Brandenburg v Pollock [2011] QCAT 604

CITATION: Brandenburg v Pollock [2011] QCAT 604 PARTIES: Mr John Brandenburg (Applicant) v Ms Joy Pollock (Respondent) APPLICATION NUMBER: MCDT1358-11 / MCDT1691-11 MATTER TYPE: Residential tenancy matters HEARD AT: Brisbane DECISION OF: Ms Williams, Adjudicator DELIVERED ON: 21 November 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The applicant pay the respondent the sum of $271.92 within 28 days; 2. The Residential Tenancy Authority releases the $1,740 bond in favour of the respondent. CATCHWORDS: Minor Civil Dispute – Residential tenancy – General dispute between lessor and tenant about a general tenancy agreement – relocation because of emergency or for health and safety reasons – lessor’s obligation at the start of a tenancy – un-remedied breach – Where applicant claims compensation for breach of agreement – Where respondent claims compensation for loss of amenity and standard of the property during tenancy – Whether premises are ‘fit for a tenant to live in’ Residential Tenancies and Rooming Accommodation Act 2008, ss 185(2), 227, 302, 429 REASONS FOR DECISION Introduction [1] The applicant filed a claim in the Registry on 15 June 2011 on the basis that the tenant “broke a lease without reasonable” excuse and is therefore seeking an order for compensation and costs incurred, to be made in his -- 1 of 11 -- 2 favour against the respondent, in the amount of $4,388.701 for the following items: Damage to various timber (cedar) Venetian blinds in the amount $1,167.70; Pest spray in the amount of $120; Cleaning of property after tenant vacated in the amount of $300; Utilities charges in the amount of $100; Loss of rent (for period of three weeks and four days) in the amount of $1,554; Loss of rent to real estate agent in the amount of $435; Advertising fee to real estate agent in the amount of $150; Cost of undertaking a structural engineers report of $440; and Filing fee in the amount of $92. [2] On the 5 August 2011, the respondent filed a counter-application arguing the “house [was] not safe or fit for habitation” and sought: An order for compensation in the amount of $18,919.192 for damage suffered and costs incurred, namely: o Removalists to occupy the premises in the amount of $1,129.75; o Locksmith to secure the front door in the amount of $99; o Rent paid while living at the premises in the amount of $2,175; o Bond paid while living at the premises in the amount of $1,740; o Procheck Building Inspection to establish habitability in the amount of $440; o Removalist to evacuate the premises in the amount of $2,044.08; o National Storage cost & merchandise in the amount of $1,170; o Travel costs from Sunshine Coast to Brisbane for work in the amount of $886.16; o Filing fee in the amount of $265; and o Agent (Building Matters Queensland) fees in the amount of $8,9703; An order pursuant to section 227 of the Residential Tenancies and Rooming Accommodation Act 2008 about relocation because of emergency or for health or safety reasons. Legislation [3] The Tribunal has jurisdiction to hear and decide this matter pursuant to sections 11 and 12 of the Queensland Civil and Administrative Tribunal Act 1 As amended at hearing. 2 As amended after hearing with a further invoice for consultancy fees submitted to the Tribunal. See Footnote 3 (ii) for details. 3 Includes: (i) Consultancy fees in the amount of $5,325 as at the commencement of the second day of hearing; and (ii) Consultancy fees in the amount of $3,645 for preparation and attendance at the second day of hearing (invoice was submitted after the hearing by the respondent). -- 2 of 11 -- 3 2009 (the ‘QCAT Act’). This was a claim by the applicant against the respondent for relief under the Residential Tenancies and Rooming Accommodation Act 2008 (‘the Act’) for a residential agreement over the property located at the address identified in the claim. [4] Because both parties are seeking a compensation order to be made in their favour the Tribunal must have regard to the matters listed in s 421(1) of the Act, including whether they have taken all reasonable steps to mitigate the loss or expense suffered. If this cannot be shown, pursuant to s 362(3)(b) the party is not entitled to receive compensation for any loss or expense that could have been avoided by taking the steps. Relevant Facts [5] The parties entered into a fixed term tenancy agreement