months of the party becoming aware of the breach.6 He is also correct in his submission that many of the Fletts’ complaints arose more than six months before they lodged a conciliation request. [11] If the tribunal awarded compensation for breach of the tenancy agreement then I agree that the tribunal was in error. It is clear from the tribunal’s reasons, however, that the basis for compensation was s94 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).7 Section 94 states that, if the amenity or the standard of the premises decreases substantially, rent abates. A claim for abatement of rent is not subject to the six month time limit.8 3 Transcript page 1-2, lines 24 - 25 4 Transcript page 1-3 5 Transcript page 1-5, lines 13 - 14 6 Residential Tenancies and Rooming Accommodation Act s 419(3) 7 See Transcript page 1-18, lines 27 - 28 8 Masinello v Parker (No 1) [2013] QCATA 324 -- 3 of 4 -- 4 [12] The tribunal decided to allow an abatement of rent of $50 per week for 10 months. I am satisfied that the tribunal was in error in its decision to compensate the Fletts on a number of grounds. [13] Firstly, the tribunal noted that an award of $2,000 was less than 10% of the value of the home.9 That is not the appropriate test and, even if it was, I can find no evidence to support that finding. [14] The appropriate test is to reduce the rent by the extent to which the amenity was diminished. I do not know what the weekly rent was because no one submitted a copy of the tenancy agreement and no one gave any direct evidence of the weekly rent. Therefore, the tribunal had no idea from what starting point it should consider a rental reduction. It is understandable, but not appropriate, that the tribunal did not, therefore, assess the abatement of rent as a proportion of the rent payable. [15] I do note that, contrary to s 87 of the Residential Tenancies and Rooming Accommodation Act, the Fletts paid six months’ rent in advance. [16] Secondly, the tribunal appears to have awarded compensation for matters that existed at the time the Fletts took possession of the premises. For example, the glass in the door was never safety glass. The Fletts cannot, therefore, say the amenity diminished. [17] Thirdly, it is unclear how these issues can amount to a substantial diminution of the amenity of the premises. Even though the Fletts complained about these matters, they did not take the step of issuing a notice to remedy breach. They did not fix the roof leak themselves, as they arguably were entitled to do if it was serious.10 They did not fix the light in the downstairs bathroom, as they were entitled to do if it was, in fact, dangerous.11 They did not attend to the mould, as they were entitled to do if was a fault that made the premises dangerous12 or likely to injure them, or likely to unduly inconvenience them.13 Instead, they decided to stay in the premises until the end of their tenancy. [18] Leave to appeal should be granted and the appeal allowed. The issue of abatement of rent should be returned to the tribunal for rehearing. Given that the issue will be re-ventilated, and there is some evidence obviously missing, Mr Baini should be given the opportunity to file and serve material relating to this issue. 9 Transcript page 1-21, line 42 10 Residential Tenancies and Rooming Accommodation Act, s 214(c) 11 Residential Tenancies and Rooming Accommodation Act, s 214(e) 12 Residential Tenancies and Rooming Accommodation Act, s 214(j) 13 Residential Tenancies and Rooming Accommodation Act, s 214(k) -- 4 of 4 --