Murphy v Werchon [2025] QCAT 425

LANDLORD AND TENANT - RESIDENTIAL TENANCY LEGISLATION - OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES - OTHER MATTERS - where tenant made an application for compensation with respect to rent increase - where tenant made several claims for compensation arising from water damage and mould - whether claims are statute barred - whether landlord keep premises in good repair - whether the property was fit for habitation

Residential Tenancies and Rooming Accommodation Act 2008 (Qld)

Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277

Carney v Home Rentals Queensland [2020] QCATA 119

Challands & Anor v Jackson [2014] QCATA 330

Hayes v Twomey Schriber Property Group [2022] QCAT 32

Sheehy v Hobbs [2012] QSC 333

Wise v Ray White Nerang [2021] QCATA 71

• [1] These proceedings relate to a claim for compensation from a long-term tenancy at 69 Mapleton Road, Nambour. The most recent tenancy started in November 2024 and lasted for 12 months.
• [2] The tenant submitted a dispute resolution request on 3 April 2025. The Notice of Unresolved Dispute ('NURD') was issued on 9 May 2025. Proceedings commenced in the tribunal on 26 May 2025.
• [3] The agent confirmed in an email that the NURD related to compensation and repairs that were not specified, and they requested details (Email dated 18 June 2025).
• [4] The initial request for a rent reduction is mentioned in an email dated 4 April 2025.
• [5] The Applicant's email formally requests compensation for increased rent due to ongoing unresolved maintenance issues and seeks provision of temporary accommodation until necessary work, such as mould remediation, is completed. It also requests a rent reduction until the problems are effectively addressed. The email also seeks compensation for loss of goods and incurred costs.
• [6] A claim for compensation for rent exceeding $16,000 was made.

• [7] Regarding the loss of goods, a detailed summary titled "loss of goods" was provided by the Applicant following the hearing. While the value of the amounts claimed seems reasonable, I cannot be convinced on a fair and reasonable basis that the damage to the goods occurred due to an event known to the Applicant six months prior to submitting the notice of unresolved dispute to the RTA. A thorough review of the extensive records kept by the applicant shows that although it is possible that mould or water damaged the items mentioned, it is also likely, and I believe more likely than not, that the damage happened outside of the six-month limitation period that applies.

• [8] The claim for temporary housing or compensation while work was being done resulted in a credit to the rent ledger for about seven days (rent ledger provided by the agent, marked as Attachment "O"). On a prior occasion, there was another adjustment to the rent ledger. There was also an offer to contribute to the cost of moving belongings (Email from the agent dated 7 April 2025).
• [9] The tenant is not entitled to temporary accommodation, and the lessor also declined this at the time for the same reason.[1]
• [10] The detailed response from the agent makes it clear that they proactively engage people to do work when notified and re-attend when notified of problems.

1. The tenant did not mitigate their loss. He failed to accept reasonable offers to cover the cost of moving items, which apparently caused a delay. On another occasion, the contractor arranged for a professional cleaner after the work was completed. The schedule provided by the agent on 5 August states that, in relation to the section 419 claim, the lessor appears to have acted reasonably given the circumstances. That is all they needed to do.[2]

• [12] A claim for a rent reduction, as consistently expressed in the proceedings, was based on rent paid that should not have been paid due to the condition of the premises.

1. As I explained at the hearing, these types of claims are typically dealt with under section 94 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ('the Act') and are usually presented as claims for a reduction in rent on the rent ledger because of the condition of the premises being affected by a breach of section 419 or a substantial reduction in the standard or amenity. The applicant's case was presented as one where he had paid too much rent when entering into his tenancy agreements, considering the problems experienced and how this had impacted his ability to use the premises. A review of those claims and the documents provided by the respondent shows that the respondent did not make a claim under section 94, despite the discussion I had with the tenant during the hearing.[3] I believe it would be a denial of procedural fairness to treat the claim as a section 94 claim. Therefore, although it was discussed at the hearing, I do not think it would be procedurally fair to allow the application to be recast, particularly when careful attention is given to the response material lodged on 5 August 2025 by the agent.

• [14] Given the reductions offered by the landlord for interference with the use of the premises, I believe that was a fair and reasonable assessment of the claim for compensation due to a breach of the tenancy or resulting from the work carried out because of the condition of the premises. I would decline to order additional compensation for a breach of the tenancy.

• [15] These appear reasonable; however, they do not relate solely to matters within time, and it is evident that they partially concern matters the lessor said they would pay for. I have therefore considered that these claims were not made on a fair and reasonable basis.
• [16] I have also not allowed the claim for the industrial vacuum and dump fees for similar reasons.

