Ray White Broadbeach v Mitchell [2025] QCATA 55

• [1] The Mitchells rented a Broadbeach property managed by the applicant agent, Ray White, for a fixed term commencing on 21 October 2022 and ending on 20 April 2023, experiencing maintenance issues throughout, including a TV aerial and a dishwasher that each required replacing, a plumbing issue and, relevantly, air-conditioning that broke down in November 2022, was not repaired until 9 January 2023 and that again broke down on 13 February 2023 and was not repaired before the tenancy ended.
• [2] By an application for minor civil dispute - residential tenancy dispute filed on 1 June 2023 (the MCD Application) the Mitchells claimed compensation in the amount of $10,000.00 pursuant to:

(a) s 169 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRAA) for 'loss of amenity, a service or facility'; and

(b) s 94 of the RTRAA, for 'Rent decrease - premises are partly unfit to live'.

• [3] By a decision made 28 September 2023, the learned Adjudicator ordered that Ray White pay to the Mitchells the sum of $3,500.00, within twenty-eight days. That amount was awarded, in summary, as a 'lump sum figure' as compensation for the 'inconvenience and discomfort and annoyance'[1] or 'loss of amenity' suffered by the Mitchells, resulting largely from the lack of any or any adequate air-conditioning in the upper level of the premises. The premises comprised a five-bedroom waterfront house on the Gold Coast, and the rent payable was $1,695.00 per week. This was described by the Adjudicator as 'luxury' accommodation.
• [4] These proceedings concern Ray White's application for leave to appeal filed 26 October 2023,[2] and, if successful, the appeal against that decision.
• [5] In determining whether to grant leave, the Appeal Tribunal must be satisfied that, relevantly:

(a) there is a reasonably arguable case of error in the primary decision;[3]

(b) there is a reasonable prospect that the appellant will obtain substantive relief;[4] and

(c) leave is needed to correct a substantial injustice caused by the error;[5] or

(d) there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[6]

• [6] A chronology of the issues experienced by the Mitchells throughout the tenancy and the tenancy dispute itself is set out below:

Dishwasher tested, works properly but unable to drain due to kitchen design issue.

Inspection to diagnose air-conditioning fault, with quote to follow.

Upstairs toilets serviced and parts replaced. Ensuite drain cleared.

Burning smell from air-conditioner reported by tenants.

Attendance by electricians - air-conditioners are broken but parts no longer available, both systems need replacing.

Dispute resolution requested of Residential Tenancies Authority (RTA).

Application for minor civil dispute - residential tenancy dispute filed.

• [7] As noted above, the Mitchells claimed the amount of $10,000.00 pursuant to s 169 or s 94 of the RTRAA.
• [8] The Mitchells' submissions noted the extent to which the state of repair of the property impacted their family, and how much they spent, for example, on pool chemicals, to mitigate the uncomfortable living circumstances, particularly over summer months.
• [9] However, it was conceded that the managing agent was "quick to advise the owner of issues and request assistance". Further, according to the hearing transcript, it was not disputed that the lessor acted reasonably in responding to requests to repair, for example:

(a) The Adjudicator noted to Mr Li, the lessor's agent, that no Form 11 Notice to Remedy Breach ever issued "because you were carrying out the repairs".[7]

(b) The Adjudicator observed that Mr Li could not be criticised for the steps that he took, with which Ms Mitchell agreed.[8]

(c) In giving his reasons for the decision, the Adjudicator noted that Mr and Mrs Mitchell had acknowledged that "Mr Li acted promptly with respect to their complaints"[9] and made a finding that Mr Li, "I think properly, has acted appropriately in terms of attending to having repairs conducted".[10]

Section 94 of the RTRAA

• [10] Section 94 provides that if premises are, relevantly, destroyed, or made completely or partly unfit to live in, in a way that does not result from a breach of the agreement, or if:

(a) services, facilities or goods to be provided to the tenant under the agreement are no longer available or are withdrawn other than because the tenant failed to meet the tenant's obligations under the agreement; or

(b) the amenity or standard of the premises decreases substantially other than because of malicious damage caused by the tenant, then

the rent payable under the agreement decreases accordingly or, if an order for a decrease in the rent is made by a tribunal, to the extent stated in the order.