on 23 March 2011 with the terms and conditions set out in a standard form 18a General Tenancy Agreement. However the respondent, Ms Pollock ceased to occupy the property after approximately six (6) weeks, when she arranged for a removalist to uplift her possessions on 6 May 2011. [6] The lessor applicant argues the respondent broke her lease agreement without providing sufficient notice of her intention to leave and the grounds upon which the tenant vacated (non-liveability of the premises) are not made out. Therefore Mr Brandenburg submits an entitlement to compensation for loss suffered arising from this breach. [7] Conversely Ms Pollock argues the condition of the property “compromised her safety and amenity”; thus forcing her to prematurely terminate the lease agreement. Therefore the respondent submits an entitlement to compensation for loss suffered from the lessor’s failure to ensure the property at the commencement of the tenancy was fit to live in. [8] Section 185(2) of the Residential Tenancies and Rooming Accommodation Act 2008 provides inter alia at the start of a tenancy the lessor must ensure: (a) The premises and inclusions are clean; (b) The premises are fit for the tenant to live in; and (c) The premises and inclusions are in good repair. [9] Whether premises are „fit for the tenant to live in‟ is determined by imposing a standard of reasonableness test. In Fine v Geier [2003] QSC 073, Wilson J held: “Questions of fitness for habitation and repair are to be judged against a standard of reasonableness having regard to the age, character and locality of the residential premises and to the effect of a default on the state or condition of the premises as a whole: Bond v Weeks [1991] 1 Qd 134 at page 138 (where the Court of Appeal discussed provisions to similar effect in earlier legislation).” -- 3 of 11 -- 4 [10] Furthermore in Gray v Queensland Housing Commission [2004] QSC 276, Chesterman J cited the authors of Woodfall, Landlord & Tenant 28th ed, at paragraphs 1-1477: “…[N]ot every defect… will condemn a house as unfit. It is to be deemed to be unfit for human habitation if and only if it is so far defective…that it is not reasonably suitable for occupation in that condition…”. [11] On 6 May 2011 Ms Pollock gave notice to Mr Brandenburg of her intention to leave, effective immediately. At part 5 of the form 13 – where parties are to list the grounds for giving notice – the respondent refers the lessor to a covering letter for notice of the breach and an attached building inspection report from Pro Check Building Services Pty Ltd “which states this premises (sic) is not fit for human habitation”. [12] The said covering letter, also dated 6 May 2011 is signed by the respondent’s advocate, Ms Wendy Moulton of Building Matters and seeks to place the applicant lessor “on notice that serious breaches of …[the] tenancy agreement exists” with the following concerns listed: “The roof is not fit for purpose and the timber members and fixings in the roof void are in poor repair rendering the roofing system structurally unsound. Water penetration occurs into the roof space and the safety of the electrical wiring is compromised.” “Sponginess of the floorboards evidences pest infestation requiring assessment for replacement and there is excessive movement noted in some areas of the flooring.” “Provision for use of electrical appliances is insufficient and the fixed power boards in the kitchen and bathroom are not suitable, nor safe for permanent use of generally expected/acceptable loads for these utility areas. The lounge room lights do not work and a power point is coming away from the fitting. Additionally the gas supply to the oven is not working at all.” “Ms Pollock was not afforded the opportunity to do an entry report. The property was not clean and not maintained for safe and healthy habitation. Despite notice [to the applicant] for immediate repair, the front door was unable to be locked for nearly two weeks until by necessity it was fixed by and for security of the tenant. Although Ms Pollock took occupancy from 23 March 2011 she still has no keys for the rear door of her premises. Leaking taps have rotted the kitchen cupboard below the sink, an overhead cupboard is not securely fixed to the wall, the toilet cistern leaks and the seal needs urgent replacement. A safety issue exists with egress from the toilet being excessively