Deane & Vassella v DSSWR Pty Ltd t/a Belle Property Wilston [2015] QCAT 120

CITATION: Deane & Vassella v DSSWR Pty Ltd t/a Belle Property Wilston [2015] QCAT 120 PARTIES: Andrew Deane Annabel Vassella (Applicant) v DSSWR Pty Ltd t/as Belle Property Wilston (Respondent) APPLICATION NUMBER: MCDT3056-14 MATTER TYPE: Residential tenancy matters HEARING DATE: 25 February 2015 HEARD AT: Brisbane DECISION OF: Member Favell DELIVERED ON: 20 April 2015 DELIVERED AT: Brisbane ORDERS MADE: The application is dismissed. CATCHWORDS: Where application for rental compensation- whether application was made in time – whether Tribunal had jurisdiction to make orders sought – whether breach of the Residential Tenancy agreement Residential Tenancies and Rooming Accommodation Act 2008 ss 185, 220, 417, 419, 420, 421 Fine v Geier [2003] QSC 073 APPEARANCES and REPRESENTATION (if any): APPLICANT: Andrew Dean and Annabel Vassella RESPONDENT: Rebecca Harris REASONS FOR DECISION [1] The applicants were tenants residing at 59 Hilda Street, Alderley until 11 June 2014. -- 1 of 6 -- 2 [2] Their tenancy commenced on 19 April 2013 under a general tenancy agreement. The rental was $980.00 per week. Under the general tenancy agreement the fixed term of 14 months was to end on 18 June 2014. [3] On that day the applicants made a dispute resolution request. In the request the dispute was noted to be about ‘rental compensation’. [4] On 26 June 2014 the Residential Tenancies Authority provided a notice of unresolved dispute which indicated that the nature of the dispute made it unsuitable for the dispute resolution process and advised the applicants could choose to have the matter heard by QCAT within the time limits in the legislation. [5] On 20 December 2014 the applicants applied in the Minor Civil Dispute division of QCAT under section 420 of the Residential Tenancies and Rooming Accommodation Act 2008 (Act) seeking an order that the landlord pay them rental compensation for not providing the services advertised and reasonable expected to come with the accommodation. Namely non operational air-conditioning, non operational alarm system, broken and unsafe blinds, a narrow stairwell that was unable to fit many of our furniture items, a narrow staircase that also caused damage to our mattress plus generally unsafe and unhygienic conditions which we were forced to live in due to the negligence of the owner and agent. [6] The amount sought is $14,700.00. I was told by the applicants that that amount was calculated at 25% of the rent paid. [7] On 25 April 2013 the applicants completed an entry condition report in which it was noted that there were marked corners of walls, dirty or dusty venetians, stained grouting, faulty gas burners, damage venetians, a cracked shower soap holder, marks on built-ins, discoloured toilet, and a deadlock which was difficult to use.1 [8] On 19 April 2013 the applicants had complained by email of what they called poor cleanliness of the house and the agent agreed to have the carpets cleaned and pest control completed. On 2 May 2013 the applicants complained that an interior stairwell was too narrow and complained of what they called ‘faulty and unsafe blinds’. [9] On 14 May 2013 they found that ‘the alarm system was not operational’ and when they tried to organise a basic alarm line to be connected they were advised by a contractor that the alarm panel needed to be upgraded to utilise the alarm and have it monitored. [10] On 25 December 2013 the applicants complained that the air-conditioning was faulty. On 20 January 2014 the applicants gave a notice to remedy breach in respect of the ‘air-conditioning, railings and palings, smoke alarms and unsafe blinds’. 1 Exhibit 2. -- 2 of 6 -- 3 [11] Attempts were made to address the complaints about the air-conditioning however the complaints about it continued until 2 June 2014. The respondent contends that the air-conditioning was fixed and that some of the difficulties associated with the air-conditioning were because the applicants were incorrectly operating the system in that they had the temperature turned too low. [12] From January through to the end of May there are also complaints made about possums and vermin. [13] It appears from photographs provided from the air-conditioning contractor that the ducting had come away and vermin were running through the ducting and their faecal matter was dropping from the vents onto the floors. That seems entirely consistent with a photograph of a possum staring through an air-conditioning vent and some photographs of faecal matter taken from an area behind the fridge (obviously after the fridge had been moved). There were also some other marks in other areas of the house. [14] Some photographs show defective blinds. [15] Section 420 of the Act sets out the orders a tribunal can make if an application about a breach of residential tenancy agreement is made to the tribunal. One of the orders includes an order for compensation. [16] Section 421 sets out the matters to which the tribunal must have regard for orders of compensation. Those matters include having regard to rent required to be paid but not paid. [17] Section 419 applies if a lessor or tenant under a residential tenancy agreement claims that there has been a breach of a term of the agreement. The section allows the tenant to apply to the tribunal for an order about the breach but the application must be made within 6 months after the lessor or tenant becomes aware of the breach. [18] During the hearing I was told by the applicants that their rental of the premises was considered by them to be a ‘corporate rental’. That is not a term that is used in the residential tenancy agreement. I was told that they expected a certain standard from a “corporate rental”. It is clear that the applicants did not consider the rental to be up to that standard. [19] It is also clear from the evidence that there were matters that needed to be attended to. A question arises whether there was a breach of the tenancy agreement necessary for orders to be made under section 220. [20] There is also the question of whether the claim was made within the relevant limitation period. -- 3 of 6 -- 4 [21] There is a 6 month time limit to bring claims for compensation under the Act.2 [22] Section 417 of the Act applies if an application about an issue may be made to the tribunal by the lessor under a residential tenancy agreement and under a provision of the Act and the question whether the application has been made is relevant to an issue. A reference in the provision to the making of an application about the dispute issue includes a reference to the making of a dispute resolution request to the authority about the dispute issue.3 [23] Section 185 of the Act provides for the lessor’s obligation generally and to the general standard of the premises. [24] At the start of the tenancy the lessor must ensure the premises and the inclusions