Day v Gold Coast Holiday Lettings [2012] QCAT 17

CITATION: Day v Gold Coast Holiday Lettings [2012] QCAT 17 PARTIES: Linda Day (Applicant) v Gold Coast Holiday Lettings (Respondent) APPLICATION NUMBER: MCDO1245-11 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 10 October 2011 HEARD AT: Brisbane DECISION OF: Ms Williams, Adjudicator DELIVERED ON: 9 January 2012 DELIVERED AT: Brisbane ORDERS MADE: The respondent pays the applicant the sum of $4,010.50 within 28 days being: (i) $3,918.50 for the claim; and (ii) $92.00 for the filing fee paid. CATCHWORDS: Minor Civil Dispute – Consumer trader – Whether the respondent, during trade or commerce, engaged in conduct that was misleading or deceptive or likely to mislead or deceive the applicant as to the availability of advertised features offered in holiday rental accommodation Fair Trading Act 1989, s 38 APPEARANCES and REPRESENTATION (if any): APPLICANT: By telephone RESPONDENT: By telephone REASONS FOR DECISION Background [1] The applicant booked a holiday house through the respondent company for the period 22 December 2010 to 4 January 2011 (fourteen days). However -- 1 of 7 -- 2 the applicant and her family vacated the premises four days early because of the matters alleged herein. [2] Described as a „Hint of Bali‟ the respondent advertised the three-bedroom property online with inter alia the following features: a) “A Bali hut;” b) “Media room with 2 DVD players and movies… entertainment plus for the (sic) rainy days;” c) “Local telephone;” d) “Heated outdoor spa;” e) “Spa bath;” f) “Heated spa;” g) “CD player;” h) “TV reception;” and i) “Stereo.” [3] The applicant seeks a refund of the $5,990 paid for the rental on the basis: a) The aforementioned advertised features of the property “were not provided” during the period of the rental; and b) For the inconvenience suffered, while waiting for “repairs and maintenance” be undertaken at the property during the first three days of the rental period. [4] Although a formal reply to the claim was not filed in the Registry, the Tribunal notes the letter dated 20 January 2011 – in which Ms Katrina Morris on behalf of Gold Coast Holiday Lettings responded to the applicant‟s allegations and disagreed with those claims. [5] On 10 October 2011 the matter was heard by the Tribunal; with leave granted to the applicant to appear during the proceedings by way of telephone. At the conclusion of the hearing the Tribunal reserved its decision so it could consider the parties‟ oral evidence (including that of the respondent‟s witness) in addition to the documentary evidence earlier filed by the applicant. Issues [6] Section 38 of the Fair Trading Act 1989 (Qld) (the “FTA”) prohibits a person, in trade or commerce from engaging in conduct that is misleading or deceptive or is likely to mislead or deceive. Hence in simple terms, misleading means conduct which has led the other party into error – with no element of fault. The applicant submits she was mislead by the respondent‟s website as to the available features and standard of the property. [7] 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 to provide on the „balance of probabilities‟ the respondent -- 2 of 7 -- 3 contravened the Act.1 The High Court case of Briginshaw v Briginshaw2 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 against the respondent. A. The general presentation and standard of the property [8] The applicant‟s complaint and supporting evidence lists a number of issues as to the general presentation and sub-standard condition of the property. [9] In a letter to the respondent, Mrs Day states, “we were far from happy with the arrangements we found when we arrived and feel that we have been mislead by advertising on your website.”3 In particular “…we notified your organisation, upon our arrival, the premises were not well cleaned and as a result the cleaners attended the premises on both the first and second days of our stay to try and tidy the property accordingly. There was grease over the barbeque… the floors were dirty and there was food and refuse under the couch cushions and couches.” [10] In relation to the oven the applicant further states, “it stunk, smoking out the kitchen and oozing dark brown goop out of the bottom of the oven door! Obviously the inside of the oven had not been cleaned recently, and we had to use wet paper towels to wipe it out before putting our food in there to cook.”4 [11] A serviceperson, supplied by the respondent, attended the property on the third day in an attempt to rectify or identify maintenance problems such as non-working electrical items. In addition, “the rear bedroom had the curtains jammed open, giving a clear view into the ensuite and shower… we were unable to shut them until the maintenance man arrived to try to rectify this.”5 [12] The Tribunal finds it would not be unreasonable for a consumer to expect and imply6 as a term of the agreement that a property rented at $461 per night to be clean, well maintained and presented in a certain standard. [13] It is clear from the evidence Gold Coast Holiday Lettings require occupiers to leave the property in a “similar condition on arrival” so as to “maintain a good standard for our guests”.7 Failure to do so may cause the bond to be forfeited to “cover any additional costs incurred including but not limit to, any breakage, damage or excess cleaning requirements.”8 Therefore it follows, occupiers or consumers such as the applicant, when taking possession of 1 Fair Trading Act 1989. 2 (1938) 60 CLR 336. 3 Letter dated 10 January 2011. 4 Ibid. 5 Ibid. 6 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; Summers v Commonwealth (1918) 23 CLR 144. 