Beasley & Lister-Browne v Diggles [2013] QCATA 63

CITATION: Beasley & Lister-Browne v Diggles [2013] QCATA 63 PARTIES: Mr. Dathan Beasley And Ms Lisa Lister-Browne (Appellants) v Ms Diane Marie Diggles (Respondent) APPLICATION NUMBER: APL247-12 MATTER TYPE: Appeals HEARING DATE: On the papers. HEARD AT: Brisbane DECISION OF: Mr. Richard Oliver, Senior Member Mr. David Paratz, Member DELIVERED ON: 4 February 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to Appeal is refused. CATCHWORDS: APPEAL - tenancy – tenant injured by falling rangehood – stovetop damaged and unusable - claim for reduced amenity of premises – rent reduced for period until cooktop is replaced – effect of Release on personal injuries claim Residential Tenancies and Rooming Accommodation Act 2008, s 185, s 419, s420 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 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 (QCAT Act). -- 1 of 6 -- 2 REASONS FOR DECISION Mr Oliver, Senior Member [1] In this matter the Appeal Tribunal consisted of Mr. Paratz, QCAT Member, and me. I have had the benefit of reading his reasons in draft. I agree with his reasons, and his conclusions, and the order he proposes. Mr. Paratz, Member [2] This is an appeal against the decision of an Adjudicator in a residential tenancy matter. [3] Mrs. Diggles („the tenant‟) was the tenant of a townhouse at Drane Street, Clayfield, Brisbane. [4] Mr. Beasley and Ms. Lister-Browne („the lessors‟) are the lessors of the townhouse. They reside in Dubai in the United Arab Emirates. Mr. Beasley is a Project Controls Manager, and Ms. Lister-Browne formerly practised in Brisbane as a solicitor. [5] The tenant filed a Minor Civil Dispute claim on 6 December 2010 seeking repairs to the kitchen, a reduction in rent, loss of income, pain and suffering, refund of costs for the Tribunal, and costs of taxi and an acupuncturist. [6] The matter was initiated by an incident on 14 November 2010 when a rangehood in the townhouse became detached from the wall and fell onto the glass cooktop below it. The cooktop was shattered and was unusable. [7] There has been dispute as to the circumstances of the incident. The tenant made a claim for personal injury which was settled. [8] This application was heard on 9 March 2012. The tenant was represented by a solicitor by leave. The lessors did not appear. [9] The learned Adjudicator heard evidence from the tenant, and submissions on her behalf from her solicitor. [10] The tenant only proceeded on the claim for reduction of rent. [11] The learned Adjudicator ordered that the lessors pay to the tenant the amount of $1,092 calculated as follows:- Diminution of rent for 10 weeks at $100 per week $1,000.00 Application Fee $ 92.00 [12] The lessors subsequently applied to re-open the proceedings; and to stay the order. Both of those applications were refused. -- 2 of 6 -- 3 [13] The lessors filed an appeal against the order of the Adjudicator on 3 August 2012. They attached 9 pages listing seven grounds of appeal (although they are only numbered as six). These are headed:- 1. Question of fact – tenant not entitled to claim 2. Question of fact – whether the rangehood was securely attached to the wall 3. Question of fact on weight of evidence 4. Question of fact – statements of tenant 5. Question of law – tenant‟s contribution not taken into account 5. Question of law – rent reduction does not apply for full period 6. Question of fact – student not authorised [14] The lessors filed written submissions as to the appeal on 7 September 2012. There were 65 pages of written submissions and a large ring binder containing 532 pages of attachments. [15] The tenant filed written submissions as to the appeal on 4 October 2012. There were 4 pages of written submissions and 9 pages of attachments and photographs. [16] The tenant gave evidence as to the circumstances as to how the rangehood came to fall (page 2 transcript):- What happened sir was that I was cleaning the range hood and the range hood was above the glass stove and it started to move. As I was cleaning it, right up the back of it, it actually started coming away from the wall and I tried to grab it to stop it from falling because I could see it was going to fall, so I grabbed it to stop it from falling but it fell and it took me with it and, if you have a look at the photos that I‟ve brought you‟ll see that the stove itself, it was a big glass cook top, and the back of the stove is what cracked , not the front of the stove, so if I had of actually pulled it down it would have broken the front of the stove when in actual fact it slid down the wall and broke the back of the stove. [17] The learned Adjudicator accepted the tenant‟s version of events as to how the rangehood fell, saying in his decision (page 4 transcript):- That damage would appear to be consistent with the version that Ms Diggles is proffering to the tribunal today. Ms Diggles strikes me as an honest witness and I accept her version of what occurred on the day… [18] The relevance of the acceptance of the tenant‟s version by the Adjudicator is that it negates any suggestion that the tenant caused the event and bears some liability for the consequences. [19] The tenant‟s solicitor submitted that the cooktop was eventually repaired on 20 January 2011 and hence remained in the damaged condition for almost 10 weeks from 14 November, over the Christmas period. He submitted this resulted in consequential disruption to Ms Diggles use of the unit and the kitchen, and required Ms. Diggles to take steps to get food and incurred extra expense. -- 3 of 6 -- 4 [20] The learned Adjudicator accepted that period, saying (page 4 Transcript):- A cooking facility is essential with livability of any premises. Its enshrined in the RTA Legislation. Lack of a proper cooking facility certain warrants a diminution in rent. I think a diminution of rent of $100 per week is reasonable in the circumstances. The