Evers v Professionals Real Estate Clayfield [2011] QCATA 69

CITATION: Evers v Professionals Real Estate Clayfield [2011] QCATA 069 PARTIES: Mr Gregory Michael Evers (Applicant/Appellant) v Professionals Real Estate Clayfield (Respondent) APPLICATION NUMBER: APL246-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 5 April 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS: Minor Civil Dispute – infestation of pest in home unit the subject of a residential tenancy agreement – whether responsibility of lessor – whether breach Queensland Civil and Administrative Tribunal Act 2009, s 142(3) Residential Tenancies and Rooming Accommodation Act 2008, s 185(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 Fox v Percy (2003) 197 ALR 201 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION [1] Mr Evers was a tenant in a residential unit at 6/49 Wagner Road, Clayfield. The respondent is the managing agent. Mr Evers, and his family had been in the unit since May 2008 and had renewed the tenancy agreement so that the tenancy expired on 11 July 2010. [2] On 21 May 2010 Mr Evers gave the Professionals a form 13, Notice of Intention to Leave. The basis of the Notice was that the home unit was infested with pests, in particular bedbugs. The Notice indicated that they would vacate the premises on 4 July 2010. At the time the Notice to Leave was given, the weekly rent was $320. [3] On 24 June 2010 the Professionals filed an application for a minor civil dispute – residential tenancy dispute in the Tribunal claiming compensation which included, arrears of rent of $960, rent to the end of the lease, being 11 July 2010 $822.85, pest treatment of $390 and cleaning for $90. Other claims were made, including screen repairs but these were abandoned by the Professionals at the hearing. An additional claim was made for damage to a garage door when Mr Evers vacated the premises of $950. [4] On 13 September 2010 a hearing was conducted in the Tribunal where one of the principle issues in dispute was whether it was the tenant’s responsibility to ensure that the unit was pest free, or whether that responsibility rested with the lessor. No technical evidence was produced before the learned Tribunal Member about bedbug infestation other than what both Mr Evers, and Ms Watts from the Professionals, were told by various pest control businesses. The Tribunal Member found that internal pest control was the responsibility of the tenant, Mr Evers, and therefore, it was not a valid ground upon which he could give a Notice to Leave. [5] The result of that finding is that Mr Evers was responsible not only for the arrears of rent to which clearly there was no defence, but also the rent payable until the end of the tenancy period because the respondent was unable to locate an alternate tenant. That resulted in a finding that Mr Evers was to pay $1,782.85 in rent. Mr Evers conceded the carpet cleaning cost of $135.00 and the general cleaning cost of $90.00. It seems also that there is no dispute as to the callout fee to open the damaged garage door of $99.00. What is in dispute, is who should bear the responsibility for the pest treatment cost of $390.00. I should say for completeness Mr Evers does not accept the rent claim to the end of the lease. [6] The transcript of evidence reveals that both parties made submissions as to the cause of the bedbug infestation. Doing the best he could on the day with the evidence before him, the learned Tribunal Member concluded that the infestation was introduced through human activity rather than from, as was suggested by Mr Evers, the pest boring through walls and/or coming in through the ceiling and cornices etc. As was -- 2 of 4 -- 3 pointed out by the Tribunal Member, it is somewhat remarkable that Mr Evers put up with this infestation without taking any serious remedial action from February 2010 until he vacated the premises. The learned Tribunal Member was entitled to rely on the evidence of Ms Watts that: “I can rely on the evidence that has been provided to me by Ms Watt. Even though it may be hearsay _ amalgamated it fits in with my knowledge of the situation as well.” [7] That is the finding of fact which, when one has regard to all of the evidence put before the learned Tribunal Member, and filed in support of the application for leave to appeal, is a finding which was entirely open on the evidence before him. [8] Having made the order that Mr Evers pays to the Professionals the sum of $2,586.85, which includes a filing fee of $90.00 Mr Evers then appealed to the Tribunal. As indicated, leave is necessary and will only be granted if some error on the part of the Tribunal Member can be identified.1 Leave will also be granted if there is a reasonable prospect that the applicant will obtain substantive relief2, here that is relief from payment of rent and the cost of reinstating the premises or to correct a substantial injustice3. Leave will also be granted if it is necessary to correct some substantial injustice. [9] It is well established that a finding of fact will not usually be disturbed on appeal if the facts found or inferred by the Tribunal are supported by the evidence.4 [10] Subsequent to the filing of the application for leave to appeal, both parties have filed lengthy submissions but those submissions simply seek to reagitate the very matters that the Tribunal Member was required to consider and made findings about. [11] In his grounds of appeal, Mr Evers relies on section 185(3) of the Residential Tenancies and Rooming Accommodation Act 2008 which imposes an obligation on the lessor to maintain premises that are fit for a tenant to live in, are in good repair and ensure the health and safety of persons entering into the premises. Mr Evers suggested that the lessor is in breach of this statutory obligation. Once again one has to have regard to the findings of the Tribunal Member. The introduction of these pests into the unit were not caused or contributed to by the actions of the lessor nor the lessor’s agent. There is also a responsibility on the tenant to ensure that the premises are properly maintained. This would include regular treatment for insects and pests such as cockroaches, fleas and spiders. I should also point out that none of these matters were raised before the Tribunal Member. 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 2 Cachia v Grech [2009] NSWCA 232 at [13]. 3 QUYD Pty Ltd v Marvass Pty Ltd (supra). 4 Fox v Percy (2003) 197 ALR 201 at 207. -- 3 of 4 -- 4 [12] Mr Evers has been unable to identify any error on the part of the Tribunal Member and no error is apparent, therefore leave to appeal must be refused. -- 4 of 4 --