• 14 Jul 2020
  • 7 min read
  • By Andrew Persijn - Special Counsel, Carter Newell

QCAT update: Residential tenancy disputes on appeal

QCAT, Dispute, Residential Tenancy, RTA

This article considers two recent decisions by the Queensland Civil and Administrative Tribunal (QCAT) in its appellate jurisdiction, which seeks to provide property managers with information and guidance when dealing with residential tenancy disputes in the Tribunal.

Decision 1: Varnakulasingam & Anor v Singh [2020] QCATA 35

At first instance, the Tribunal awarded compensation to the tenant in the amount of $5,120 following a flood at the property that had damaged some of the tenant's possessions and impacted the occupation of the property. The Adjudicator hearing the matter in the Tribunal awarded the tenant:
  • $1,650 for damage to a sofa;
  • $1,000 for damage to a mattress;
  • $200 for additional electricity use; and
  • $1,770 in compensation, the equivalent of six weeks' rent.
The Lessor and property manager appealed the Tribunal's decision on the following grounds:
  1. The Adjudicator hearing the matter in the Tribunal hadn't read the Lessor's counter-application or any of the Lessor's evidence;
  2. The compensation awarded for damage to the sofa and damage to the mattress was excessive given the evidence before the Adjudicator;
  3. The compensation awarded for increased electricity was excessive given the lack of evidence before the Adjudicator; and
  4. The compensation of $1,770 awarded to the tenant was excessive and should've been dealt with as a rent reduction under section 94 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the RTRA Act).
Ground 1

The Appeal Tribunal obtained a transcript of the initial hearing in the Tribunal and noted the Adjudicator had informed the parties that he hadn't considered the material prior to the hearing. However, the Adjudicator gave the parties the opportunity to present their case on the day, including an explanation of the counter-application by the Lessor.

The Appeal Tribunal held that this was a "very simple claim" and there could be no disadvantage suffered by the Adjudicator not reviewing the material prior to the hearing.

Grounds 2 and 3

The tenant presented evidence at the initial hearing that the damaged sofa formed part of a lounge suite, which cost $3,300 when it was purchased new three years earlier. The tenant didn't have a photograph of the damaged sofa, but described it from photographs of the matching chairs from the lounge suite.

Further, the tenant maintained that his family had purchased the lounge suite for him as a gift. The Lessor and property manager submitted that the Adjudicator shouldn't have accepted the tenant's evidence in circumstances where he wasn't able to produce photographs or a receipt for the purchase of the sofa.

The Appeal Tribunal held that there was no reason why the Adjudicator should not have relied on the tenant's evidence in this regard. The Appeal Tribunal noted that when determining the correct amount of compensation, it appeared that the Adjudicator must have considered that the sofa would be hard to replace with a second hand version as it was part of a larger suite; so the tenant would have to purchase a new sofa or replace the whole lounge suite, which would cost more than the compensation awarded.

In relation to the damaged mattress, the Appeal Tribunal held that even though the tenant didn't produce a photograph of the mattress or evidence of the cost of a replacement, there was no reason for the Adjudicator to reject the tenant's evidence that it was a queen size mattress costing $1,800 when purchased three years earlier. The Appeal Tribunal also stated that the Adjudicator was justified in allowing for depreciation when determining compensation for the damaged mattress.

In relation to the compensation for increased electricity, the Appeal Tribunal noted that the information supplied in support of the appeal differed from the information presented to the Adjudicator at the initial hearing. Accordingly, the Appeal Tribunal held that the Adjudicator was entitled to rely on the case presented at that time.

Ground 4

The Lessor and property manager submitted that the tenant's claim for compensation ought to have been considered as a claim for rent reduction under section 94 of the RTRA Act. While the Lessor and property manager argued that a Notice to remedy breach should've been issued by the tenant, as was done in Rental Express Pty Ltd v Finch &; Sweeney,[1] they didn't state what followed from failing to provide one.

Rental Express was concerned with the termination of a tenancy agreement in accordance with the RTRA Act, which was not the case with the tenant's claim for compensation in this matter. The Appeal Tribunal noted that it's incorrect to state that a compensation claim cannot be brought without first having provided a notice to remedy breach.

As for the amount of compensation, the Lessor and property manager submitted that only the lounge room was affected and the tenant still had full use of most of the property. However, the Appeal Tribunal noted that the flooding was unusually severe and it must've made living in the property "extremely miserable over several weeks".

Accordingly, the Appeal Tribunal held that the Adjudicator's decision wasn't "outside the applicable principles" taking into account the extreme inconvenience and distress caused to the tenant and his daughter.

Leave to appeal was refused and the appeal failed.

Decision 2: McGrath Estate Agents v Korattiparambil & Anor [2020] QCATA 68

The property manager, on behalf of the Lessor, commenced residential tenancy dispute proceedings in the Tribunal seeking the costs of replacing a kitchen rangehood and damaged tiles from the rental bond for the property.

At the initial hearing of this matter before Justices of the Peace in the Tribunal, the tenants raised complaints about the air conditioning in the property as well as renovations carried out to a unit above them, which allegedly resulted in loss of amenity.

The Justices of the Peace awarded the property manager $603.80 for the replacement rangehood and cost of replacing the damaged tiles, but also awarded the tenants $1,400 for loss of amenity due to defective air-conditioners and the renovations performed in the unit above.

The property manager appealed the Tribunal's decision in circumstances where the tenants were awarded compensation, but had not filed an application or counter-application seeking the same. The Appeal Tribunal held that while a claim for loss of amenity is made pursuant to section 94 of the RTRA Act, where there was no application to the Tribunal by the tenants, there was no scope for the Justices of the Peace to award compensation.

Accordingly, the Appeal Tribunal held that the error in law made by the Justices of the Peace was clear and leave to appeal was granted. The order of the Justices of the Peace awarding the tenants $1,400 for loss of amenity was set aside.

The appeal decisions are a timely reminder for property managers to ensure that they familiarise themselves with all aspects of their cases before the Tribunal. Property managers should ensure that they focus on the facts of their case and provide as much evidence as possible in support of their submissions.

While all parties involved in residential tenancy disputes before the Tribunal must represent themselves (some exceptions apply), they're of course always able to seek legal advice in regard to all aspects of a dispute. If property managers have any concerns about a residential tenancy dispute, including compliance with the RTRA Act or any other relevant legislation, it's strongly recommended that they seek legal advice.

[1] [2015] QCATA 149.

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