Tenancy Case Summaries (Compensation Applications)

The time to make an application under s 419 runs from the date of breach, not from the date of issuing a Form 11 Notice to Remedy Breach.

Section 94 RTRAA rent decrease claims or s 429 RTRAA general dispute claims are not alternatives to a claim based on a breach of the residential tenancy agreement under s 419 RTRAA.

Facts

Upon entering possession, the tenant discovered and reported maintenance issues. The tenant was dissatisfied with the lessor’s response and filed a residential tenancy application against the lessor, claiming compensation and rental reduction.

Decision

At first instance, the tenant’s claim was dismissed. The adjudicator found that more than six months had elapsed after the tenant became aware of the breaches before she took action. The tenant sought leave to appeal on the grounds that the adjudicator erred in:

(a) finding her complaints were out of time under s 419 of the RTRAA;
(b) refusing alternate relief under s 94 RTRAA; and
(c) refusing alternate relief under s 429 RTRAA.

The tenant argued there was no breach of a residential tenancy agreement until the lessor refused to remedy an identified maintenance issue. The Tribunal held that under s 185 RTRAA, a lessor is in breach of maintenance obligations from the start of the tenancy if the premises are not in good repair, and not from the date of issuing any Form 11 Notice to Remedy Breach. The Tribunal also found that the rent decrease claim under s 94 RTRAA was not an alternative to a claim based on a breach of a residential tenancy agreement under s 419 RTRAA. The Tribunal also found the general dispute claim under s 429 RTRAA was a ‘general catch-all provision’ which would not override the special provisions in s 419.

The Tribunal thus dismissed the tenant’s application for leave to appeal.

You can read the full decision here: Khromeenkova v PRD Robina Nationwide & Anor [2021] QCATA 35

The s 419 RTRAA time limit does not apply to rent decrease claims under s 94 RTRAA. While this is an attractive alternative to parties time-barred under s 419, note as in Khromeenkova above that a s 419 RTRAA claim cannot be argued as a s 94 RTRAA claim.

Facts

The tenants vacated their lease early. Among other things, Tribunal ordered that the lessor pay $1,125 to the tenants as retrospective rent reduction for an unrepaired dishwasher during the tenancy. The lessor sought leave to appeal.

Decision

The lessor argued the Tribunal erred in awarding the rental reduction because the tenants made the claim outside the six-month time limit under s 419 RTRAA. The Tribunal found that because the tenants’ claim was not for an order from a breach of the tenancy agreement, but rather for a rent decrease from loss of amenity under s 94 RTRAA, the time limit did not apply.

Although the s 419 time limit did not apply, the Tribunal allowed the lessor’s application for leave to appeal on the grounds that s 94 RTRAA did not permit a retrospective rent reduction.

You can read the full decision here: Hurst v Pyatt [2017] QCATA 101

The applicant need not know the actual cause of a breach to become ‘aware of the breach’ for the purposes of s 419(3) RTRAA.

Facts

The tenants complained about water supply to the property ‘as early as days after moving in’. Near the end of the one-year tenancy, the tenants excavated around the base of the water tank to investigate, and found the tank had a hole. The tenants made a dispute resolution request to the Residential Tenancies Authority (RTA) on 25 July 2018.

Decision

At first instance, the adjudicator dismissed the tenants’ application as being out of time under s 419(3) RTRAA. The tenants sought leave to appeal, arguing there was nothing on which to base a compensation claim until the end of the tenancy when they discovered there was a hole in the water tank. The Tribunal held the adjudicator was correct not to hear and determine the tenants’ application. It was not necessary for the tenants to know the cause of the water supply issues to bring a claim in relation to them.

The Tribunal thus dismissed the tenants’ application for leave to appeal.

You can read the full decision here: Wells & Ors v Curtis [2020] QCATA 32

The term ‘application’ in s 419(3) RTRAA includes the making of a dispute resolution request to the RTA by virtue of s 417(2).

Facts

The tenant and lessor entered into a three-month holiday lease for an apartment. During the lease, the tenant left the apartment and the lessor put the tenant’s goods into storage. The tenant collected some of the goods, but the balance went missing. The tenant made a dispute resolution request to the RTA within the six-month time limit imposed under s 419(3) RTRAA, The tenant then made an application to the Tribunal outside of the six-month time limit.

Decision

At first instance, the Tribunal dismissed the tenant’s application. The tenant sought leave to appeal. Although the tenant’s application to the Tribunal was outside the six-month period prescribed by s 419(3) RTRAA, s 417(2) RTRAA states that a reference to the making of an application includes a reference to the making of a dispute resolution request to the authority about the dispute.

The Tribunal thus allowed the tenants’ application for leave to appeal.

You can read the full decision here: Scholefield v High Surf Resorts Pty Ltd [2013] QCATA 157

The Tribunal’s general power to extend time under s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) does not apply to the six-month time limit under s 419(3) RTRAA.

Facts

After the tenants vacated the property, the lessor’s agents conducted a final inspection and ascertained that cleaning, painting and glass replacement was required.

Ten months later, the lessor claimed $4,393.60 in compensation for alleged breaches of the residential tenancy agreement by the tenant.

Decision

The Tribunal considered whether s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCATA) could provide relief from the time limitation imposed .

