Doctor v Umpi Korumba ATSIC for housing [2012] QCAT 657

CITATION: Doctor v Umpi Korumba ATSIC for housing [2012] QCAT 657 PARTIES: Jennifer Doctor v Umpi Korumba ATSIC for housing APPLICATION NUMBER: MCDO1936-12 MATTER TYPE: Residential tenancy matters HEARING DATE: 31 October 2012 HEARD AT: Brisbane DECISION OF: Jim Allen, Member DELIVERED ON: 14 December 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Umpi Korumba ATSIC for housing pay Ms Jennifer Doctor the amount of $6,446.15 as compensation for breach of a lease on or before 31 January 2013. CATCHWORDS: Minor Civil Dispute – Residential tenancy – breach of covenant to keep in good repair – compensation – contravening of Tribunal order Residential Tenancies and Rooming Accommodation Act 2008, ss 185(3), 419, 420 Queensland Civil and Administrative Tribunal Act 2009, ss 213, 218, 219 APPEARANCES and REPRESENTATION (if any): APPLICANT: Ms Jennifer Doctor was represented by Ms Pahl of the Tenants’ Union of Queensland Inc RESPONDENT: Umpi Korumba ATSIC for housing was represented by Ms Byrne of Justus lawyers REASONS FOR DECISION [1] Ms Doctor was the tenant at 17 Santa Cruz Street, Bray Park with Umpi Korumba ATSIC for housing as the lessor. Ms Doctor served a notice to remedy breach in respect of repairs needed to the premises on 1 July -- 1 of 8 -- 2 2011 and when those repairs were not done she made an application to the Tribunal. [2] The Tribunal made an order on 12 September 2011 as amended on 14 November 2011 that Ms Doctor vacate the premises within three months, that she was relieved from payment of rent from that date to the date she vacated the premises and Umpi Korumba were to effect repairs to the premises within 3 months of her vacating the premises, Ms Doctor shall at the expiration of such 3 month period or immediately on completion of such repairs whichever the sooner occurs be entitled to re- enter possession of the premises as tenant on the same terms and conditions as she presently rents the subject premises on the proviso that no more than 6 persons reside in the premises at any given time. In the event of non-compliance either party was at liberty to apply. [3] Ms Doctor vacated the property on 12 December 2011 and had an expectation that the repairs would have been completed on or before 12 March 2012 in accordance with the Tribunal’s order. On 24 February 2012 a fax was sent by the Tenants’ Union of Queensland to Umpi Korumba advising, on Ms Doctor’s instructions, that no work had been carried out at the property since it was vacated and noting that failure to comply with the Tribunal’s order was an offence1. Umpi Korumba were put on notice that if they failed to effect repairs at the premises by 12 March 2012 the tenant had no alternative but to commence enforcement proceedings. There was no response to this fax. [4] Ms Doctor filed a form 16 Dispute Resolution Request with the Residential Tenancies Authority on 15 March 2012 and was issued with a “Notice of Unresolved Dispute” on 20 March 2012. Ms Doctor stated that she was not able to ascertain any information about Umpi Korumba’s compliance with the Tribunal order via the RTA conciliation process. [5] A further fax was sent to Umpi Korumba by the Tenants’ Union of Queensland on 4 May 2012 confirming that there had been no reply to the earlier fax and advising that if the repairs were not effected by 11 May 2012 they had instructions to institute proceedings at the Tribunal against Umpi Korumba pursuant to s 213 of the QCAT Act. [6] This application was then filed by Ms Doctor in the Tribunal on 6 June 2012 requesting that the Tribunal administers a penalty under s 213 of the QCAT Act. The application was heard on 29 June 2012 the hearing was adjourned and an order was made for Ms Doctor to file and deliver an amended application. The amended application requested that the Tribunal award compensation to Ms Doctor for the period 13 March 2012 up to 10 August 2012 in the amount of $3,539.50 made up as follows: i) Difference in rent from 13 March 2012 to 10 August 2012: $95.00/7 days = $13.57 1 Section 213 of the Queensland Civil and Administrative Tribunal Act 2009. -- 2 of 8 -- 3 $13.57 x 151 days = $2,049.30 ii) Storages fees from 13 March 2012 to 10 August 2012: $187.00/30 days = $6.23 $6.23 x 151 days = $941.23 iii) Mail re-direction from 13 March 2012 to 10 August 2012: $28.00/90 days = $0.31 $0.31 x 151 days = $46.97 iv) Water rates from 13 March 2012 to 10 August 2012: $180.00/90 days = $2.00 $2.00 X 151 Days = $302.00 v) Foxtel