period 14 November to 20 January is just shy of 70 days, close enough for me to be able to say 10 weeks because it is in fact 16 days in November, 31 days in December and 20 days in January. That‟s 67 days, so in round figures I am prepared to allow 10 weeks at $100 per week, that‟s $1,000… [21] The lessors have argued in their submissions that a rent reduction should only be awarded in respect of the dates where a lack of repair is reasonable. They say at page 13 of their submissions:- In determining what is a reasonable period of time for repair to occur, the tribunal should have regard to the nature of the repairs required (noting that the type of cooktop damaged is difficult to replace with a like appliance and that the size of the appliance to be replaced made cabinet work necessary), the tenant had alternative cooking facilities and, also, additional cooking facilities were offered to her, the difficulty in securing suitably qualified tradespersons at the time of the year that the repairs were necessary, the burdens on insurance agencies experienced on account of extraordinary natural disasters at the end of 2010, the fact that two insurance companies were involved in making assessment about the alleged incident, the efforts that the lessors and the property manager went to so that replacement could occur swiftly, the actions of the tenant in trying to block a proper claim being put to the correct insurer, and the effect that the Brisbane Flood of January 2011 had upon the ability of the relevant tradesman to collect the replacement cooktop from a warehouse in the flooded suburb of West End. [22] The lessors do not dispute that it took 10 weeks to replace the cooktop. As they point out, it was a special size that had to fit in with the cabinetry. [23] The tenant was entitled to premises and fittings of the same standard as they leased, at the agreed rental. [24] The argument of the landlord that the tenant should have accepted some temporary solution is not consistent with their obligations under the lease. Even if the tenant had accepted a temporary cooktop, she could not be expected to pay the same rental. [25] It may have been unfortunate for the lessors that the cooktop was required at a time of the year when parts and labour were hard to obtain, and that supply was affected by the floods. These factors may have made the length of time taken to replace the cooktop longer than in other circumstances, but the obligation to replace is on the landlord, and the consequent cost caused by the delay is borne by them, not by the tenant. [26] There is no evidence that the tenant caused any delay in the replacement of the cooktop. The lessors refer to the tenant obstructing an insurance claim, but even if that occurred, the obligation was on the landlord to -- 4 of 6 -- 5 replace the cooktop irrespective of any insurance the landlord may have had resort to. [27] In the circumstances, I consider that it was open to the learned Adjudicator to find that the actual period of time of 10 weeks taken to replace this particular cooktop was the appropriate period of compensation. [28] The rental of the townhouse under the Agreement was $450 per week. The Adjudicator has described the cooktop as essential and allowed $100 per week rent reduction as a way to determine the compensation payable for the lessors‟ breach of the residential tenancy agreement under s 185 of the Residential Tenancy and Rooming Accommodation Act 2008 to ensure the inclusions are in good repair. If the lessors breach the agreement the tenant is entitled to compensation under ss 419 and 420 of the Act. [29] In this case the learned Adjudicator assessed the compensation by way of rent reduction over the period of 10 weeks. The assessment of compensation is a matter for the judgment of the Adjudicator, and would be interfered with only if it was manifestly excessive or not supported by the evidence. I accept that the loss of use of the cooktop was a significant matter, and consider that the amount ordered by the learned Adjudicator was open on the evidence and was not manifestly excessive in the circumstances. [30] The lessors argue that the “Release, Discharge and Indemnity” signed by the tenant in relation to her personal injuries claim arising from the falling of the rangehood should be a bar to this application. [31] The Release is dated 16 December 2011 and is made between the tenant and Vero Insurance. It releases the insurer and it‟s insured. The insured person is shown as Dathan Beasley. [32] In the opening paragraph the Release states that it is „in full and final satisfaction, settlement and discharge of all claims….as a result of bodily injury…‟ Paragraph 1 states that it releases and discharges Vero and its insured „with respect to all loss arising from all claims, demands, actions, suits or proceedings…as a result of the incident‟. [33] The Release clearly relates to claims for bodily injury, and to claims arising from “the incident”, which was the falling of the rangehood. [34] This application is not a claim for bodily injury, and does not arise from the incident of the falling of the rangehood. It is a claim under the lease for reduced amenity arising from the absence of the cooktop. [35] I therefore do not consider that the Release is a bar to this application. [36] Because this is an appeal from a decision of the Tribunal in its Minor Civil Dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily -- 5 of 6 -- 6 only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [37] Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.1 [38] There is nothing in the transcript that persuades me that the learned Adjudicator should have taken a different view of the facts. [39] There is no question of general importance that should be determined by the Appeals Tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. 1 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. -- 6 of 6 --