The Tribunal found that while the Tribunal has a general power to extend time under s 61 of the QCATA, that provision must be read in conjunction with the RTRAA.

The language used in s 419(3) RTRAA is mandatory, such that the RTRAA is prescriptive about when proceedings must be commenced.

The Tribunal thus dismissed the lessor’s application for compensation.

You can read the full decision here: Place West Rentals v Brooks and Anor [2012] QCAT 511

The Tribunal has no discretion to extend the six-month s 419 RTRAA time frame. The Tribunal is prepared to impute knowledge of a breach of a tenancy agreement to a tenant.

Facts

The tenants filed a claim for compensation for loss of amenity in relation to air-conditioning, gas cooking facilities and security issues (as the windows could not be closed). The lessor admitted the property was advertised as air-conditioned in error.

Decision

At first instance, an adjudicator made orders the tenant be credited with $330 for damages for loss of amenity and that the windows in the property be made secure by the lessor. The lessor sought leave to appeal. The Tribunal found the adjudicator did not have regard to the time limit in s 419 RTRAA, and held ‘the tribunal has no discretion to extend the time frame’. The Tribunal found the lack of air-conditioning and gas were known to the tenant from the time she entered into the premises, and that it was ‘reasonable to infer’ the tenant became aware of the window closure issues at the same time.

The Tribunal thus allowed the lessor’s application for leave to appeal.

You can read the full decision here: Caruana v Harcourts Proactive Results Pty [2012] QCATA 55

The Tribunal has no discretion to extend the six-month s 419 RTRAA time frame.

Facts

Upon entering into possession, the tenants found the property was unfit to live in. The lessor agreed the tenants could terminate their tenancy. The tenants had already arranged for their furniture and goods to be transported to the home. When the tenancy was terminated, they placed their furniture and goods in storage. Eight months after the tenancy was meant to commence, the tenants filed a claim for compensation.

Decision

At first instance, the Tribunal ordered the lessor to pay the tenants $4,190. The lessor sought leave to appeal, on the grounds the tenants’ application for compensation was out of time under s 419 RTRAA (among other things). The tenants resisted the lessor’s application on the basis the lessor did ‘not take [the] case seriously until the order for compensation was made’. The Tribunal held the operation of ss 416 and 419 RTRAA is ‘strict’, and that the tenants knew of the condition of the tenancy eight months prior to filing their claim.

The Tribunal thus allowed the lessor’s application for leave to appeal.

You can read the full decision here: Realgo Investments Pty Ltd v Daley [2013] QCATA 211

The Tribunal has no discretion to extend the six-month s 419 RTRAA time frame. The time to make an application under s 419 runs from the date of breach, not from the date of failure to respond to a maintenance request.

Facts

The leased premises sustained termite damage in 2013. The lessor eradicated the termites, but damage to the windowsill in the main bedroom was not repaired. In May 2014, the tenants filed a claim for compensation for loss of enjoyment.

Decision

At first instance, the Tribunal found that the six months of the s 419 RTRAA time frame applied from May 2014 when the lessor failed to repair the termite-damaged window in response to a maintenance request. The lessor was ordered to pay $3,000 in compensation. The lessor sought leave to appeal, on the grounds (among other things) that the tenants failed to file their claim within six months of the breach of the tenancy agreement. The Tribunal held the s 419 six-month time frame requirement ‘is not procedural, but substantive. It defines the limits of the tribunal’s jurisdiction’. The Tribunal held that ‘breach’ could not be narrowly interpreted to just failure to repair the window in response to the 2014 maintenance request. Rather, the ‘breach’ was failure to fix the damage. There was evidence the tenants had asked for the damage to be fixed on various occasions throughout 2013, indicating they were aware of the breach before the six-month period preceding the application.

The Tribunal thus allowed the lessor’s application for leave to appeal.

You can read the full decision here: KTK Property Management v Ho [2015] QCATA 6

When responding to an application by a lessor for compensation in respect of alleged breaches, tenants should make submissions in relation to a lessor’s knowledge of each specific breach.

Facts

On 7 September 2017, the tenants vacated the leased property. On 10 November 2017, the tenants filed an application for orders under ss 94, 185, 419 and 420 RTRAA. On 2 March 2018, the lessor filed a counter-application seeking break-lease costs, a ‘management preparation fee’ and repair costs totalling $9.065.

Decision

At first instance, the Tribunal ordered the tenant pay the lessor $6,615.50 for repair costs. The tenants sought leave to appeal on the grounds the lessor’s claims were time-barred under s 419(3) RTRAA. In respect of laundry repair costs, there was an invoice for associated investigation and repair work dated 21 August 2017. The lessor was therefore aware of the breach outside of the six-month period preceding its application. In respect of costs for replacing a water tank pump, the lessor’s knowledge was indicated by prior maintenance and conversations with the tenants regarding keeping the tank filled. The tenants made no submissions at first instance in relation to the lessor’s costs for reinstatement of the clothesline, and were not permitted to rely on fresh material. There was therefore nothing to suggest the landlord had become aware of that problem prior to the six-month period preceding his application.

The Tribunal thus allowed the tenants’ application for leave to appeal (bar the clothesline) and adjusted the sum of $6,615.50 to $3,208.

You can read the full decision here: Hessey-Tenny & Anor v Jones [2020] QCATA 9