re-direction fee: $200.00. [7] There was also provision in the order to make the repairs required at the premises more specific and the remainder of the request was dependent on whether the repairs were carried out with the application to re-listed after 31 August 2012. If the repairs were not effected then a further amount of compensation was claimed for the period 11 August 2012 to 31 December 2012 in the amount of $3,161.73 on the following basis: i) Difference in rent from 11 August 2012 to 31 December 2012: $95.00/7 days = $13.57 $13.57 x 143 days = $1,940.51 ii) Storage fees from 11 August 2012 to 31 December 2012: $187.00/30 days = $6.23 $6.23 x 143 days = $890.89 iii) Mail re-direction from 11 August 2012 to 31 December 2012: $28.00/90 days = $0.31 $0.31 x 143 days = $44.33 iv) Water rates from 11 August 2012 to 31 December 2012: $180.00/90 days to $2.00 $2.00 x 143 days = $286.00 -- 3 of 8 -- 4 [8] There was also a request that the Tribunal terminate the tenancy and that the Residential Tenancy Authority pay the bond in the amount of $480.00 to Ms Doctor. [9] Umpi Korumba provided a response to the application and confirmed that it did not have funds to affect the repairs required at the premises. This was supported by affidavits from various office holders of Umpi Korumba. A quote obtained from Q-Build, which was annexed to the affidavit of Ms Desico Doctor the General Manager of Umpi Korumba, to bring the premises up to “public housing-like standards” specified that the necessary repairs would cost $140,944.00. The Affidavit of Ms Marisso Cobbo, the treasurer of Umpi Korumba confirmed that Umpi Korumba was not in a financial position to affect the repairs. [10] Umpi Korumba accepted that it should pay the costs of the difference in rent, mail re-direction fee and water rates for the period 13 March 2012 to 10 August 2012 in the amount of $2,398.27. Umpi Korumba was also prepared to pay an additional amount for the difference in rent and water for the period from 11 August 2011 to 10 October 2012 in the amount of $1,105.47 and for the Ms Doctor to receive the whole amount of the bond in the amount of $480.00. [11] Umpi Korumba disputed the cost for the additional storage facility and the Foxtel relocation costs and the mail direction after the termination of the tenancy. They also considered that compensation should only continue for a period of two months after 10 August 2012 which was the date they requested the tenancy be terminated. [12] A request was made by the Tribunal for further submissions from the parties at a hearing on 10 August 2012. The applicant’s submissions noted that the claim for the difference in rent required amendment due to the rental difference for the period 13 March 2012 to 17 May 2012 being $90.00 instead of $95.00. Overall this meant that the amount claimed for the difference in rental became $3,942.72. The submissions noted that Ms Doctor had lived in the premises for 13 years, paid a subsidised rent, had established herself in the Bray Park/Strathpine area and assumed that her tenure would be secure for many years. The submissions note that Ms Doctor has been forced into the private rental market and it is likely that she will remain in the private rental market as there are no other houses managed by an Indigenous community housing organisation in the area. It is stated that the community housing organisations have a greater responsibility to their tenants than a private lessor as it is a very substantial benefit2. [13] The lease for the new property will expire on 8 November 2012 and it is likely to be renewed given the lack of other options in a tight rental market. Ms Doctor will continue to have to pay full market rent and it is submitted 2 Glenn Nicholson v New South Wales Land and Housing Corporation also known as the Department of Housing cited in Aboriginal Housing Company v Nicholls [1992] NSWRT 13. -- 4 of 8 -- 5 that it is reasonable that Umpi Korumba pay the difference for a period of less than one year. In regard to the storage costs it as submitted on behalf of Ms Doctor that the house she is now residing in is smaller than the premises and when she moved she was unable to store all of her goods at the new house. Until 29 June 2012 Ms Doctor had assumed she would be moving back to the premises and had not unpacked her goods. In regard to the Foxtel fee it was submitted that it was connected at the premises and the cost was borne as a result of the Umpi Korumba’s breach of the Act. The mail re-direction