Weeks & Anor v Bond [1997] QCA 349

Before this Court it was not disputed that there was a tenancy of the house between the parties for a term of 12 months from 18 January 1993 at a rental of $2,500 per week and that the appellants vacated possession of the house on 19 July 1993. It was also common ground that the tenancy was pursuant to a tenancy agreement within the meaning of the Residential Tenancies Act 1975 ("the Act").

By s.17(2) of the Act, in a tenancy for a fixed term such as this, where a landlord has failed to perform or observe any obligation implied in a tenancy agreement by virtue of s.7(a) and the performance or observation of that obligation has not been waived or excused by the tenant, the tenant may terminate the tenancy by notice to quit to the landlord given for a period of at least 14 days. By written notice of at least 14 days the appellants purported to terminate the tenancy on 20 July 1993. It gave three reasons. These were:

1. failure to provide and maintain during the tenancy the house in good tenantable repair and in a condition fit for human habitation: s.7(a)(ii);

2. failure to maintain during the tenancy fixtures, fittings, goods and chattels let with the house in good tenantable repair: s.7(a)(iii); and

3. failure to comply with all lawful requirements in regard to health and safety standards with respect to the house: s.7(a)(iv).

It then particularized each of the alleged failures. It was not contended in this Court that any of the alleged failures had been waived or excused by the appellants.

Before this Court the appellants relied principally on six of those failures. Four of them were referred to in a letter from the appellants to the respondent of 20 April 1993. The learned trial Judge found the respondent to be in breach of his obligations, implied by s.7(a), in respect of each of these four items. However his Honour said in respect of these:

"In my view the breaches proved did not entitle the defendants to terminate the lease. They would have been entitled to recover damages, but in my view no more. Assuming, for the moment, that the language of the ordinary law of contract is applicable to leases, I am of the view that the breaches proved did not amount to such a serious breach by the plaintiff of his obligations as to entitle the defendants to regard him as having repudiated the contract and thus enabling them to accept that repudiation and end the agreement."

"It would be apparent from what I have already said that I regard the breaches proved in this matter as trifling. Of the four matters I have found proved, I make the following observations:

(a) although one kitchen extractor hood was not working, a second one was provided, and it functioned properly. The defendants might have ascertained at the time of their inspection that this was the situation, and indeed, the 'problem' was noted on the inspection report.

(b) As already pointed out, the letter from Mrs. Weeks suggests that the oven had in fact been repaired, although it is true to say that the problems with the door were specifically mentioned as needing attention. I take into account Mr. Froud's evidence that the adjustment might be easily made by a tradesman.

(c) The microwave 'problem' was solved by Mrs. Weeks bringing up her own microwave from Adelaide. This was, on the evidence, prior to the letter of 20th April 1993.

(d) The problem with the door handle on the toilet door would seem to be of very small moment."

In these passages his Honour seems to be saying that, because these breaches were "trifling" in the sense that, although entitling the appellants to recover damages, they would not be sufficient either separately or together to constitute repudiation, they did not entitle the appellants to terminate the tenancy agreement pursuant to s.17(2).

There does not appear to be any basis, either in principle or authority, for the limitation which his Honour has implied in s.17(2); that notwithstanding its express terms that where the landlord has failed to perform or observe any obligation implied by s.7(a) which has not been waived or excused by the tenant, the tenant may terminate the tenancy by notice to quit, that right should be limited to the case where the failure, or all failures together, are sufficient to constitute repudiation of the tenancy agreement by the landlord. We would therefore reject any such implied limitation.

On the other hand, in requiring "good tenantable repair" in paras.(ii) and (iii) of s.7(a) and "a condition fit for human habitation" in the first of these, the section is, in each case, imposing a standard of reasonableness[1] having regard to the age, character and locality of the house[2] and to the effect of the failure on the state or condition of the house as a whole.[3] It may well be that the four failures referred to in the above passages from his Honour's judgment, separately or together, were insufficient to constitute breach of the implied obligations in s.7(a)(ii) or (iii). However for reasons to which we now turn it is unnecessary to reach any concluded view on this.

The other two failures principally relied on in this Court were rejected by his Honour as failures which would permit termination of the tenancy pursuant to s.17(2) because, his Honour said, "the plaintiff's obligation to rectify the various proved defects arose only upon his having notice of the defects, and that the defendants required them to be remedied". These alleged defects were not referred to in the letter of 20 April 1993 and it was not suggested that there had been any other notification by the appellants requiring them to be remedied.