7 Respondent‟s Term & Conditions, emailed to applicant on 13 October 2010 at time of booking. 8 Ibid. -- 3 of 7 -- 4 the property should reasonably expect the premises to be in a clean, well- maintained condition. [14] The weight of evidence produced by the applicant causes the Tribunal to be reasonably satisfied that the general presentation and standard of the property was as claimed by the applicant. Consequently, rectification works were required to remedy these issues. [15] Although the respondent argues the outstanding issues were later rectified, Mrs Day seeks compensation for the inconvenience suffered, while waiting for “repairs and maintenance” be undertaken at the property during the first three days of her family‟s short-term holiday rental period. [16] The respondent‟s terms and conditions provide theft and loss is the tenants‟ responsibility during their stay and the owners of the property are absolved of any responsibility for the tenant‟s personal property. Therefore the Tribunal finds it reasonable of the applicant to remain on the premises to supervise cleaning, maintenance, inspections and repairs. [17] Consequently Mrs Day and her family‟s quiet enjoyment and privacy of the property was impeded, as would have their holiday plans away from the property during this three (3) day period. To seek a full refund for this period in the amount of $1,383 is reasonable in the circumstances. B. The absence of advertised features [18] On 8 December 2010 the applicant paid the remaining balance of $3,745; thus making the total payment for the holiday rental $5990. The contractual consideration was for the enjoyment and use of all the advertised features of the house during the fourteen (14) days rental period. Mrs Day seeks a refund of monies paid arising from the respondent‟s failure to provide certain features. In particular, the Tribunal notes: The Bali Hut [19] One of the main advertised features noticeably absent from the property was a usable Bali Hut. The applicant submits “the property was advertised with a Bali Hut, in fact advertised as „A Hint of Bali”, which per images on [the respondent‟s] website appears to offer a great deal of privacy, but upon our attendance at the premises we immediately noted it was not available.” [20] The respondent admits to removing the thatching under Council orders due to a fire hazard prior to occupancy. However Gold Coast Holiday Lettings argue, “the same structure is there, the only difference is the thatching on the edges” is removed and the “same undercover areas are there and exist.” [21] The Tribunal finds this statement incorrect. From the applicant‟s photographs the entire thatching is removed and hence, the hut is without a roof. What remained of the so-called Bali Hut were four corner posts and the structural crossbeams upon which the thatching once rested. Without roofing the hut provided no “undercover area” as suggested by the respondent and therefore would not be able to provide shade to anyone sitting underneath -- 4 of 7 -- 5 the structure. As a feature of the property, the remains of the “Bali Hut” would provide limited practical use to an occupant. [22] The respondent‟s standard terms and conditions for the holiday rental includes the following clause: “The owners will make every effort to ensure the property is available as booked. However the owners reserve the right to make alterations to bookings due to unforeseen circumstances.”9 [23] Although the notification by Council to remove the thatching may have been unforeseen, this event occurred “weeks”10 prior to the applicant‟s occupancy. From the evidence available at hearing, the Tribunal is not satisfied Gold Coast Holiday Lettings made “every effort”11 during the intervening period to ensure the property was available in the condition it was booked by the applicant. For example, limited evidence was provided to the Tribunal as to the attempts, if any, by the respondent to replace the thatching with non- flammable materials or rectify the structure in such a way so the advertised feature could still be offered to the occupants whilst complying with Council regulations. [24] Furthermore the Tribunal notes the failure of the respondent to amend its online advertisement of the property. As of 4 January 201112, Gold Coast Holiday Lettings continued to describe the property as a „Hint of Bali‟, with a Bali Hut listed as a feature and photographs incorrectly depicting an intact hut (complete with thatched roofing). [25] The Tribunal is satisfied the respondent‟s conduct is misleading or likely to mislead or deceive a consumer as to the existence of an undercover outdoor feature, namely a Bali Hut. The “heated spa” and “spa bath” [26] The applicant submits the wording of the respondent‟s website is misleading in so far as it advertises both a “heated spa” and “spa bath” as two separate features of the holiday house. The Tribunal accepts the argument that this gives the appearance that these are two different features, namely a spa bath and an outdoor spa, when in fact only the latter exists. Although the respondent defends the advertisement‟s wording and maintains the “add (sic) states outdoor heated spa bath”13 – this clearly is not correct. [27] Nowhere in the advertisement does it state “outdoor heated spa bath”14 as inaccurately argued by the respondent. Instead the features of the property 9 Excerpt of Terms and Conditions, emailed to applicant on 13 October 2011. 10 The applicant alleges in her letter to the respondent dated 10 January 2011 of being informed “by Kellie, that it [the thatching] had been pulled down “weeks” before due to complaints by the neighbours to Council.” 11 A contractual undertaking by the respondent, as stated in its terms and conditions – see footnote 9. 