restrictive.” “Conditions of occupation have not proven to be as advertised or discussed with your letting agent. You occupy the lower floor of the above residence and Ms Pollock was specifically told that you were not regularly residing at this address. On this basis a 70/30 split of -- 4 of 11 -- 5 the electricity costs was negotiated however you are constantly at the premises, and use your air conditioning constantly. For three weeks of her occupancy you did not avail her of sufficient privacy, spending over two weeks on a daily basis on her back deck painting. No permission was requested for this invasion of privacy.” [13] At hearing the applicant lessor, Mr Brandenburg, denied the allegations and produced evidence, which he argues, supports his position. Findings of the Tribunal [14] The standard of proof required to support a claim in the minor civil dispute jurisdiction is not as high as the standard – ‘beyond a reasonable doubt’ required in criminal matters. Instead the ‘civil standard’ requires the applicant (or respondent, in regards to her counter-application) to provide on the ‘balance of probabilities’ that the other party contravened the Act.4 The High Court case of Briginshaw v Briginshaw5 is the leading case concerning the ‘civil standard of proof.’ In this instance the Tribunal must, on hearing the evidence and in consideration of the seriousness and gravity of the case, be ‘reasonably satisfied’ or feel ‘comfortably satisfied’ it can reach ‘a correct and just conclusion’ for each complaint as alleged. A. The respondent’s Notice of Intention to Leave – Did the tenant lawfully terminate her lease agreement? [15] The covering letter attached to the Notice of Intention to Leave (referred to in paragraph 12) and served on the lessor, states “[u]nder section 305 of the Act you are given notice that the tenant intends to leave the premises on Friday 6/5/11 ending the tenancy agreement as this property is in a non- liveable state.” [16] The Tribunal notes section 305(1) of the Residential Tenancies and Rooming Accommodation Act 2008 provides for the circumstances whereby a tenant can give “notice to leave if agreement is frustrated”6 such as the premises- (a) Have been destroyed, or made completely or partially unfit to live in, other than because of a breach of the agreement [emphasis added]; (b) No longer may be used lawfully as a residence. [17] The term ‘frustration’ has a specific legal meaning and is explained in Butterworths Concise Australian Legal Dictionary as being “[t]he situation where a contractual obligation has, without default of either party,7 become incapable of being performed.” For example an intervening act has to occur – such as a flood, cyclone or fire – causing damage to a property and it has destroyed or made it completely or partially unfit to live. This is clearly not the case here. Instead the condition of the property (which is the subject of the claim) is said to have deteriorated because the respondent alleges a 4 Residential Tenancies and Rooming Accommodation Act 2008. 5 (1938) 60 CLR 336. 6 As per the heading of section 305. 7 Emphasis added. -- 5 of 11 -- 6 breach on the part of the lessor applicant8, for failing to ensure the premises were clean, in good repair, complies with health and safety requirements and fit to live in. [18] Therefore the respondent (through her agent, Ms Wendy Moulton of Building Matters) incorrectly gave notice of intention to leave under the wrong section of the Act. Notice should have thus been given pursuant to section 302 for an un-remedied breach. However, to satisfy this provision, the serving of a ‘Notice to Remedy’ is a statutory condition precedent. [19] Section 302 provides a tenant can serve a ‘Notice of Intention to Leave’ if the lessor has failed to comply, within the allowed remedy period, with a ‘Notice to Remedy Breach’. Although section 331(2)(c) allows a tenant to hand over possession on the day the ‘Notice of Intention to Leave’ was given if the premises is in a non-liveable condition – first, the tenant must issue a ‘Notice to Remedy a Breach’ to the lessor because he or she “believes on reasonable grounds that the lessor has breached a term of the agreement”.9 It is the lessor’s failure to remedy the breach (within the allowable period) which gives rise to a tenant’s right to end the tenancy agreement. [20] The Tribunal further notes Ms Pollock’s