was renewed on 27 June as Ms Doctor did not at that stage know if she would be returning to the premises. Water rates were not payable at the premises but are payable at the new property. [14] It was submitted on behalf of Umpi Korumba that the lease be terminated as at 17 August 2012 and that all compensation be for the period 13 March 2012 to 16 October 2012 a total of $3,395.36. It is submitted that there is no liability for storage as Ms Doctor had ample time to find a suitable premises and it is irrelevant that she currently leases a 3 bedroom house instead of the 4 bedroom house that comprised the premises. The mail re- direction compensation has been calculated to 30 September 2012 as it is paid in three month lots. It is submitted that Ms Doctor had ample time to notify the relevant organisation of her new address. Further in regard to the Foxtel fee that it is not consistent with the objectives of Umpi Korumba to compensate Ms Doctor for a Foxtel account which is a cost associated with a luxury discretionary item. [15] Umpi Korumba submits that the compensation period should be calculated to 16 October 2012 as Ms Doctor is currently operating under a short-term lease and two months is a reasonable amount of time for her to make applications for community housing schemes or relocate to another premises. This is on the basis of the history of tenancy arrangements between the parties and it is noted that the last formal lease agreement entered between the parties expired on 1 September 2010. There were also issues raised about Ms Doctor’s eligibility being dependent upon her disclosing her income to Umpi Korumba and that this had not been done for some years. It is clear though that Ms Doctor continued to be a tenant of Umpi Korumba and it must be assumed that she was eligible. Discussion [16] Umpi Korumba as lessor had duties under the Act to maintain the premises in good repair3. They have breached that duty and Ms Doctor has suffered loss. While a Tribunal ordered arrangement was in place for the remedy of those breaches this has failed and Ms Doctor will no longer be able to reside at the premises. As the parties were both in agreement that the lease should be terminated it was agreed that they would prepare a document acknowledging the termination of the lease in accordance with 3 Section 185(3) of the Residential Tenancies and Rooming Accommodation Act 2008. -- 5 of 8 -- 6 the Act4. They will also make the appropriate request to the Residential Tenancies Authority for the payment of the bond to Ms Doctor5. [17] Ms Doctor had agreed to vacate the premises and find short term accommodation during the period that the premises were to be repaired. She was not required to pay rent from the date of the original order on 12 September 2011 until she was able to re-occupy the premises. Ms Doctor was not otherwise compensated for the cost of temporarily moving. Once it became clear that the premises were not to be repaired as ordered Ms Doctor made a claim for compensation6. [18] Compensation is for the loss incurred by Ms Doctor as a result of Umpi Korumba’s breach. Clearly part of that loss is the additional rent she has paid due to her housing no longer being subsidised. The amount claimed is for the period 13 March 2012 to 31 December 2012. Umpi Korumba wishes to limit the compensation to 16 October 2012. There is a need to bring finality to the claim and having regard to the fact that there was not a fixed term lease and Ms Doctor has known that the lease would be terminating since 29 June 2012 the Tribunal considers it appropriate that the compensation be fixed to the date of this hearing being 31 October 2012. [19] Some of the items claimed by Ms Doctor are disputed in particular the storage costs. Ms Doctor made arrangements for the accommodation of herself and her family and their possessions on the basis that she would be returning to the premises in accordance with the order made by the Tribunal on 12 September 2011. Ms Doctor required the use of a storage shed to accommodate some of her possessions, this was attributed to the fact that the new house was smaller. These costs have been incurred by Ms Doctor and while it may be argued that she could have acquired new premises of the same size as the premises this would probably have necessitated higher weekly rental and so the amount of compensation may have been the same or more. The storage fees are to be paid for the period 13 March 2012 to 31 October 2012. [20] Ms Doctor incurred an expense of $200 