An online advertisement describing a holiday home near Cairns as a “family and child friendly… secure property …with the comforts of home and safe for occupation” was enough enticement for Adam and Anne Fisher-Charles to sign up and pay for a three week stay.

carmodyThe local couple were in need of short-term accommodation because their own house was in the course of repair and insurers had agreed on a $4.2k rent contribution until the works were complete.

They agreed to take “Three Palms” sight unseen from 21 January to 11 February and paid in advance on a non-refundable basis.

After arriving through the “formidable perimeter fence” with their 16 week old baby, they “did not even unpack” and made arrangements for “emergency alternative” digs elsewhere.

The home was nothing like the idyllic picture that had been painted – they claimed – on the website.

There was a gas leak; no hot water; the garage roller door could not be locked; and the only bathroom was an outside toilet and shower the stairs to which were kept dark by a broken light bulb.

“Stand-in manager” and owner’s friend Wendy Simms was unable to meet the tenant’s demands “within the limited time they were there to give” and noted that when she inspected the premises the day after receiving Adam and Anne’s complaints, it was “perfectly clean and there was no smell of gas.”

Landlord Tina Pavit returned early from a UK holiday to investigate the tenant’s complaint “and protect her investment”.

She had been in residence at the Earlville home just a week earlier and swore she had left it in “good clean order” and “well maintained” with current gas and pool compliance certificates.

She emailed the tenants soon after her return noting that the gas bottle and fittings had been “tampered with” and questioned whether their dissatisfaction was “ever genuine”.

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Handyman Rick Parlett corroborated witnesses Pavit and Simms that the usual practice was for the garage door to have been securely padlocked. During an inspection after the tenants’ departure, he found the “cut-off” padlock not far from the from where it had been removed.

QCAT accepted the tenant’s claim and ordered a full refund of pre-paid rent and the bond for breach of the landlord’s obligation to provide a liveable, safe tenancy in good repair.

Pavit’s appeal came before Supreme Court Justice Tim Carmody.

He noted that online photographs of the home “clearly show that the bathroom/toilet was located downstairs” and that Stayz terms required tenants to report “faults or malfunctions” as soon as possible and lessors to make their “best effort” to repair breakdowns during business hours.

In his view there was nothing that demonstrated the use of the downstairs bathroom would have to be “in darkness” or that it was “unacceptable”. And there was no evidence that any faulty hot water system or gas leak could not have been repaired without much trouble in accord with the contract terms.

“Within limits, holiday accommodation is what it is,” he reflected. “Generally speaking tenants who agree to rent sight unseen assume a degree of risk and within reason must take premises as they find them.”

Unilateral termination of the entire three week occupancy was not, he concluded, justified.

Did the tenants fabricate a false basis for termination? Justice Carmody observed that although some could hold that suspicion, his determination did not require him to make a finding either way.

He ordered that the owner was able to keep the entire rent provided she refunded the security bond.

Pavitt v Fisher-Charles & Anor [2016] QCATA 097 Justice Carmody published 8 July 2016



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