letter dated 7 April 2011 to Mr Brandenburg, whereby she sets out some of her concerns and requests he “attends to these matters…[and] be corrected within the next weeks (7 days).” However, section 325 formally requires a ‘Notice to Remedy Breach’ must be in the approved form.10 Therefore the respondent tenant’s letter is not sufficient to satisfy the procedural requirements as set out in the Act. [21] The Tribunal finds the respondent terminated her lease agreement outside the provisions of the Residential Tenancies and Rooming Accommodation Act 2008. B. The respondent’s liability for breach of a fixed term agreement [22] Annexed to the General Tenancy Agreement entered into by the parties on 23 March 2011 are both the Standard Terms as prescribed by the Residential Tenancies Authority and the Special Terms (addendum A) as agreed by Ms Pollock.11 [23] Clause 5(3) of the Special Terms makes the tenant liable to pay reasonable costs such as re-letting and advertising cost, and continue to fulfil her obligations under the agreement until a new tenant is found. 8 Section 185. 9 See section 301. 10 Section 519 permits the Chief Executive Officer to approve forms for use under the Residential Tenancies and Rooming Accommodation Act 2008. 11 The General Tenancy Agreement (above the parties’ signature) refers specifically to the “attached special terms in Addendum A - pages 9 & 10 as forming part of this agreement.” -- 6 of 11 -- 7 [24] The Tribunal is satisfied from the Owner Ledger produced by the letting agent, Space Rentals of the following charges being incurred to secure a new tenant: $100 advertising fees and a letting fee of $478.50. It can further be shown that the property was re-tenanted within a relatively short period of time after Ms Pollock’s vacated the premises; therefore the respondent’s liability for rent has been minimised by the actions of the lessor and/or his agent in securing a subsequent tenant.12 The Tribunal finds the respondent tenant liable for $1,554 in rent after vacating the premises and dismisses the aspect of her claim relating to costs incurred upon termination of the tenancy, namely: Removalist to evacuate the premises in the amount of $2,044.08; National Storage cost & merchandise in the amount of $1,170; and Travel costs from Sunshine Coast to Brisbane for work in the amount of $886.16. C. The applicant’s claim for compensation for cleaning, pest control and repair costs [25] The Tribunal places minimal weight on the handwritten receipt tendered by the applicant as proof of the quantum for cleaning. It does not have an ABN or any distinguishing features to identify the cleaner, nor does it itemise the works completed. In the absence of an exit condition report, completed by both parties, the Tribunal is not satisfied the applicant can prove that cleaning was required (in addition to the exit clean done by the respondent and her mother) in order to return the property to a similar condition when it was tenanted – fair wear and tear excluded. Hence, the applicant’s claim for cleaning costs is dismissed. [26] The applicant sought compensation from the respondent for pest control. At hearing the respondent argued the lessor should be found partially liable for the cost because his cat visited the premises and contributed to the fleas. The Special Terms of the General Tenancy Agreement requires the tenant to “fumigate as reasonably required if pets have been on the premises”13 upon vacation. Therefore it is an irrelevant consideration for the Tribunal to determine whether the applicant’s cat contributed to the fleas. [27] Because Ms Pollock owned a dog while living at the premises, she is liable as per the General Tenancy Agreement to fumigate “as reasonably required.”14 Yet although Mr Brandenburg produced an invoice from Pestmovers to undertake a termite inspection of the property (dated some four months after Ms Pollock vacated), there is no evidence to indicate that fumigation for pests – caused by the respondent’s pet – was reasonably required. The Tribunal dismisses the applicant’s claim for pest control. [28] The applicant also sought compensation for damage to multiple timber Venetian blinds which he claims was cedar – a superior quality wood and thus a more expensive blind to replace. There is no evidence to prove the 12 Discharging his duty to mitigate damage pursuant to section 421 and section 362. 