Estate of KM Shaw v Waddell [2014] QCAT 155

CITATION: Estate of KM Shaw v Waddell [2014] QCAT 155 PARTIES: Estate of K.M. Shaw (Applicant) v Craig Waddell (Respondent) APPLICATION NUMBER: MCD131/14 MATTER TYPE: Other minor civil dispute matters Residential tenancy dispute HEARING DATE: 1 April 2014 HEARD AT: Brisbane DECISION OF: Member Favell DELIVERED ON: 4 April 2014 DELIVERED AT: Brisbane ORDERS MADE: The application is dismissed. CATCHWORDS: Minor civil debt – whether breach of tenancy agreement – whether application commenced in time APPEARANCES and REPRESENTATION (if any): APPLICANT: Estate of K.M. Shaw represented by Kenneth Shaw RESPONDENT: Craig Waddell REASONS FOR DECISION [1] The applicant filed an application for minor civil dispute/residential tenancy dispute on 15 January 2014. It sought to rely on section 119 and 169 of the Residential Tenancies and Rooming Accommodation Act 2008. In its application, it wanted the Tribunal to make an order for ‘breach of agreement’ and ‘loss of amenity’. The total of the claim made was $30,336, it being broken up into $20,500 for roofing, $4,600 for plaster, $3,786 for painting and $1,450 for cleaning. -- 1 of 6 -- 2 [2] At the beginning of the hearing, Kenneth Shaw who appeared for the applicant as executor told me that the claim was capped at $25,000 being the maximum allowed for in the minor civil dispute jurisdiction of QCAT. [3] The estate of Kenneth Mervin Shaw was the owner of the house at 69 Bozzato Place at Kenmore. [4] The respondent had been a tenant at that property for approximately 15 years. The tenancy had commenced when the property was in the ownership of someone else other than Kenneth Mervin Shaw. [5] The estate contends that Mr Waddell failed in an obligation to inform the estate of roof damage caused by falling tree branches. That failure resulted in serious water damage to the ceilings in three rooms, the walls in two rooms and the carpets in three rooms. [6] The estate contends that Mr Waddell removed the carpet in two rooms and described the third room as ‘the danger room’ because rain regularly flowed through the ceiling light fitting and had rendered the carpet mouldy. [7] The estate contends that the damages were discovered when a property inspection was arranged after Kenneth Mervin Shaw passed away. It says that Mr Waddell could not advise when the damage occurred but confirmed that he did not report it to Kenneth Mervin Shaw. Instead he climbed on the roof and inserted plastic bags in the holes of the roof. At the time of the inspection the representatives of the estate also found that a toilet which had been leaking had not been reported and the gutters required cleaning at a cost of $180. A defective kitchen outlet was required to be replaced at a cost of $100. [8] Further, vines had grown up the entire side of the house. [9] Mr Waddell gave notice of intention to leave on 8 July 2013 informing that he intended to give up vacant possession by midnight on 22 July 2013. He subsequently vacated the premises. The notice was issued with grounds namely, The plumbing in the house has now been unliveable. Both toilets can only be used once each a day and more than that they back up and overflow. The shower drainage downstairs also backs up and can floor the downstairs area if you are not out in time. The roof in the front bedroom and far end bedroom leak when it rains.1 [10] Kenneth Shaw (deceased) lived close to the subject property with his wife. His wife died in February of 2011 and Mr Shaw died in August 2011. [11] Mr Waddell denies the assertion that he failed to inform the landlord of damage at 69 Brookfield Road or 69 Bozzato Place, Kenmore. 1 Exhibit 4. -- 2 of 6 -- 3 [12] He filed a statement which said There has been numerous times when the landlord was informed of tree branches falling through the roof that caused the mentioned damage and this can be backed up by an affidavit and supplied on the day of the hearing form a former partner Victoria Chapman that lived with me from 2007 to 2012. [13] Mr Waddell contends that within the 13 or so years that he lived at the property there was never an official inspection conducted. He contends that the damage occurred over a period of time due to the neglect of the property by the landlord and the failure to hold regular inspections as well as a failure to conduct preventative maintenance. [14] Mr Waddell contends that after the death of the landlord it was not until the beginning of 2013 that the executors made contact with him. Up until then he was provided with no details of the executors except there was a request to change the rent deposit details. [15] In response to the claims made by the estate, Mr Waddell says that he had given notice to the landlord about the condition of the property on a number of occasions. He had removed carpet because it was becoming a health issue and he had put a lock on some doors so as to provide security. Insofar as there is a claim made for cleaning, he says that he made arrangements with the Salvation Army to collect abandoned personal property. There is an email which was tendered which supports that contention however I am told that the Salvation Army did not take away the abandoned property. [16] The executors of the estate had made a claim for the repair of the roof which claim was rejected on the basis that the claim was made late. [17] Mr Waddell recalls a number of occasions when the landlord was informed of the state of the property. He had walked through the property and the need for the replacement of a hot water system after it had caught on fire and damage from falling tree branches to the roof was pointed out to him. At that time a complaint was made about the absence of smoke alarms. After nothing was done about he roofing Mr Waddell inserted plastic shopping bags into the holes of the roof. [18] As to the drainage problems and toilet problems, the respondent says that he asked the landlord to connect the house to a septic system and was told that it would be far too much money to do so and the landlord had no intention of doing it. The respondent contends that that is the reason for the problems associated with the sewerage. [19] As to the cleaning of the gutters