Before this Court the appellants accepted that there would be a breach of the obligations contained in s.7(a)(ii), (iii) and (iv) only if there was a failure to repair defects of which the landlord was aware or should be aware. In making that concession Mr. McMurdo Q.C. for the appellants referred to, and accepted as correct, dicta of Justices Gummow and Kirby in Northern Sandblasting Pty. Ltd. v. Harris.[4] In our view that concession was properly made. However as Mr. McMurdo pointed out, the respondent's evidence was that he was aware of these two failures before the tenancy commenced.

It is not entirely clear why his Honour imposed on the right to terminate in s.17(2) the limitation that a failure must be one which the tenant has required to be remedied. There is nothing in the context of the section, of s.7 or of the Act as a whole which would require it. On the contrary the presence in s.17(2) of the specific limitation that performance of the obligation must not have been waived or excused suggests otherwise. In our view the learned trial Judge was wrong in excluding these alleged breaches from his consideration.

The first of these was described in the list adopted in his Honour's reasons as an unsatisfactory electrical service to the laundry. What it consisted of in fact was a number of electrical leads running from a switchboard on the exterior of the house at the level of the second storey, apparently facing onto a verandah, over the balustrade of that verandah and over the top of a doorway at the ground floor level and then apparently through the downstairs laundry window. The leads ran loosely outside the house but were affixed to the exterior wall at a number of points. They were not immediately dangerous but could become so if, for example, a gardener pruning a nearby wisteria vine accidentally cut through one of them or deterioration or damage by weather caused one or more of them to fall or live wires to be exposed. They were described by an inspecting electrician as not effectively fixed in position. No doubt they should have been encased in a conduit and, perhaps also, placed in the cavity between the external and internal brick walls of the house. Left exposed as they were they were unsightly and not what one would expect in a properly and safely constructed house, especially one of this quality; it was large and expensive, as reflected in the rental rate (it had been purchased for $3M in 1989), it was lavishly equipped and it was situated in one of Brisbane's most expensive suburbs.[5] In our view, by permitting these electrical leads to remain exposed in this way in the vicinity of a window, a doorway and a verandah, the respondent committed a breach of the obligation, implied in the tenancy agreement by s.7(a)(ii), to provide and maintain the house in good tenantable repair.

The other failure relied on was the omission of a light in the swimming pool and the consequence that wires for this fitting were exposed and hung loose in the water. They were not live wires; the male appellant was plainly aware of this, and during his occupancy, swam in the pool frequently. Nevertheless loose electrical wires, especially in water, are a reasonable cause for apprehension and might be expected to deter others, who did not have the male appellant's confident knowledge, from using the pool or to feel inhibited in their use of it. It was also referred to as a defect in the electrician's report. In our view leaving electrical wires exposed in the swimming pool in this way was also a breach of the obligation, implied by s.7(a)(ii), to provide and maintain the house in good tenantable repair.

In our view the appellants were entitled to terminate the tenancy agreement for breach of the obligation implied by s.7(a)(ii) in either of the respects lastmentioned. However those breaches should, of course, be viewed together and together with those matters, referred to earlier, relied on in the letter of 20 April 1993. When they are so viewed, the respondent was, in our opinion, plainly in breach of the obligation implied by s.7(a)(ii) and the appellants effectively terminated the tenancy for such breach or breaches on 20 July 1993. It follows that the appeal should be allowed, the judgment below set aside and in lieu there should be judgment for the appellants on the respondent's claim.

There was a counter-claim by the appellants for damages for breach of the respondent's obligations which was pursued in the notice of appeal. It was supported by the bald submission in the appellant's outline of argument that "the learned trial judge should have upheld the appellants' counter-claim, which he did not consider" but was not the subject of oral argument before this Court. As the respondent points out in his outline of argument the appellants did not lead any evidence to prove loss or damage. Therefore they should have judgment on their counter-claim for nominal damages only. As the case here and below was argued on the basis of the respondent's claim the appellants must have their costs here and in the District Court.

[1] O'Brien v. Robinson [1973] UKHL 1; [1973] A.C. 912 at 927; Northern Sandblasting Pty. Ltd. v. Harris [1997] HCA 39; (1997) 146 A.L.R. 572 at 615-623, 646-8, 605-6.

[2] Cf. Proudfoot v. Hart (1890) 25 Q.B.D. 42 at 52-3, 55; Clowes v. Bentley Pty. Ltd. [1970] W.A.R. 24 at 30; Credit Suisse v. Beegas Nominees Ltd. [1994] 4 All E.R. 803.

[3] Cf. Summers v. Salford Corporation [1943] A.C. 283 at 289, 290, 298

[4] Northern Sandblasting Pty. Ltd. v. Harris supra fn. 1.