Caruana v Harcourts Proactive Results Pty Ltd [2012] QCATA 55

CITATION: Caruana v Harcourts Proactive Results Pty Ltd [2012] QCATA 55 PARTIES: Angela Caruana (Applicant) v Harcourts Proactive Results Pty Ltd (Respondent) APPLICATION NUMBER: APL333-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member Michelle Howard, Member DELIVERED ON: 29 March, 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is granted; 2. The decision of the Tribunal made on 19 August 2011 is set aside and instead the application of Ms Caruana is dismissed. CATCHWORDS: APPLICATION FOR LEAVE TO APPEAL – RESIDENTIAL TENANCY – application for breach of agreement – where s 419 prescribes time frame for application Queensland Civil and Administrative Tribunal Act 2009, s 142 Residential Tenancies and Rooming Accommodation Act 2008, s 419 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 Cachia v Grech [2009] NSWCA 232 O’Keefe v Fitzpatrick [2012} QCATA 45 -- 1 of 4 -- 2 Sendall v Howe [2012] QCATA 041 APPEARANCES and REPRESENTATION (if any): This proceeding was heard on the papers in the absence of the parties pursuant to section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION Richard Oliver, Senior Member [1] In this matter the Appeal Tribunal consisted of Ms Howard, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes. Michelle Howard, Member [2] Ms Caruana, a tenant, filed a claim on 3 December 2010 seeking various orders, but at the time of the hearing in August 2011 sought only orders relating to rent reduction for loss of amenity of $60 per week for 82 weeks until 20 July 2011, totalling $4,920, and an order to rectify the windows at the rented property. A fixed term tenancy commenced on 24 December 2009 at a weekly rental of $330. The fixed term tenancy ended on 19 January 2011, after which a periodic tenancy on the same terms and conditions subsisted. [3] The loss of amenity alleged was in relation to air-conditioning, gas cooking facilities and security issues. The property was advertised for rent with air-conditioning and gas cooking facilities. Apparently, Ms Caruana who moved from interstate rented the property on the strength of the for rent advertisement for the property. However, it is not air- conditioned and has electric as opposed to gas cooking facilities. The security issues relate to being unable to secure the premises since the windows could not be closed. [4] The tenant sent notices to remedy breach to the lessor on 12 April 2010; 14 July 2010; and 20 November 2010. They raised numerous maintenance issues relating to the windows and other things. The notices dated 12 April and 20 November also refer to the lack of air-conditioning, contrary to the advertisement. For the lack of air-conditioning she claimed $30-40 per week for lack of amenity. Gas cooking, she claimed is less expensive than electric cooking, but did not specify a particular amount, nor for the security issues, nominating a general claim of $60 per week in total. Despite these concerns, the evidence was that Mr Caruana did not wish to leave the premises because of the scarcity of rental accommodation and in her financial circumstances it was difficult for her to afford the considerable costs of moving. -- 2 of 4 -- 3 [5] The lessor acknowledged that the property was advertised as air- conditioned in error. The lessor’s agent also said that Ms Caruana was given the option to leave the premises if she wished, on the basis that she pay her as due rent until she vacated. However, she elected to stay. At her request, several issues were attended to, relating to the driveway, leaks in the sink and toilet and a back hand rail on 10 November 2010. A notice to leave was issued to Ms Caruana on the same day. The lessor had filed separate proceedings for failure to leave following unremedied rent arrears which were not before the tribunal. [6] An adjudicator made orders on 19 August 2011, that the tenant’s ledger be credited with $330 for damages for loss of amenity and that the windows in the rented property be made secure by the lessor by 16 September 2011. The learned adjudicator was satisfied that by 20 April, being the date specified in the first notice to remedy breach, the lessor was in breach of the residential tenancy agreement. [7] The learned adjudicator was satisfied that on about the 28 July 2010, Ms Caruana was given the option to vacate the premises, but she elected to stay and claim damages. She held that the tenant had an obligation to mitigate ‘any further ongoing losses to the party in breach’, and that refusing to leave amounted a refusal to mitigate any further ongoing losses. She allowed $60 per week for the period from 20 April to 28 July only. She considered that electric as opposed to gas cooking facilities did not amount to a loss of amenity, but that the other defects listed, especially the windows, did and that $60 per week was reasonable for the loss of amenity. She considered that Ms Caruana had ‘passed off an opportunity to bring the contractual damages to an end in July 2010’. [8] It should be noted that another adjudicator had made orders compensating Mr Caruana for a further week rent reduction on 27 January 2011, which the adjudicator referred to when deciding the proceeding on 19 August, 2011. [9] Ms Caruana has filed an application for leave to appeal and appeal. The specified grounds of appeal are that the tribunal erred in finding that the tenant had a duty to mitigate the respondent’s losses; in failing to apply section 362, presumably of the Residential Tenancies and Rooming Accommodation Act 2008 (the Act); in finding that the tenant had lost her right to a rent reduction when she did not leave; and in finding that the tenant was only entitled to 11 of the 86 weeks compensation for her loss of amenity. [10] Both parties were directed to file written submissions and they have done so. Directions were made for the application to be determined on the papers. [11] Leave is required to appeal the decision under section 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) because the original decision involves a minor civil dispute. -- 3 of 4 -- 4 [12] Leave to appeal will ordinarily be granted when a question of general importance upon which further argument and a decision of the Appeal Tribunal is to public advantage;1 there is a reasonably arguable case that the primary decision-maker made an error2 and there are reasonable prospects that the applicant would be granted orders in its favour;3 or to correct a substantial injustice to the applicant caused by error.4 Discussion and Decision [13] The learned adjudicator did not have regard to section 419 of the Residential Tenancies and Rooming Accommodation Act 2008 when deciding the claim. Section 419 provides that a claim by a lessor or tenant, for breach of the residential tenancy agreement,5 must be made within six months after the lessor or tenant becomes aware of the breach.6 [14] The tribunal has no discretion to extend the time frame.7 [15] The lack of air-conditioning and gas, as opposed to electric, cooking facilities were known to Ms Caruana from the time she entered into the premises in late December 2009. It is not entirely clear when she became aware of the security issues, although she says the windows cannot be closed creating this security issue. This must have become obvious when she first tried to close them. It is reasonable to infer that she became aware of this issue also in December 2009. [16] Certainly, the Notice to Remedy Breach dated 12 April 2010 includes reference to each of these items. However, the application was not filed in the tribunal until December 2010. It is apparent that the claims in respect of all three issues were made later than six months after Ms Caruana became aware of the lessor’s breach. [17] Although Ms Caruana has identified various grounds of appeal and made submissions about them, they cannot overcome the hurdle presented by section 419 of the Act. [18] However, in view of section 419, orders should not have been made in Ms Caruana’s favour. It follows that leave to appeal should be granted and the appeal should be allowed. The Appeal Tribunal may, amongst other things, set aside the decision and substitute its own decision. This is the most appropriate course in this case. I would make orders setting aside the decision of the adjudicator and dismissing Ms Caruana’s application. 1 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578 and 580. 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232, [13]. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Section 419(1). 6 Section 419(3). 7 O’Keefe v Fitzpatrick and Anor [2012] QCATA 45 and Sendall v Howe [2012] QCATA 41. -- 4 of 4 --