• [11] The operation of this provision has been considered previously by the Appeal Tribunal. It has been consistently concluded that an application for relief may only be brought during the tenancy, and not after a tenancy has ended.[11]
• [12] We respectfully agree, and adopt, in particular, the observations of Justice Daubney, President in Gould v Mazheiko & Gill [2020] QCATA 10, [15]-[20]. In particular, His Honour aligned himself with the reasons given by and conclusions of Carmody J in Bourke v Kenjad Rentals [2019] QCATA 81 as follows (footnotes omitted):

[17] In Bourke v Kenjad Rentals, Carmody J reached the conclusion that the tenant must apply for a rent decrease during the tenancy. His Honour contrasted the purpose of the monetary compensation regime under ss 419 and 420 with rent relief under s 94, stating that the former provides a legal remedy for non-performance of breach of tenancy obligations regardless of loss of enjoyment, while rent reduction focusses on fairness, not fault and derives from the restitutionary theory of unjust enrichment and the equitable doctrine of abatement, not the law of compensation. His Honour considered that rent reduction is intended to be prospective and temporary. The rent payable decreases to reflect the diminished amenity or standard of the premises, pending their remedy. He said that 'although it is not time limited, the right to apply [for a rent reduction] logically lapses with the obligation to pay rent'.

• [13] By section 417 of the RTRAA an application about a tenancy issue is deemed to have been made in the Tribunal by the filing of a dispute resolution request to the RTA.[12]
• [14] As the property was vacated by 6 April 2023[13] and dispute resolution was not requested until 27 April 2023, any claim based on loss of amenity (without breach) ought to have been dismissed as having been brought out of time.
• [15] It follows that the Mitchells had no right to an order for a rent reduction under s 94 of the RTRA Act because the MCD application had been filed after the tenancy had ended or expired.

(1) This section applies if the lessor and tenant do not agree about -

(a) the amount of the lessor's outgoings for a service charge payable by the tenant; or

(b) the amount of the reduced rent payable under the agreement because a service or facility ceases to be available for use by the tenant.

(2) Either party may apply to a tribunal for a decision about the amount payable.

(3) For an application about outgoings, the tribunal may, in addition to deciding the amount of the outgoings payable by the tenant, make an order requiring payment of the amount by the tenant.

(4) In deciding an amount payable by a tenant for outgoings for a water service charge, the tribunal must have regard to the following -

(a) relevant available information about water usage and charges for premises in the local government area in which the relevant premises are situated;

(b) the area of the relevant land;

(c) any terms of the agreement affecting the amount of water used;

(d) the presence or absence of water saving devices in the premises;

(e) the number of persons occupying the premises;

(f) the quantity of water for which the lessor should reasonably be liable;

(g) anything else the tribunal considers relevant.

(5) For an application about reduced rent, the tribunal may, as well as deciding the amount of the reduced rent payable under the agreement, make any order it considers appropriate about rent paid, or payable, under the agreement.

• [17] In our respectful view, the Mitchells were not entitled to an award of compensation under s 169 of the RTRA Act because:

(a) first, we consider that the facts relied upon by the Mitchells did not fall within the scope of s 169;

(b) second, similarly to the operation of s 94, we consider that an application under s 169 must be made during the continuance of the tenancy.