• [17] The Act and the tenancy agreement include an obligation for the lessor to keep the premises in good repair. Cases in this area show that there is no breach of this obligation until the lessor has received notice of the defect and has failed to fix it.
• [18] The state of the premises at the start of the tenancy is relevant. The lessor is not in breach of any obligation to repair unless they have actual knowledge of the defect needing repair and failed to have it fixed at the beginning of the tenancy. Although some issues were known at the start of the tenancy, it appears from the chronology prepared by the agent that, when advised of issues after the tenancy began, the agent proactively managed the lessor's obligations regarding problems that arose. I don't believe it could reasonably be claimed in all circumstances that the landlord failed to fix any relevant defect. Some of the work done was carried out by third parties, and when found to be inadequate, those third parties were instructed to re-attend or conduct further work promptly.

• [19] Essentially, this isn't an absolute obligation.
• [20] This obligation is limited by the standard of reasonableness considered in light of the age, character, locality, and importantly, the effect that any breach of the obligation has on the overall condition of the house. If the house's state of repair suggests that injuries are likely or would naturally occur from normal use, it cannot be deemed suitable for human habitation.
• [21] In the case of Challands & Anor v Jackson,[5] it was stated: "Where defective housing is concerned, non-liveability is at the high end of the spectrum... Ultimately, it is a matter of fact, degree, and judgement, considering all circumstances including the rent payable, climatic conditions, the remedial ability of existing defects, the reasonable expectations of tenants in similar situations, and the age and location of the premises."[6]

1. It would not be fair or reasonable in the circumstances, considering the considerations referred to in Challands, to conclude that the lessor had failed in its obligation to ensure that the premises are fit for habitation.[7]

The condition of the property at the tenancy's commencement

• [23] One of the arguments presented by the lessor's agent was that the rent for the premises reflected their condition compared to similar premises in the relevant market. Essentially, it was argued that the premises were offered at a "reduced rental" to account for their condition.
• [24] Offering premises at a reduced rental due to their condition does not exempt the landlord from their obligations under the minimum standard requirements of the Act. As I observed during the hearing, the situation for the landlord in this regard becomes complicated.
• [25] The tenant was also in a tough spot because they were sometimes unhappy with the condition of the premises. However, they still found the property's better features appealing and decided to stay, signing a new tenancy agreement.

1. The tenant was aware of some significant issues when they signed their new tenancy. They had a few options at the start of the tenancy. One might have been to secure a rent reduction for a period to allow work to be completed, after which the rent would revert to an acceptable rate for those premises. Another option was not to renew the tenancy, given the problems. Nonetheless, they clearly chose to enter into a new tenancy. This was an informed decision they made at the time.[8]

• [27] There is a minimum standard obligation prescribed under schedule 5A of the Residential Tenancies and Rooming Accommodation Regulation 2009 (Qld).[9]
• [28] The building inspection report highlights that the premises:

(a) must be free from damp and mould caused by water ingress; and

(b) must have walls and floors that are structurally sound and in good condition.

• [29] It is not really an answer to the minimum standard obligation to say that the lessor did not seek the rent that they could because of their poor condition.

1. Going forward it is noted that the rent cannot be increased by virtue of the fact that the lessor had to comply with prescribed minimum housing standards.[10]

• [31] Having said that, I think it would be reasonably open to me to fairly conclude that the problems the tenant was experiencing may have had them considering other options before they renewed the tenancy. The rent that they could have paid was probably a consideration for them at the relevant time.
• [32] The tenant also did not terminate the tenancy because the minimum standards had not been met within seven days of occupancy. The tenant did not give notice of emergency repairs under section 214. That section defines emergency work as 'work needed for the premises to comply with the minimum standards'. There was no application to the tribunal for emergency work orders. Emergency orders can include a reduction in rent while necessary work is carried out.

1. I do not have the authority to decide emergency matters and non-urgent compensation issues simultaneously.[11]

• [34] It seems that the Applicant should consider the issues related to the minimum standards and his tenancy.

• [35] The applicant provided a building inspection report dated 4 August, which has not been given to the landlord. Although the report was not presented during the hearing, it was left for me with some other documents after the hearing concluded. While I have not[12] considered that document in my decision, I raised with the tenant that, depending on what is contained in the report, there might be an application made by the real estate agent on behalf of the landlord to terminate the tenancy if the premises are found to be unsuitable for habitation or unsafe.
• [36] Further consideration of the report suggests that if the tenant wishes to bring another proceeding for relief under section 94, they need to give proper notice of that claim to the RTA for their dispute resolution process. They should clearly state such a claim in any tribunal proceeding they initiate, and that they should clearly articulate such a claim in any proceeding that is commenced in the tribunal.
• [37] The report states that the report writer was engaged to report on major safety concerns of the tenant property.[13]
• [38] The report writer states that, due to the extent of damage and related health risks, the ground floor of the dwelling is deemed uninhabitable.[14]
• [39] The report concludes that the failure of the managing agent or landlord to rectify this issue in a timely or effective manner constitutes a clear breach of statutory duty and could lead to litigation for negligence or failure to provide a habitable dwelling. However, the conclusion is also followed by a number of recommendations:

(a) Engage a structural engineer.