12 Evidenced by a print out of the respondent‟s website dated 4/01/2011 – produced at hearing by the applicant. 13 The respondent‟s letter of reply to the applicant, dated 20 January 2011. 14 In the respondent‟s letter of reply to the applicant, dated 20 January 2011, Katrina Morris states: “In regard (sic) to a spa bath, the add (sic) states an outdoor heated spa bath, at not time was an inside spa bath ever mentioned…” -- 5 of 7 -- 6 are listed as both a “spa bath” and “heated spa” as consistently submitted by Mrs Day – these descriptions are in addition to a reference in the proceeding paragraph of the advertisement to an “outdoor spa.” It is the repetitious wording of the advert that is said to have caused the applicant to believe there were two different spa features. [28] Because section 38 of the Fair Trading Act 1989 does not require an element of fault be proven, it is irrelevant whether the respondent‟s advertisement was worded as a result of poor drafting or an intention to mislead or deceive the consumer. The fact that the applicant was misled or deceived by the respondent‟s conduct is sufficient. The CD Player and Local Telephone Facilities [29] Despite being advertised as having a CD player and local telephone access Mrs Day argues these facilities were non-existent; consequently causing her to use her mobile phone to make local calls (charged at the higher rate). Minimal submissions and supporting evidence was given by the respondent to refute these claims. Therefore from the evidence available at hearing, the Tribunal is satisfied the applicant was mislead, by virtue of the advertisement, of the presence of these features at the property during the rental period. Is the respondent liable for loss of advertised features caused by electrical storm damage? [30] The applicant claims several electrical items in the property were not working, either during part or the entire rental period including: No lounge, dinning room, media room lights or fans; No local television reception; Oven – timer later reset; DVD player in media room non-function; DVD player in lounge room persistent static noise; Wii non-function – later replaced. [31] The respondent admits having knowledge “a few days prior to [the applicant] coming to the home” of electrical damage to the property with an “electrician advising lighting has (sic) hit the home.”15 This was not communicated to the applicant until the third day of the rental period, when a serviceperson (called „Rick‟) acting on behalf of the respondent company attended the property. [32] The Tribunal does not accept the respondent‟s claims that “everything electrical which (sic) we had fixed asap.”16 It may be the case that Gold Coast Holiday Lettings attempted to rectify many of the electrical issues during the applicant‟s occupancy, but the question remains why weren‟t the problems attended to immediately upon becoming aware of the lighting strike and prior to the occupancy? 15 Respondent‟s letter of reply to the applicant, dated 20 January 2011. 16 Ibid. -- 6 of 7 -- 7 [33] If rectification works were undertaken immediately, the availability of tradespersons would not have been impeded by the Christmas public holidays. Furthermore, evidence before the Tribunal indicates not all of the repairs required a qualified electrician to remedy – with blown light bulbs requiring changing, the oven timer and fuses needing to be reset, electrical items needing to be replaced (such as the Wii). Instead, the respondent‟s agents attended to these items during the applicant‟s occupancy and at the applicant‟s insistence – which meant Mrs Day and her family‟s quiet enjoyment of the property and all of its features was affected. [34] The Tribunal notes the respondent‟s standard terms and conditions whereby: “The owners will make every effort to ensure the property is available as booked. However the owners reserve the right to make alterations to bookings due to unforeseen circumstances.”17 [35] Damage incurred by an electrical storm could possibly come within the ambit of an “unforseen circumstance”.18 However the Tribunal is not satisfied Gold Coast Holiday Lettings made “every effort”19 (as it had contractually undertaken to do) prior to the applicant acquiring possession, to rectify the damage caused by the alleged electrical storm and “ensure the property [was] available as booked”.20 Therefore the respondent breached a term of its own contract and is liable for the loss of advertised features caused by an alleged electrical storm. [36] Although the availability of some advertised features was not available during part or the entire rental period, other aspects of the property were still usable. Hence, the applicant is only entitled to a partial refund of 30% of the daily rate. Conclusion [37] For the reasons discussed above, the Tribunal finds the respondent, during trade or commerce, engaged in conduct that was misleading or deceptive or likely to mislead or deceive the applicant as to the availability of certain features offered in a holiday rental accommodation. The Tribunal‟s order takes into account: (i) A full refund to the applicant for the first three days of the rental in the amount of $1,383 while waiting for “repairs and maintenance”21 to be undertaken at the property; and (ii) A partial refund of 30% to the applicant in satisfaction of the reduced use and amenity of the property during the remaining eleven (11) days of the rental – being the amount of $2,535.50. 17 Excerpt of Terms and Conditions, emailed to applicant on 13 October 2011. 18 Ibid. 19 Ibid. 20 Ibid. 21 As per the claim filed by the applicant and restated at paragraph three (3) of these Reasons. -- 7 of 7 --