Sunners v Define Property Mooloolaba

[2013] QCATA 289

CITATION: Sunners v Define Property Mooloolaba  & Ors [2013] QCATA 289

PARTIES:	Nevenka Sunners Timothy John Sunners (Appellants)
V
Ross Cattle t/as Define Property Mooloolaba Kevin Tanner Marie Tanner (Respondents)

APPLICATION NUMBER: APL094 -13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Alexander Horneman-Wren SC, Deputy President

DELIVERED ON: 29 October 2013

DELIVERED AT: Brisbane

ORDERS MADE:

Leave to appeal is granted. The appeal is dismissed. The decision of the Tribunal of 16 January 2013 is confirmed.

CATCHWORDS:

APPEAL – MINOR CIVIL DISPUTE – where the leasees claimed compensation for damage caused in a flood event – where the leasee claimed the damage was caused by poor maintenance of drain pipes – where the Tribunal at first instance dismissed the application because the application was filed in the Tribunal more than six months after the flood event – where the leasees appealed the decision on the ground a dispute resolution notice was filed within six months of the flood event – whether the claim for compensation was out of time – whether leave to appeal should be granted

APPEAL – where the Tribunal erred in law – where leave to appeal is granted – where the appellant sought the matter be referred back to the Tribunal to be re-heard – where Tribunal at first instance considered merits of claim – whether appeal should be allowed

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 417(2), s 419(3)

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited
Cachia v Grech [2009] NSWCA 232, cited
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, cited

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited

APPEARANCES and REPRESENTATION (if any):

The Appeal Tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Mr and Mrs Sunners rented a home a Mooloolaba from Mr and Mrs Tanner, through Mr Cattle’s agency. There was a big storm on the Sunshine Coast on 21 March 2012 and Mr and Mrs Sunners’ home was flooded. On 26 March 2012, Mr Cattle gave Mr and Mrs Sunners a notice of termination because the home was unliveable. Mr and Mrs Sunners vacated over the next few days.

2. On 5 October 2012, Mr and Mrs Sunners filed an application for compensation. A Magistrate, sitting as an ordinary Member of the Tribunal, dismissed their claim because it was filed more than six months after they became aware of the breach of the lease.[1]

   [1]            Residential Tenancies and Rooming Accommodation Act 2008, s 419(3).

3. Mr and Mrs Sunners want to appeal that decision. They say that the learned Magistrate failed to consider the effect of s 417(2) of the Residential Tenancies and Rooming Accommodation Act 2008 (‘RTRA Act’), which says that a reference to making an application about the dispute issue includes a reference to a request for dispute resolution.

4. Because this is an appeal from a decision of the Tribunal in its Minor Civil Dispute jurisdiction, leave is necessary.[2] The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[3]  Is there a reasonable prospect that the appellant will obtain substantive relief?[4]  Is leave necessary to correct a substantial injustice caused by some error?[5]  Is there a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage?[6]

   [2]        Queensland Civil and Administrative Tribunal Act 2009, s 142(3).

   [3]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [4]        Cachia v Grech [2009] NSWCA 232 at 2.

   [5]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [6]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.

5. Mr and Mrs Sunners can only claim compensation if there has been a breach of the tenancy agreement. They claimed that the flood was caused by blocked drains and that the drains were blocked because of the lessors’ lack of attention to maintenance. The learned Magistrate acknowledged the possibility that the drains weren’t working properly,[7] but concluded that the property would probably have flooded in any event.

   [7]            Transcript of Decision page 3, lines 6 – 15.

6. Mr and Mrs Sunners identify the flood event as the breach of the tenancy agreement, rather than the allegedly poor state of the drain pipes. If it were otherwise, then they would have been out of time having first complained about the drains in January 2011. If the poor maintenance was the breach, then they must have known about that breach at the time of, or shortly after, that complaint. However, as they rely upon the flood event as the breach, they lodged their application within time. Mr and Mrs Sunners are correct in their submission that s 419(3) of the RTRA Act is subject to s 417(2). They lodged a dispute notice with the Residential Tenancies Authority on 4 May 2012, within six months of the flood event of 21 March 2012. The learned Magistrate is not to be criticised for failing to consider s 417(2). No one drew it to his attention: at the time the 6 month limitation was being considered in the proceedings, Ms Sunners referred only to her filing of the application in the Tribunal in October 2012. She did not refer to the dispute notified with the Residential Tenancies Authority, even though there was evidence of it in the material which the appellants filed.

7. Because the learned Magistrate erred in law in dismissing the application on the basis that was out of time, leave to appeal should be granted.

8. The appellants seek to have the matter returned to the Tribunal to be re-heard. In my view that should not occur.

9. Notwithstanding the identified error, the learned Magistrate found that the volume of water from the storm exceeded normal drainage capacity and that the home probably would have flooded in any event. The learned Magistrate applied his own experience of that rain event in assessing the capacity of the drainage. She was entitled to do so but this is not all that she acted upon. She also took note of the fact that there was flooding right across the Sunshine Coast.  She took into account the evidence of the agent that the way that the adjoining properties were landscaped resulted in water from those properties flowing towards the Sunners’ property. She found that the home would have flooded even if the drains were working properly. If there was nothing the lessors could do, then they are not in breach of the tenancy agreement and Mr and Mrs Sunners have no right to compensation.  Even if they were in breach on the findings made by the Tribunal, the breach did not cause the damage.

1. I have considered the learned Magistrate’s reasoning. The evidence is capable of supporting the learned Magistrate’s conclusion. There would be no utility in referring the matter to the Tribunal.  The appeal should be dismissed and the decision of the learned Magistrate, dismissing the application, confirmed for the reasons identified above.