(b) Commission an environmental hygienist.

(c) Undertake an invasive investigation by a qualified builder.

(d) Remove and replace all damaged building materials.

(e) Ensure work carried out by licensed professionals - with an additional requirement documented with photographic evidence and relevant trade certificates.

1. As I indicated earlier in these reasons, I have not thoroughly considered other parts of the report. The agent did not have a fair or reasonable opportunity to be fully informed of the report, and its existence was only brought to their notice towards the end of the proceeding that I was then conducting.[15]

• [41] The report was updated on 6 August 2025. Having just received it, the tenant could not have raised the issues mentioned nor made a claim for a rent reduction because of a conclusion that the ground floor of the dwelling was uninhabitable in a Form 16.
• [42] The recommendations in the building report do give cause for concern. However, equally, the recommended further action may result in different, less worrisome conclusions.
• [43] Significantly, in my opinion, the lessor should promptly consider the minimum standard obligations. The rent paid cannot be used to avoid compliance with those standards.

• [44] It is unclear what was submitted to the RTA or why the matter was considered unsuitable for conciliation. It was suggested that the RTA had concluded the matter was not suitable for conciliation because the tenant had requested a significant amount of compensation. The landlord's agent advised the tenant to provide further details of the compensation amounts sought and to resubmit another dispute resolution request. This did not seem like an unreasonable request given the circumstances. Nor did this suggestion appear to be an unreasonable way to meet the compulsory requirement of having a conciliation before starting proceedings.
• [45] It is unclear what was referred to in the Form 16 submitted to the RTA, as it has not been included in the documents provided by the parties.
• [46] Based on what I have been provided, it seems that the collateral communications made at the time of the parties do not indicate that a section 94 claim was referred for conciliation. The issue of a rent reduction needs to be submitted to the RTA in a suitable manner.[16]
• [47] At best, considering the claim as expressed in the communications, in the application, and during the hearing, the applicant could only say that they were seeking compensation for rent they should not have paid due to the substandard condition of the premises but had agreed to pay nonetheless.

• [48] Any claim for compensation made before 3 October 2024 is dismissed as it is out of time - having occurred more than six months prior to submitting a dispute resolution request to the RTA. Under section 419(3) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), an application must be lodged with the tribunal within six months after the applicant becomes aware of the breach.
• [49] Furthermore, the time starts from when the breach of the relevant agreement is identified. Submitting Form 16 in April effectively allows a claim for a breach known to the tenant in the previous six months; however, the only possible claim relates to the tenancy agreement made from November. There is no jurisdiction to extend this time limit. It is clearly evident that the applicant had raised concerns about the condition of the premises on multiple occasions during various tenancies prior to that date.
• [50] With the benefit of hindsight, the applicant may have taken different actions and, unquestionably, have prepared their application in an unconventional way. They repeatedly emphasised to me that they were unsure and, respectfully, clueless about how to proceed properly. They had said they trusted the lessor.

• [51] I order that the application for compensation be dismissed.

[1] Hayes v Twomey Schriber Property Group [2022] QCATA 32, [12].

1. [2] Sheehy v Hobbs [2012] QSC 333.
2. [3] See also Carney v Home Rentals Queensland [2020] QCATA 119, [18] ('Carney').
3. [4] Expressed as $ for labour to prepare space for contractors.

[5] [2014] QCATA 330 ('Challands').

[6] Ibid [25]; I have slightly paraphrased the words used in the case without changing the statement of principal.

1. [7] This is a qualified conclusion which might alter depending upon further investigations that were recommended by the inspector appointed by tenant who did a building inspection report on 4 August 2025 - Jim's Building Inspection - building inspection report modified date 6 August 2025.
2. [8] It was informed in the sense they knew of the problems.

[9] It is also referred to in the booklet provided to the tenant at the commencement of the tenancy.

1. [10] The Act s 91(7).
2. [11] Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277.

[13] Page 3. The report is subject to the pre-inspection agreement in place between the parties which set out the purpose and scope of the inspection (Page 2).

1. [15] It was equally possible that the applicant did not have the ability to properly and fairly consider the implications of the report.

[16] Wise v Ray White Nerang [2021] QCATA 71, [7] "this [issue] had not been conciliated", [11] "(on form 16) which covered various issues...." which would have allowed this issue to be raised in the tribunal.