Benson v Chapple
[2011] QCAT 430
•26 May 2011
| CITATION: | Benson v Chapple [2011] QCAT 430 |
| PARTIES: | Mrs Jacinta Benson |
| v | |
| Mr Alexander Bruce Chapple |
| APPLICATION NUMBER: | MCDT715-11 / MCDT898-11 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 26 May 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Andrew McLean Williams, Member |
| DELIVERED ON: | 26 May 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Applicant in Claim No. 715/11 Ms Jacinta Benson pay to the Respondent Mr Alexander Bruce Chapple the sum of $194.70 within seven (7) days of the date of this order. 2. Claim No. 898/11 is dismissed. |
| CATCHWORDS: | Minor debt – short-term residential sub-tenancy – written agreement regarding payment of rent and utilities – subsequent oral variation of the written agreement – dispute as to calculation of charges Entitlement to out-of-pocket expenses by self-represented litigants as a component of their compensation |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Self-represented. The Applicant was also granted leave to appear together with a support person, Mr Gary Whitelaw. |
| RESPONDENT: | Self-represented |
REASONS FOR DECISION
By an Application for Minor Civil Dispute – Minor Debt filed on 11 March 2011, Ms Jacinta Benson seeks $179.06 from Mr Alexander Bruce Chapple.
Ms Benson’s claim arises out of a 143-day sub-tenancy agreement between herself and Mr Chapple. The $179.06 now claimed by Ms Benson is an additional sum, over and above the $600.00 rental bond (and $6.00 key deposit) still held by Ms Benson, which she now says should also be forfeited to her, because the total amount that Mr Chapple should have paid to her is $3,946.46, yet in circumstances in which Mr Chapple has only paid her $3,207.60.
Although framed as a claim seeking only $179.06, Ms Benson’s total claim against Mr Chapple is actually one for $741.86 to which Ms Benson then seeks to credit the $606.00 bond amount. Ms Benson claims that Mr Chapple should be ordered to pay to her the outstanding difference of $135.86, together with her QCAT filing fee ($20.50); and a further $22.70 for her out-of-pocket expenses for postage, photocopying, telephone calls and the public transport costs for Ms Benson to attend before the tribunal.
Mr Chapple’s Response (Form 7) was filed on 8 April 2011. By that Response Mr Chapple seeks countervailing orders:
(a)dismissing Ms Benson’s claim;
(b)for the repayment of $420.00 from his rental bond of $606.00 as is still held by Ms Benson;
(c)for the payment of interest on the bond amount of $606.00 from 11 October 2010 to 28 February 2011, “plus interest on the monies owing to me from 1 March 2011 until the date they are paid to me”; and
(d)$40.00 for his out-of-pocket expenses.
In addition to the relief sought by Mr Chapple in his Response, Mr Benson also commenced his own Application against Ms Benson (what has since become QCAT Claim 898/11), arising out of the same facts and circumstances.
In Claim No 898/11 Mr Chapple seeks the somewhat greater sum of $957.00. The difference between the $420.00 originally claimed by Mr Chapple in his Response to Claim No 715/11, and the $957.00 now claimed in Claim No 898/11 is essentially only arithmetic. In the later claim, Mr Chapple more carefully quantifies the sums claimed as interest, and for out-of-pocket expenses, yet that is where the difference between the two claims end. I am satisfied that matters 898/11 and matter 715/11 are one-and-the-same, and should always have been dealt with before QCAT as the same dispute and ought never have become different claims.
Although it was misconceived for Mr Chapple to commence a fresh claim, I am satisfied that no malice was intended by him in doing so, despite Ms Benson having submitted that Mr Chappell’s claim is vexatious and retributive. Commencing claim 898/11 was unnecessary and misguided, but it was, nonetheless, an honest and genuine mistake. Indeed, Mr Chapple explains the rationale for his having commenced the additional claim in the following terms, which I regard as acceptable:
“….I responded to her QCAT Form 3 Case No. MCD0715/11 & was advised at time of lodgement that ours is a Residential Tenancy Dispute & that I should additionally lodge a QCAT Form 2, herewith. I request that the two matters be dealt with simultaneously…”.
Factual Circumstances of the Dispute
At all material times Ms Benson was the tenant of a rental property at Goodna. Rent for that property was specified in the lease to be $300.00, per week.
Pursuant to her head lease there was nothing to preclude Ms Benson from entering into a sub-tenancy agreement. Ms Benson subsists on a disability pension, and hence sought to defray some of her costs of living by advertising for a sub-tenant.
[10] Mr Chapple replied to Ms Benson’s on-line advertisement for a sub-tenant and, on 11 October 2010, the parties entered into a written sub-let agreement, initially for a periodic term of “approximately two months” at an agreed rent of $150 per week, payable two weeks in advance. Mr Chapple also agreed to pay one-half of the electricity, one half “general telephone + any charged calls”, and one-half any water charges. All of this was reduced to a written agreement, expressed to be their sub-let agreement.
[11] There is no dispute that the sub-let agreement that is appended (at page 9 of 20) of the material filed in support of Ms Benson’s Claim before QCAT embodies the terms of their original sub-tenancy agreement.