are clean, fit for the tenant to live in and the premises and inclusions are in good repair and the lessor is not in breach of the law dealing with issues about health or safety of persons using or entering the premises.4 [25] While the tenancy continues the lessor must maintain the premises in a way that the premises remain fit for the tenant to live in and must maintain the premises and inclusions in good repair and must ensure any law dealing with issues about health or safety of persons using or entering the premises are complied with.5 [26] I have set out above the general timeline of complaints. On 20 January 2014 the applicants issued a noticed remedy pursuant to section 325 of the Act which detailed the breach as follows: ‘air-conditioning system was not operational at lease commencement and still does not work, railings and palings dangerous, smoke alarms have not been professionally checked, and blinds were unsafe’. [27] I note that the first time a complaint was made about the air-conditioning was on Christmas day 2013, however, despite that being the case it appears from the notice to remedy that the air-conditioning was not operational at the commencement of the lease. [28] The applicants contend that the air-conditioning has not been fixed. Because of the application of section 119(3) any application should have been made before the 19 October 2013. [29] As to the allegation that the stairwell was too narrow, it is difficult to see how in circumstances where the applicants agreed to rent the property starting in April 2013 and having moved in, that the size of the stairwell is a breach of the tenancy agreement. In any event no application was 2 Act Division 3, s 419(3). 3 Act s 417(2). 4 Act s 185(2). 5 Act s 185(3). -- 4 of 6 -- 5 commenced within 6 months of the applicants becoming aware of the situation. [30] So far as the blinds are concerned if they are a breach of the obligations under the Act and the tenancy agreement any application should have been made before the end of October 2013. [31] So far as the complaint about the alarm system is concerned it seems to me that the complaint is that the system did not raise an alarm back to base. The alarm system provided was not of that nature. It seems to be an alarm system, where after it is activated and if a code is not punched into the system and there is movement or breakage an alarm will sound within the premises. I am not satisfied that the alarm system was not operational but in any event no application was filed within the 6 month period of it been known. [32] So far as the rats and vermin are concerned on the timeline provided by the applicants the problem became apparent in January 2014 further complaint was made in March 2014 and May 2014 a notice to remedy the breach was given on 20 May 2014. The breach identified in the notice was as follows: Continuing problem with rats/vermin. This was originally reported last year and no action has been taken. Council has confirmed evidence of long term infestation. Blinds are unsafe and were on previous breach notice. These are not safe. Alarm system is not in working order and owner refused to make it in working order. Air-conditioning system not completely operational. We will also seek rental compensation. [33] It is clear that the applicants knew of all of those problems. If they be categorised as breaches of the Act or tenancy agreement then the application should have been made before 20 November 2014. [34] There was reference to the dispute being about rental compensation and that the claim was greater than the bond. That seems to contemplate an order for a rent decrease.6 No such application has been made and the current application is said to be pursuant to section 420. [35] The way the applicants seemed to have approached their complaints is that they were really seeking compensation for a loss of amenity. That is not what is contemplated by section 420 or 419. For those sections to apply there has to be a breach of the agreement identified. [36] Whilst there were no doubt concerns about the various matters identified I am not satisfied that there were breaches of the agreement that were not remedied. [37] The respondent contends that the concerns of the applicants were addressed appropriately and remedied as best it could be. 6 Act s 94. -- 5 of 6 -- 6 [38] At the commencement of the hearing it was apparent that, in part, the applicants were relying on representations made in an advertisement for the property.7 There is evidence submitted that supports that contention. [39] The general tenancy agreement sets out the lessors obligations. It is a reflection of section 185. As identified earlier there is an obligation to maintain the premises in a way that the premises remain fit for the tenant to live in and maintain the premises in good repair. [40] In Fine v Geier [2003] QSC 073, Wilson J, when considering how the phrase “fit for the tenant to live in” is determined said: Questions of fitness for habitation and repair are to be judged against a standard of reasonableness having regard the age, character and locality of the residential premises and to the effect of a default on the state or condition of the premises as a whole: Bond v Weeks [1991] 1 Qd 134 at page 138 (where the court of appeal discussed provisions to similar effect in earlier legislation). [41] Even if this application had been commenced within the limitation period, having regard to the nature of the house and the possible effects of the faults on the state or condition of the premises as a whole, I would not be satisfied against a standard of appropriate reasonableness that there has been a breach of clause 25 of the General residential tenancy agreement. [42] If this had been an application pursuant to section 94, it may be that there may have been a finding that the premises at some stage were partially unfit or the amenity or standard of the premises decreased but as I have said earlier this is not an application under section 94.8 [43] I am not satisfied that the application has been commenced or filed within the limitation period and it is well settled that the tribunal has no discretion to extend that time frame.9 [44] For that reason I do not have the jurisdiction to make the order sought and the application is dismissed. [45] Even if the application had been commenced in time I would not be satisfied that there was a breach of the residential tenancy agreement identified such as to call for a compensation order. In any event, if the matters complained of were within the limitation period and the breach identified and proved I would not be satisfied that the award for compensation should be other than minimal when compared to the amount sought. 7 Exhibit 1. 8 For guidance on s 94: Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158. 9 Caruana v Harcourt’s Proactive Results Pty Ltd [2012] QCATA 55 at [13] – [14]. -- 6 of 6 --