13 Paragraph 4(f). 14 Ibid. -- 7 of 11 -- 8 timber was in fact cedar; instead, the Tribunal finds the wood to be Golden Oak, a mid-range quality timber. [29] To her credit Ms Pollock accepts damage to two blinds in the front bedrooms, however argues she should not be liable for the full replacement cost because the blinds are estimated to be between 14-20 years of age and past the depreciable tax timeframe of 22½ percent annually, over four years. The Tribunal accepts this argument and it is consistent with the decision of Joliffe-Martin & Anor v Ferguson & Anor [2011] QCAT 365 (MCDT 430-11) where it was found “a property and its inclusions depreciate over time.” Therefore Ms Pollock’s liability should be reduced to take into account the age of the blinds. [30] Based on the respondent’s quote from Spotlight15 to purchase two brand new Golden Oak blinds at the cost of $425.82, the Tribunal finds Ms Pollock liable for 10 per cent or $42.58 of the replacement cost. D. The applicant’s claim for unpaid utilities [31] The Tribunal dismisses the applicant’s claim for $100 arising from alleged unpaid utilities bill by the respondent. Although the General Tenancy Agreement provides for a 70/30 percent share, with the tenant paying the greater amount; there is no evidence of an invoice from a legitimate utility company listing the actual electricity and gas usage during Ms Pollock’s tenancy, nor the amount for this usage. Therefore Mr Brandenburg’s claim is not substantiated. E. The respondent’s claim for reimbursement of rent paid arising from the condition of the property [32] Above at paragraph 8 of these reasons, the Tribunal has outlined the law with respect to the lessor’s obligation to ensure the property and its inclusions at the commencement of a lease are clean, in good repair and fit to live in. [33] The condition and standard of the property and some of it’s fittings during the course of the tenancy is vigorously contested by both parties. The respondent alleges there were serious breaches which compromised her health and safety (as discussed at paragraph 12); whereas the applicant lessor, Mr Brandenburg, denied the allegations and produced evidence, which he argues, supports his position. Whether these complaints were such that the property could not reasonably be of a standard fit for habitation16 is unclear from the conflicting evidence relied on by the parties. [34] However what is clear from the evidence is that Ms Pollock appeared to have experienced some difficulty in locking the front door and using the oven during her tenancy. The respondent relies on an invoice from a locksmith to refit a deadlock and strike on the 7 April 2011, as evidentiary 15 The same company the applicant sourced a quote for the replacement cost of ‘cedar’ Venetian blinds. 16 As per the test set out above at paragraphs 9 and 10. -- 8 of 11 -- 9 support for her claim. Additionally Ms Pollock’s submissions to the Tribunal were that she orally asked Mr Brandenburg to fix the door and then later wrote to him, advising him of a “number of outstanding issues” including: “although the front door has a new lock, it does not lock the door and the house is not secure, I need a better lock to protect myself and my possessions.” [35] Specifically with respect to the oven, Ms Pollock’s written submissions to the Tribunal were as follows: “The oven was unusable the entire occupancy, only 3 of the 4 hotplates were working. Dials were worn with no visible indication of gas level or on/off, minor gas smell continually there, side of gas stove completely dislodged.” [36] Ms Pollock states she notified the applicant and he inspected the appliance; however “her request for maintenance [was] ignored.” The lessor did, however, install a gas BBQ on her rear veranda “which she never used as she has no experience in operating this type of cooking appliance.” Instead the respondent argues she had a right to use “the appliance included in her tenancy” agreement. At hearing, the lessor did not provide any substantial evidence to the Tribunal showing the said emergency repair requests were attended to. Therefore the Tribunal prefers the evidence of the respondent. [37] The General Tenancy Agreement listed the lessor applicant as the nominated repairer for any damage to the property. Section 217 of the Residential Tenancies and Rooming Accommodation Act 2008 requires the tenant to notify the