Barnet v Zenbar (Aust) Pty Ltd - [2011] QCAT 314

CITATION:

Barnet and Anor v Zenbar (Aust) Pty Ltd [2011] QCAT 314

PARTIES:	Racheal Barnet Nicholas Vlotman
v
Zenbar (Aust) Pty Ltd

APPLICATION NUMBER:

MCDT92-11

MATTER TYPE:

Residential tenancy matters

HEARING DATE:

9 February 2011

HEARD AT:

Brisbane

DECISION OF:

Tammy Williams, Adjudicator

DELIVERED ON:

5 July 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The termination of the General Tenancy Agreement between the parties, effective from 19 January 2011;

2. The applicants pay the respondent the sum of $822.71 in full by 2 August 2011, being:

a. Ten days rent for the period 10 January 2011 to 19 January 2011 in the amount of $735.71 [less the $500 currently withheld by the respondent, therefore making the total amount owing $235.71];

b. A break lease fee of one week’s rent (including GST) being $566.50; and

c. The cost of $20.50 for filing the counter-claim.

CATCHWORDS:

Whether rental property in liveable condition – cockroaches – date of formation of residential tenancy agreement – date of right to occupancy – whether a valid residential tenancy agreement – where agreement party oral and partly in writing – whether lease agreement terminated – whether amount paid is a holding deposit

Residential Tenancies and Rooming Accommodation Act 2008, ss 12(3)(b), 159(1), 185(2), 277(1)

Fine v Geier [2003] QSC 073
Gray v Queensland Housing Commission [2004] QSC 276

REASONS FOR DECISION

Introduction

Ms Barnet and Mr Vlotman filed an application with the Queensland Civil and Administrative Tribunal (QCAT), naming Zenbar (Aust) Pty Ltd as the respondent. The applicants sought a refund of a partial holding deposit paid to the respondent in the amount of $500.00 and $20.50 for the cost of filing the claim.

Zenbar (Aust) Pty Ltd filed a counter-claim seeking:

·    Rent from the commencement of the signed General Tenancy Agreement of 6 January 2011 to 19 January 2011 in the amount of $1,930.00 [less the $500.00 currently held in the respondent’s trust account];
·    A break lease fee of one week’s rent (including GST) being $566.50; and
·    The cost of $20.50 for filing the counter-claim.

The Tribunal held a hearing at the Queensland Civil and Administrative Tribunal’s hearing rooms in Brisbane. Both parties gave evidence and provided the Tribunal with documentary evidence. The Tribunal reserved its decision so it could carefully consider the evidence and submissions of both parties in light of the provisions in the Residential Tenancies and Rooming Accommodation Act 2008 (the Act).

Relevant Legislation

The Tribunal has jurisdiction to hear and decide this matter pursuant to sections 11 and 12 of the Queensland Civil and Administrative Tribunal Act 2009 (the ‘QCAT Act’). This was a claim by the applicant against the respondents for relief under the Residential Tenancies and Rooming Accommodation Act 2008 for a residential agreement over the property located at the address identified in the claim.

Relevant Facts

The applicants entered into a written tenancy agreement on 6 January 2011 for a fixed term of six (6) months, from that date.

After signing the lease and paying…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barnet v Zenbar (Aust) Pty Ltd

Details

AGLC: Barnet v Zenbar (Aust) Pty Ltd [2011] QCAT 314
Case: [2011] QCAT 314
Decision Date: 5 July 2011

CaseChat Overview and Summary

Barnet brought a claim against Zenbar (Aust) Pty Ltd, seeking damages for the failure to provide a liveable rental property due to the presence of cockroaches. The dispute came before the court to determine the validity of the residential tenancy agreement between the parties, the date of formation of the agreement, the date of right to occupancy, and whether the agreement was terminated. Barnet argued that Zenbar failed to provide a liveable property and that the agreement was invalid due to its partly oral and partly written nature. Zenbar contended that the tenancy agreement was terminated and that the amount paid by Barnet was a holding deposit rather than rent.

The court examined the nature of the tenancy agreement and whether it was a valid residential tenancy agreement, considering the partly oral and partly written agreement. The court determined that the tenancy agreement was valid and that the date of formation was the date of the agreement's execution, rather than the date of right to occupancy. The court found that the tenancy agreement was terminated and that the amount paid by Barnet was a holding deposit rather than rent. The court also considered the amount owed by Barnet and ordered that the tenancy agreement be terminated, effective from 19 January 2011, and that Barnet pay Zenbar the sum of $822.71 in full by 2 August 2011, being ten days' rent, a break lease fee, and the cost of filing the counter-claim.

The court's decision clarified the validity of the residential tenancy agreement between the parties and the date of formation of the agreement. The court's order for the termination of the tenancy agreement and the payment of the sum owed by Barnet provided a clear outcome for both parties. The court's reasoning and decision provide useful guidance for landlords and tenants in similar situations.

Orders

Orders of the court

1. The termination of the General Tenancy Agreement between the parties, effective from 19 January 2011;

2. The applicants pay the respondent the sum of $822.71 in full by 2 August 2011, being:

a. Ten days rent for the period 10 January 2011 to 19 January 2011 in the amount of $735.71 [less the $500 currently withheld by the respondent, therefore making the total amount owing $235.71];

b. A break lease fee of one week’s rent (including GST) being $566.50; and

c. The cost of $20.50 for filing the counter-claim.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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