• [18] Section 169 is found under Subdivision 2 of Division 1 of Part 5 of Chapter 2 of the RTRAA.
• [19] Part 5 is headed 'Outgoings of lessor or provider'. Division 1 concerns residential tenancy agreements. Subdivision 1 is headed 'Outgoings other than service charges'. Subdivision 2 is headed 'Service charges'.
• [20] For the following reasons, we consider that the facts relied upon by the Mitchells do not fall within the scope of s 169. We note that, in considering the operation of the relevant provisions, the premises rented by the Mitchells are not 'moveable dwelling premises'[14].
• [21] Pursuant to s 164, a 'service charge' is, relevantly:

(a) a charge payable by a person as owner or occupier of premises for electricity, gas or water supplied to the premises;[15]

(b) a charge payable by a person as owner or occupier of premises for another service or facility, prescribed under a regulation, supplied to, or used at, the premises;[16] or

(c) an amount payable by a person for water fit for human consumption supplied to the premises by delivery by means of a vehicle.[17]

• [22] In our view, on a proper construction of s 164:

(a) each of electricity, gas and water is a 'service' or 'facility'; and

(b) for the purposes of Subdivision 2, any other 'service' or 'facility' must be prescribed under a regulation.

• [23] Section 165 applies to premises that are not moveable dwelling premises if the tenant is required to pay an amount for the lessor's outgoings for a general service charge for the premises because the tenant is enjoying or sharing the benefit of the relevant service or facility. The phrase 'general service charge' is defined as follows: 'for premises that are not moveable dwelling premises in a moveable dwelling park, means a service charge that is not a water service charge'.[18]
• [24] Pursuant to sub-item 12.1 of the general tenancy agreement between the parties, , the Mitchells were required to pay for the following services: electricity, gas and phone; and pursuant to sub-item 12.2, the Mitchells were required to pay for water.
• [25] The Mitchells' claim in respect of s 169 sought to rely upon s 169(1)(b) which refers to 'the amount of the reduced rent payable under the agreement because a service or facility ceases to be available for use by the tenant'. Leaving aside the questions of whether a claim for 'reduced rent' may be may be made in respect of premises other than 'movable dwelling premises' (see s 168), and whether the air-conditioning ceased to be available for use by the Mitchells within the meaning of s 169(1)(b), it is our view that neither the air-conditioning at the premises nor the other complaints listed at paragraph [6] above, were a 'service' or 'facility' within the meaning of Subdivision 2 and, in particular, s 169(1)(b) of the RTRAA. It follows that s 169 did not, in the circumstances, provide a basis for an award of compensation by way of rent reduction (or otherwise).

• [26] A rent reduction claim under s 169 is substantively similar to a rent reduction clause under s 94, being a remedy focussed on fairness, not fault and on equitable principles rather than the law of compensation. In our view, the aforementioned principles espoused by Justice Daubney in Gould v Mazheiko & Gill [2020] QCATA 10 and Justice Carmody in Bourke v Kenjad Rentals [2019] QCATA 81 are apposite to s 169 applications. Each of s 94 and s 169 is contained in Chapter 2 of the RTRAA; with s 94 appearing in Part 2 (dealing with rent) and s 169 appearing in Part 5 (dealing with outgoings of the lessor or provider). Section 169 has application if the lessor and the tenant do agree about, relevantly, the amount of the reduced rent payable under the agreement because a service or facility ceases to be available for use by the tenant.[19] By s 169(2), either party may apply to a Tribunal for a decision about the amount payable. For an application about outgoings, the Tribunal may, in addition to deciding the amount of the outgoings payable by the tenant, make an order requiring payment of the amount by the tenant.[20]
• [27] Subsection 169(5) provides:

For an application about reduced rent, the tribunal may, as well as deciding the amount of the reduced rent payable under the agreement, make any order it considers appropriate about rent paid, or payable, under the agreement.

• [28] Whilst the Tribunal may make any order it considers appropriate about rent paid, or payable, under the agreement, we consider that such an order is dependent upon the making of a decision about the amount of the reduced rent payable under the agreement.
• [29] Having regard to the prior reasoning of the Appeal Tribunal in relation to s 94, the structure of the RTRAA, and the language of s 169, we are of the view that, similarly to s 94, an application under s 169(1)(a) or (b) must be made during the tenancy and not after it has ended. The Mitchells' application was made out of time insofar as they sought relief under s 169.