[12] Mr Chapple stayed residing with Ms Benson beyond the originally envisaged two months. However, it would appear that Ms Benson and Mr Chapple were incompatible housemates and Ms Benson, in particular, had considerable difficulty in adjusting to the presence of Mr Chapple in her home. In late February 2011 Ms Benson could stand things no more, and 8 days notice was given to Mr Chapple by Ms Benson, requiring that he vacate the Goodna house, by no later than 2 March 2011.
[13] In strict terms, Condition 3 of the written sub-let agreement did require the giving of two weeks notice (by either party) in order to finalise the agreement. However nothing turns on that, as Mr Chapple accepted Ms Benson’s notice to vacate by 2 March 2011. In point of fact, Mr Chapple managed to vacate somewhat sooner than 2 March 2011, and he was out of the house altogether by 28 February 2011.
[14] The dispute arises in relation to rent and utilities charges claimed to still be owing, after the date on which Mr Chapple vacated. Ms Benson contends that Mr Chapple should have paid a total of $3,300 in rent over the 143-day period that he resided in her house, on the basis that the daily rental rate is $23.08 per day. Mr Chapple contends that this contention is infected by arithmetic error, as $150.00 per week – if divided by seven – equates to $21.42 per day, and not $23.08 as now asserted by Ms Benson. I agree with Mr Chapple, in that regard. Accordingly, the full amount of rent for his occupancy over the 143-day subtenancy period should be assessed as $3,063.06 and not $3,300.00 as claimed by Ms Benson.
[15] Next, Ms Benson contends that Mr Chapple is required to pay her $300.69 for telecommunications, on the basis that the sub-let agreement required Mr Chapple to pay one-half the costs of “general telephone, + call charges”. However Mr Chapple states that at about the time that Ms Benson received the Telstra bill for the billing period ending on 21 November 2010, he had complained to Ms Benson that he did not use the telephone, and hence should really only be contributing to one-half of the internet component of the telephone bill. Mr Chapple says that Ms Benson agreed to that, and that thereafter he only contributed to one-half the cost of internet, and not general telephony, as well. Mr Chapple says this was $89.00 per month, and hence he should only be required to meet one half that sum. Ms Benson agrees that she reluctantly acquiesced to Mr Chapels’ complaint regarding the telephone bill. I find therefore that there was an oral variation to the original sub-let agreement from about 21 November 2010 in relation to telephony charges. However, nothing much turns on that, as I note that the November 2010 Telstra bill indicates that the internet service was part of a $128.00 per month 100gb “home ultimate bundle”, which included unlimited local and long distance telephone calls as an additional, “no extra cost” benefit of the bundle. In effect therefore, ordinary telephone calls (that is all calls excepting those made to ‘13’ numbers and the like), were an additional benefit, at no further cost to either party. On the basis of that which is contained in the November Telstra bill I find that the cost of internet was not $89.00 per month as now contended by Mr Chapple but was, in fact, $128.00 per month. Mr Chapple’s monthly share of the 100gb internet bundle is therefore $64.00 per month, or the equivalent of $2.10 per day, irrespective of whether he used the telephone, or not. This is the same rate now claimed by Ms Benson as the appropriate basis for calculating telephony charges, such that I now allow that rate, and assess the total telephony costs over the period of Mr Chapple’s sub-tenancy to be $300.30.
[16] Ms Benson also claims that Mr Chapple must pay one-half the electricity costs in accordance with the terms of the sub-let agreement. Mr Chapple says that his contribution to the costs of power and water was also varied by oral agreement, on or about 23 January 2011, so as to reflect the fact that Ms Benson’s son had also taken up occupation in the home by that stage. When pressed on the matter Ms Benson reluctantly agreed that she had also varied the arrangement in relation to power charges, but was adamant that no variation had been made in relation to water charges. Given that the parties agree that there had been a variation in the arrangement for power charges from about 23 January onwards, I assess that Mr Chapple should only be required to pay one-third the power costs over the last 38 day period of his occupation in Ms Benson’s house (that is from 23 January 2011 until 2 March 2011), as Ms Benson and her son were using two-thirds of the power. Accordingly the appropriate calculation for Mr Chapple’s total contribution to power charges should become:
Fixed Charges: 105 days @ $0.30 per day + 38 days @ $0.20 per day (=$39.10)
Peak Tariff: 105 days @ 1.08 per day + 36 Days (until 28 Feb. 2011) @ $0.72 per day (=$139.32)
Ancillary Tariff: 105 days @ $0.27 per day + 36 days @ $0.18 (= $34.83)
Combined Electricity Total: $213.25
[17] On the basis of the ongoing factual dispute regarding any variation to the water charge agreement, I am unable to be satisfied that there is sufficient evidence that any change was made to the water charge arrangements, as were embodied in the original written sub-let agreement. On this basis I find that Mr Chapple’s contribution to water should be $42.30, on the basis of $0.30 per day for 141 days, until his actual departure on 28 February 2011. This is slightly less than the $50.36 now claimed by Ms Benson to be owed by Mr Chapple under this item.
