Agree Real Estate v Richards
[2015] QCAT 279
•14 July 2015
| CITATION: | Agree Real Estate v Richards [2015] QCAT 279 |
| PARTIES: | Agree Real Estate (Applicant) |
| v | |
| Christopher Richards Nicole Richards (Respondents) |
| APPLICATION NUMBER: | MCDT503-14 / MCDT538-14 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Adjudicator Bertelsen |
| DELIVERED ON: | 14 July 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondents reopening application is refused. |
| CATCHWORDS: | TENANCY – rent owing – agents ledger – rent payments made – rent issues fully traversed Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 137 |
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Agree Real Estate made two applications to the Tribunal at Caboolture firstly application MCDT503-14 filed 22 August 2014 seeking rent, water charges and break lease fees consequent upon the respondents Christopher Richards and Nicole Richards having sometime prior vacated the premises 14 Timothy Esplanade, Beachmere. The application intimated further claims for future rent, water charges and associated costs.
On 10 September 2013 Agree Real Estate filed a further application MCDT538-14 seeking additional outstanding rent, cleaning and maintenance costs (additional to those claimed in MCDT503-14).
Both application were heard together on 14 October 2014 by Adjudicator Davern. Both applicant and respondents appeared. The order recorded on that day was as follows:
1.The respondents pay to the applicant the sum of $4,694.29 within six months for full compensation.
Subsequently the respondents asserted that Adjudicator Davern’s orders were not final in that whilst he made an ‘order for full amount of rent owed but requested we return to QCAT with the exact dates the additional payments occurred so the decision amount could be amended’. The audio of the hearing on 14 October 2014 suggests it was open to the respondents to make such a further application regarding rent.
Both applications came before the Tribunal again on 28 April 2015 before Adjudicator Bertelsen. Material on both files and additional material proffered by the respondents was considered by Adjudicator Bertelsen. A reduction of $860.00 (two weeks rent) against the Tribunal’s decision of 14 October 2014 was allowed resulting in a net sum payable by the respondents of $3,834.29.
The order of 14 October 2014 did not address the bond which as at 28 April 2015 was still held by the Residential Tenancies Authority.
An amended order was made on 28 April 2015 as follows:
1.I order that the Respondents pay to the Applicant the sum of $3,834.29.
2.I further order that the Residential Tenancies Authority pay out to the Lessor the sum of $1,720.00 rental bond in part satisfaction of that order.
The respondents have now made a further application on file MCDT538-14 ie effectively a reopening application seeking the ‘opportunity to present all facts to show our payments of rent were not ledgered, but were received’. In their statement the respondents stated ‘the disputed amount is three additional rental payments ($1,290.00) paid by means of direct transfer from our bank account to that of the real estate in 2012’. That issue was fully traversed at hearing on 28 April 2015.
The respondents now state ‘after our last hearing I contacted my bank for advice on presenting information and documents for court’. The respondents sought through their Suncorp Bank Manager to ‘trace’ transfers in 2012. They asserted payments to the same bank account which were not ‘… ledgered. These ledgers were not regularly kept and very difficult to follow’.
Six months had passed between the hearing on 14 October 2014 and 28 April 2015. Despite some life difficulties referred to by the respondents there was ample opportunity (in terms of the implied but unordered opportunity arising out the hearing on 14 October 2014) to gather sufficient material in response to the applicant’s rent claim.
Section 137 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides that an application will only be reopened if ‘the party would suffer a substantial injustice if the proceeding were not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided’. That is not the case here. Simply because evidence is not presented does not classify it as unavailable.
The initiating application by Agree Real Estate had already been effectively reopened to allow the respondents opportunity to place evidence/material before the Tribunal. A final decision has been made. It is not competent for parties to continually attempt to reopen applications with a view to further contesting issues already determined.
The reopening application filed 22 June 2015 is refused.
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