lessor as soon as practicable of the damage. In cases where emergency repairs are needed, the Act does not require the notification to be in a prescribed form – simply that notice of the damage is given to the nominated repairer. It appears from the respondent’s evidence, she advised Mr Brandenburg of the potential damage to the front door and oven. [38] Further, the Tribunal is satisfied Ms Pollock’s concerns with the lock and oven would require emergency repairs. Relevant to these facts, section 214 defines emergency repairs as works needed to repair: a failure or breakdown of an essential service or applicant on premises for hot water, cooking or hearing;17 a fault or damage that makes premises unsafe or insecure;18 or a fault or damage likely to injure a person, damage property or unduly inconvenience a tenant of premises.19 [39] At this point in the tenancy, had the respondent issued a ‘Notice to Remedy Breach’, then Ms Pollock may have had grounds to terminate the lease upon serving a ‘Notice of Intention to Leave’ because of an un-remedied breach (as stated above at paragraphs 18 to 20 of these reasons). 17 Section 214(i). 18 Section 214(j). 19 Section 214(k). -- 9 of 11 -- 10 Although she continued to occupy the premises despite the lessor’s failure to appropriately attend to the requests for emergency repairs, the Tribunal is satisfied the respondent tenant should be compensated for the loss of amenity and standard of the premises. [40] Given an oven is an essential feature of a property which the tenant was unable to use, coupled with the insecurity of the property, the Tribunal is satisfied the respondent has established the grounds of her claim for a full rent reduction for the duration of her occupancy being $2,175. The respondent should also be entitled to recover the amount of $99 from the applicant for the service call she paid to have a lock smith attend to the property. [41] There is evidence the applicant has subsequently tenanted the property after Ms Pollock vacated. However there is no evidence to suggest the outstanding emergency repairs referred to herein, were not attended to prior to the new tenant occupying the premises. F. The respondent’s claim for costs [42] The QCAT Rules limit the award of costs against a party to a proceeding for a minor civil dispute, to the reimbursement of any prescribed fee paid by the applicant on filing the application for the proceeding.20 Therefore the Tribunal dismisses the respondent’s claim for the costs of her agent’s fees and the cost incurred by Pro Check to undertake a building inspection and compile a report. Similarly the Tribunal dismisses the applicant’s claim for costs incurred undertaking a structural engineers report. [43] Given both parties were able to substantiate part of their claims; the Tribunal has incorporated the cost of filing each claim in the final order. Conclusion [44] In consideration of the matters mentioned above, the Queensland Civil and Administrative Tribunal finds both parties have only partially established the grounds of their claim for the reasons outline herein. [45] The applicant’s liability to the respondent is the sum of $2,539 being: $2,175 rent reduction for loss of amenity and standard of the property during her tenancy; $99 reimbursement for the cost of a locksmith to secure the premises; and $265 for the QCAT filing fee incurred by respondent to lodge her claim. [46] The respondent’s liability to the applicant is the sum of $2,267.08 being: $1,554 rent for breaking her lease agreement; $100 for advertising fees charged by Space Property; 20 Rule 84 Queensland Civil and Administrative Tribunal Rules 2009. -- 10 of 11 -- 11 $478.50 for a re-let fee charged by Space Property; $42.58 for the partial replacement cost of Venetian blinds; $92 for the QCAT filing fee incurred by applicant to lodge his claim. [47] The order of the Tribunal takes into account the difference between each party’s liability and thus reduces the amount payable by the applicant to the respondent, by deducting the amount owed by the respondent – leaving a prima facie balance of $271.92. [48] The Tribunal further notes the amount of $1,740 lodged by the respondent at the commencement of the tenancy and is currently held in trust by the Residential Tenancy Authority as bond. The Tribunal makes an order for the release of the bond in favour of the respondent. -- 11 of 11 --