[18] The final tenancy item claimed by Ms Benson relates to some minor damage to a wall in one of the bedrooms, which required re-painting prior to Ms Benson’s own departure from the Goodna property. Mr Chapple denies any knowledge of this matter but concedes that he did use this bedroom, from time-to-time.
[19] The sub-let agreement between the parties provides that the rental bond paid by Mr Chapple to Ms Benson can be withheld for “any issues affecting the Rental Tenancy Bond”, which must be taken as a reference to the original rental bond, as was previously paid by Ms Benson under her head lease with the owner of the Goodna property. As Ms Benson would be required to ‘make good’ the condition of the premises prior to her own departure, I find that it would, in the ordinary course, be quite reasonable for Ms Benson to seek to retain from the bond amount held by her from Mr Chapple one half of the cost of any ‘make good’ repair costs that are attributable to damage caused during Mr Chapple’s time in-residence. Here, I say ‘in the ordinary course’, because that would properly entail a joint, documented inspection report by the head tenant (Ms Benson) and the sub-tenant (Mr Chapple) at both the commencement and the conclusion of the sub-tenancy, in order that they might be able to attempt to agree any items of pre-existing damage at the time when the sub-tenancy arrangement was commenced, and damage that has occurred during the sub-tenancy. As such an inspection regime did not take place it places Mr Chapple in an unfair position, and it is not reasonable to seek to attribute the occurrence of the damage to his period in occupation at the Goodna residence. I therefore do not allow the claimed amount of $66.00. Had there been evidence of an inspection regime – such as that just described – I would have allowed this item.
[20] On the basis of the foregoing analysis, the total amount that Mr Chapple was required to pay in relation to his sub-tenancy agreement with Ms Benson was $3,618.91. On the basis of the materials adduced into evidence by both parties I am satisfied that Mr Chapple did, in fact, pay to Ms Benson the sum of $3,207.60. Ms Benson still holds Mr Chapple’s rental bond, in the sum of $606.00. From this she is entitled to retain $411.30.
[21] Ms Benson also seeks orders from the tribunal for $22.70 in out-of-pocket expenses, and her QCAT filing fee of $20.70. Expenditures upon such matters as postage, photocopying, telephone calls and for public transport fares so as to be able to appear before QCAT in order to agitate a claim are all expenses that are necessarily coincidental upon a claimant making the decision to commence a claim before QCAT. In a jurisdiction in which self-representation is the expected norm, disbursements such as these are generally unrecoverable. Disbursement expenses such as those now claimed will only be recoverable before QCAT if they are part of fees and costs charged to a successful litigant by their professional legal representatives in accordance with a retainer agreement, and in those specific circumstances in which the Tribunal has firstly allowed that legal representation, and also made a costs order in favour of the successful litigant. As this case is not even remotely proximate to those circumstances, I will not now allow the claim for out-of-pocket expenses. On the basis that Ms Benson has not been successful in seeking monetary compensation from Mr Chapple – and must ultimately repay a sum of money to Mr Chapple – I also do not allow her claim for the $20.70 QCAT filing fee.
[22] In conclusion, in matter No. 715 of 2011, I order that Ms Benson pay to the Respondent Mr Chapple the sum of $194.70 within seven (7) days.
Claim 898/11:
[23] At the outset it bears repeating that all of the substantive matters raised by Mr Chapple in his counter claim in matter 898/11 have been sufficiently dealt with by me in my reasons given in relation to Claim No 715/11, immediately above.
[24] By Claim 898/11 Mr Chapple seeks the return of $420 from his bond, together with interest (ostensibly because the bond amount was not lodged with the RTA), and out of pocket expenses, predominantly identified as comprising a monetary compensation claim for 20 hours of Mr Chapple’s own time (at $19.12 per hour) used in preparing his case before QCAT. The same considerations as those that lead to my dismissal of Ms Benson’s claim for out-of-pocket expenses now apply with equal force in the case of Mr Chapple’s claim for out-of-pocket expenses.
[25] In relation to the claim for lost wages, it also bears observing that there is an opportunity cost involved in electing to commence a claim. Generally, the personal time consumed by any litigant in pursuing their claim cannot then be claimed back in recompense against the target of their claim. There are always unrecoverable costs that arise when litigating. This is one of the salutary factors that should be taken into account when making the decision to litigate. In addition, it bears observing that Mr Chapple did also candidly admit that he lost no paid employment in preparing his claim, as he did all of this outside his usual working hours. I disallow the claim for Mr Chapple’s personal time charged at the rate of $19.12 per hour.
[26] Mr Chapple’s interest claim – expressed to be a right to interest forgone by reason of Ms Benson’s failure to lodge his rental bond money with the RTA – is also unrecoverable, on the basis that there is no basis at law for it. I find that there was never any requirement imposed on Ms Benson that Mr Chapple’s rental bond be lodged with the RTA, because of the very short-term nature of the original sub-tenancy agreement.
[27] I order that Claim 898/11 be dismissed.
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