issue, the respondent says that that is a property maintenance issue for the landlord but in any event he did from time to time carry out cleaning. Insofar as there are vines growing up the sides of the house, the respondent says that they had been there the entire time he had lived in the area. A photograph of that area tendered by the applicant in my view shows an established growth. -- 3 of 6 -- 4 [20] No residential tenancy agreement has been produced. [21] The respondent is unable to say how his partner at the time may have arranged any rental agreement with the former landlord. Neither party can produce any formal agreement. [22] Victoria Chapman, who resided at the property with Craig Waddell between 2007 and 2012, swore a statutory declaration which became exhibit 3. She says that she was always concerned about the roof because it contained asbestos and branches from the overhanging gum tree caused constant damage. She discussed that with Kenneth Shaw (deceased) and showed him the water damage in the office and bedrooms at the time. He made no offer to rectify and nor did he rectify. [23] She said that Kenneth Shaw (deceased) would often drive past with his wife and stop for a chat. She says that at the time of the floods a number of suites owned by her and Mr Waddell were water damaged as the roof leaked profusely. That was brought to the attention of Mr Shaw as the downstairs area was flooded with three or four inches of water. She says that occurred on a number of occasions and was reported but the problem was not fixed. [24] I have no reason to disbelieve anything that the respondent has said in exhibit 2 or what Ms Chapman has said in exhibit 3. [25] In addition to the claim for $30,336, in exhibit 5 which was tendered during the hearing, the applicants claimed $10,000 loss of rent since 22 July 2013 at $250 a week and the QCAT lodgement fee of $284.60. They have produced quotes for the repairs sought. In their claim the applicant says ‘Mr Waddell’s conduct in breach of his obligations have cost the estate a very considerable amount of money for which we seek compensation through this Tribunal.’ [26] They do not point to any specific obligations and seemed to contend that the failure to report was negligent and thus Mr Waddell should be liable. [27] I was told during the course of the hearing that a bond of $1000 had been paid but it had been paid to the applicant. [28] In my view, there is no doubt that the property, at the time of the respondent leaving, was in the condition presented to the Tribunal. I am of the view that the reason for the condition of the property was the failure to maintain the property. [29] Here there is no entry or exit condition report and there is no signed tenancy agreement provided. [30] The claim made by the applicant is based on the condition of the property after Kenneth Shaw passed away and because the insurance claim in respect of the roof was refused. The applicant is unable to provide any detail of conversations had between Kenneth Shaw (deceased) and -- 4 of 6 -- 5 Mr Waddell or his then partner. In my view, the claims are really based on assertions which have not been substantiated. [31] This application was commenced as a claim in the minor civil disputes jurisdiction of QCAT. [32] Section 12(1) of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’) allows the Tribunal to exercise its discretion for a minor civil dispute if a relevant person has, under the Act, applied to the Tribunal to deal with the dispute. [33] A relevant person may, agree to limit the person’s claim to the prescribed amount in order to bring the claim within the Tribunal’s jurisdiction for a minor civil dispute. [34] A relevant person means (relevantly) (f) For a tenancy matter – a person who, under the Residential Tenancies and Rooming Accommodation Act 2008, may apply to the Tribunal for a decision in relation to the matter. [35] Under the Residential Tenancies and Rooming Accommodation Act 2008 a residential tenancy agreement is an agreement under which a person gives to someone else the right to occupy residential premises as a residence and it applies whether the agreement is wholly in writing, wholly oral or wholly implied.2 [36] Lessors and tenants under residential tenancy agreements may make applications to the Tribunal.3 [37] Section 418 of the Residential Tenancies and Rooming Accommodation Act 2008 allows a person to apply to a Tribunal for an order declaring that a stated agreement is or is not a residential tenancy agreement to which the act applies. [38] Section 419 applies if there is a claim that there has been a breach of a term of a residential tenancy agreement. [39] Here the applicant standing in the shoes of the deceased landlord does not point to any particular breach of a particular agreement. General assumptions were made about what an agreement should provide but no actual agreement was proved in the Residential Tenancies and Rooming Accommodation Act. [40] Any application must be made within six months after the lessor or tenant becomes aware of the breach. Here the application was filed on 15 January 2014. On the material supplied by the applicant, the executors inspected the property with the respondent on 13 February 2013. By 15 July 2013 the insurer of the property Allianz Australia denied liability in view of the period of time since the damage occurred. 2 Residential Tenancies and Rooming Accommodation Act 2008 s 12. 3 Residential Tenancies and Rooming Accommodation Act 2008 s 414. -- 5 of 6 -- 6 [41] Here, on any account the application has not been made within the six months provided for by section 419. [42] Here, I cannot be satisfied that the application, if valid, has been commenced in time. Further I am not satisfied that this is a dispute about a breach of a residential tenancies agreement. Indeed, no residential tenancy agreement has been provided. [43] In all of the circumstances I find that the Tribunal does not have jurisdiction to hear this matter and the application is dismissed. In any event I could not be reasonably satisfied that there was a breach of a residential tenancy agreement or that the respondent was responsible for the condition of the property. -- 6 of 6 --