Chambers v Ansell [2012] QCATA 202

CITATION: Chambers v Ansell [2012] QCATA 202 PARTIES: Megan Chambers (Applicant/Appellant) v Kane Jason Ansell (Respondent) APPLICATION NUMBER: APL151-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 18 October 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is refused. CATCHWORDS: LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – INSPECTION AND REPAIR – where tenant given entry condition report including undertaking to have roof installed over part of premises – where roof not constructed – whether tenant entitled to compensation Queensland Civil and Administrative Tribunal Act 2009, ss 32, 142 Residential Tenancies and Rooming Accommodation Act 2008, ss 12, 61, 65, Chapter 2 Pt 1 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 -- 1 of 3 -- 2 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‟). REASONS FOR DECISION [1] Mr Ansell rented residential premises from Ms Chambers. Her letting agent and Mr Ansell entered into a general tenancy agreement under the Residential Tenancies and Rooming Accommodation Act 2008 („RTRA Act‟) from December 2010. [2] At the time Mr Ansell took up the tenancy he was given an entry condition report under s 65 of the RTRA. This included a written promise by the lessor to undertake work, including the installation of a roof over the rear decking of the premises in the New Year, and not later than 31 March 2011. [3] Despite that promise the roof was never constructed. [4] In September 2011, when the time came to negotiate a new tenancy agreement and the agent gave notice that the rent would be increased, the tenant sought a reduction in rent of $25 until the roof was installed. The lessor or her agent responded by giving the tenant a Notice to Vacate in January 2012. [5] Mr Ansell then began proceedings in QCAT‟s minor civil disputes jurisdiction seeking compensation of $12,974 including relocation costs, the increased rent of new premises, and associated moving costs. [6] The matter came on for hearing before a Magistrate sitting as a QCAT Member in March 2012. After hearing from the tenant and a representative of the letting agent it was ordered that Ms Chambers pay the tenant $750 for compensation, and $95 filing fees. [7] Ms Chambers seeks leave to appeal that decision. She is obliged under the QCAT Act to seek leave and cannot appeal as a right.1 [8] The question whether or not leave to appeal should be granted is usually addressed according to established principles: is there a reasonably arguable case of error in the primary decision?2 Is there a reasonable prospect that the applicant will obtain substantive relief?3 Is leave necessary to correct a substantial injustice to the applicant caused by some error?4 Is there a question of general importance upon which 1 Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i). 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232 at 2. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. -- 2 of 3 -- 3 further argument, and a decision of the appellate court or tribunal, would be to the public advantage?5 [9] The QCAT appeal tribunal directed that the application for leave to appeal (and the appeal, if leave is granted) would be determined on the papers, by written submissions from the parties. [10] Ms Chambers‟ submissions concede that she never installed the roof over the back deck of the property because, she says, she could not afford to do so. She agrees there was a conversation between her and the tenants around the time they took up occupation but denies there was anything of the kind described by the learned Magistrate during the hearing as a “verbal contract” to install the roof. [11] As the audio recording of the proceedings reveals, however, the learned Magistrate was referred to the entry condition report and appears to have relied upon it, as well as Mr Ansell‟s evidence about conversations associated with the promise it records, in concluding that the tenant was entitled to compensation because the roof was not constructed. The learned Magistrate then measured compensation as $15 per week, for 50 weeks. [12] The RTRA Act contains a clear expectation that the terms of agreements about residential tenancies will be recorded in writing.6 Under s 61 of the RTRA Act the lessor or the lessor‟s agent must, in fact, ensure the agreement is in writing. The Act also contemplates, however, that residential tenancy agreements will not always be in writing and may, indeed, be wholly or partly oral.7 [13] The terms of the lessor‟s promise to install the roof are contained in a document signed by or on behalf of the lessor and the tenant and are in plain, clear terms. [14] Nothing in the RTRA Act, nor anything arising under ordinary principles of contract law, prevented the Magistrate from concluding that the landlord had agreed to install roofing over the rear deck. His finding to that effect in the tenant‟s favour was entirely unsurprising and, indeed, plainly accorded with the evidence before him. [15] Once that is appreciated he was also entitled to conclude that the tenant had a valid claim for compensation which he then assessed at a figure which, having regard to the overall rent and the circumstances apparent from the evidence before him, cannot be described as excessive or unreasonable. [16] For these reasons the application for leave to appeal must be refused. 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. 6 Residential Tenancies and Rooming Accommodation Act 2008 , Chapter 2, Part 1. 7 Residential Tenancies and Rooming Accommodation Act 2008, s 12. -- 3 of 3 --