Consideration of the decision at first instance

• [30] The learned Adjudicator correctly identified that there was a distinction between a claim for rent reduction for loss of amenity (s 94) and a claim for compensation for breach of the RTRAA or the tenancy agreement. He correctly identified that claims arising from the former "should be dealt with during the term of the lease".
• [31] In finding in favour of the applicant tenants, the Adjudicator noted the period of inconvenience, discomfort and annoyance to the tenants during the period in which the air-conditioning was not available to them and said that:

This is not a case where the managing agent has not properly attended to the task at hand. What needs to be considered, however, is that is it reasonable for the tenants, during that period of discomfort and inconvenience, be expected to continue to pay full rent?...

In this case the landlord did attend to its responsibilities to carry out repair. But because of a general nature of the repairs and the need to import parts to carry it out, it did take a significant period of time...

What I am forced to do therefore is to determine what amount, if any, I should award for the fact of the loss of amenity over an extended period of time. Doing the best I can, in all the relevant circumstances, what I propose to do is to determine a lump sum figure. Which is an attempt to give some relief for the fact that some relief ought to have been provided during the term of the lease.

• [32] It is clear to the Appeal Tribunal that the decision so made was infected by error because:

(a) As stated, a section 94 claim cannot be brought after the tenants have vacated the property. This is a bar to the loss of amenity claim.

(b) As neither the air-conditioning nor the other defective items at the premises were a 'service' or 'facility' within the meaning of Subdivision 2 and, in particular, s 169(1)(b) of the RTRAA, s 169 did not provide a basis for an award of compensation by way of rent reduction (or otherwise).

(c) In any event, a s 169 claim cannot be brought after the tenants have vacated the property.

• [33] In those circumstances, compensation was awarded to the tenants in error, and the only decision available to the Adjudicator was to dismiss the tenants' application.

• [34] A substantial injustice to the applicants on account of the Adjudicator's error. Leave to appeal should be, and is, granted, and the appeal itself should also be, and is, allowed.
• [35] The Appeal Tribunal may:[21]

(a) return the matter to the minor civil dispute jurisdiction to determine; or

(b) set aside the decision and substitute its own decision.[22]

• [36] Consistent with the objects of the QCAT Act which include to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal, and quick,[23] in the interests of expediency, we elect to set the decision aside and to substitute it with the only decision available to the Tribunal below, which is a decision to dismiss the application for minor civil dispute filed by the respondents on 1 June 2023.

• [37] The decision of the Appeal Tribunal is therefore that:

(a) Leave to appeal the decision of 28 September 2023 (Q1718-23 - Brisbane) is granted.

(b) Appeal allowed.

(c) The decision in Q1718-23 - Brisbane made 28 September 2023 is set aside and substituted with a decision that the application for minor civil dispute -residential tenancy dispute filed by the respondents on 1 June 2023 is dismissed.

[1] Hearing transcript p 1-19 at lines 1-4.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 143(3).

[3] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.

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

[5] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.

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

[7] Hearing transcript, page 1-13, at lines 13-14.

[11] Bourke v Kenjad Rentals [2019] QCATA 81, [16]; Gould v Mazheiko & Gill [2020] QCATA 10, [15]-[20]; Duncan v Friend [2023] QCATA 63, [31]-[32]; Dearlove v Wavar Pty Ltd [2024] QCATA 83, [25].

[12] Dearlove v Wavar Pty Ltd [2024] QCATA 83, [25].

[13] The fixed term of the tenancy agreement was to end on 20 April 2023.

[15] Subsection 164(1)(a).

[16] Subsection 164(1)(b).

[17] Subsection 164(2).

[19] Subsection 169(1)(b).

[20] Subsection 169(3).

[22] Provided that in doing so, the substituted decision can resolve the matter and does not entail any rehearing of the evidence: See Ericson v Queensland Building Services Authority [2013] QCA 391 at [25].