for the relocation of her Foxtel and this is also in dispute. Umpi Korumba has submitted that this is a discretionary item but it is a cost incurred which would otherwise be compensatable. The Tribunal notes though that this fee was paid prior to the 12 March 2012 and as other expenses incurred during that period were not claimable as the Tribunal’s order of 12 September 2012 made no provision for compensation for the period up to 12 March 2012 the relocation fee will not be allowed. [21] The mail redirection costs have been paid to 30 September 2012. Ms Doctor has known at least since August that she would not be returning to 4 Section 277 of the Residential Tenancies and Rooming Accommodation Act 2008. 5 Section 131 of the Residential Tenancies and Rooming Accommodation Act 2008. 6 Section 419 and 420 of the Residential Tenancies and Rooming Accommodation Act 2008. -- 6 of 8 -- 7 the premises and the Tribunal agrees with Umpi Korumba that Ms Doctor would have had ample time to change her address as necessary prior to 30 September 2012. [22] The lease for the premises did not require Ms Doctor to pay for water rates and she is required to do so under her new lease. She should be compensated for the additional cost incurred from 13 March 2012 to 31 October 2012. [23] Overall the total amount of compensation is $6,446.15 calculated as follows: i) Difference in rent from 13 March 2012 to 17 May 2012: $90.00/7 days = $12.85 $12.85 x 66 days = $848.57 ii) Difference in rent from 18 May to 31 October 2012 $95.00/7 days = $13.57 $13.57 x 228 days = $3,093.96 iii) Storages fees from 13 March 2012 to 31 October 2012: $187.00/30 days = $6.23 $6.23 x 294 days = $1,831.62 iv) Mail re-direction from 13 March 2012 to 30 September 2012: $28.00/90 days 294/90 = 3 rounded $28.00 x 3 = $84.00 v) Water rates from 13 March 2012 to 31 October 2012: $180.00/90 days = $2.00 $2.00 X 294 Days = $588.00 [24] The Tribunal notes that Umpi Korumba is a community housing agency which has limited funding and this order will place a burden upon its resources. For that reason Umpi Korumba will be given until 31 January 2013 to pay the amount of compensation to Ms Doctor. [25] The initial application to the Tribunal requested that the Tribunal administer a penalty under s 213 of the QCAT Act to Umpi Korumba for contravening the order of 12 September 2012. The Tribunal does not have the power to issue a civil penalty but a person who commits an offence may be liable for -- 7 of 8 -- 8 contempt of the Tribunal7. As this hearing of the Tribunal is not constituted by a judicial member the presiding member may certify the contempt in writing to the President of the Tribunal8. The question then is, did Umpi Korumba commit an offence under s 213 of the QCAT Act? Clearly Umpi Korumba contravened the order of 12 September 2012 by not attending to the repairs of the premises, but was there a reasonable excuse for contravening the order. [26] Something needs to said first though about Umpi Korumba’s conduct in regard to this matter. At the time the application was made Umpi Korumba had not had any communication with Ms Doctor to keep her informed of events in regard to the repairs even though several attempts were made as set out above by the Tenants’ Union of Queensland to ascertain the situation on her behalf and she had initiated a dispute resolution process with the Residential Tenancy Authority. This lack of communication resulted in the application to the Tribunal. [27] There should have been adequate communication as one would expect in circumstances where one party has in good faith taken action on the basis that the other party would abide by the terms of an order. It may be that the matter could have been worked out between the parties without recourse to the Tribunal if Ms Doctor had been informed about the problems with the repairs. [28] The fact that Umpi Korumba was actively trying to liaise with government agencies to deal with the repairs does not excuse the total lack of communication with Ms Doctor. That said it is clear that Umpi Korumba was not in a financial position to comply with the order of the Tribunal and it did not wilfully try to avoid its obligation to comply with the order. Therefore the Tribunal is satisfied that Umpi Korumba had a reasonable excuse for contravening the order and no offence has been committed. 7 Section 218 of the Queensland Civil and Administrative Tribunal Act 2009. 8 Section 219 of the Queensland Civil and Administrative Tribunal Act 2009. -- 8 of 8 --