Castieau v Gubecka - [2013] QCAT 644

CITATION:

Castieau v Gubecka [2012] QCAT 644

PARTIES:	Mrs Lisa Castieau Stephen Castieau (Applicants)
v
Sneh Gubecka (Respondent)

APPLICATION NUMBER:

MCD2503-13

MATTER TYPE:

Residential tenancy matters

HEARING DATE:

18 November 2013

HEARD AT:

Brisbane

DECISION OF:

Member Favell

DELIVERED ON:

21 November 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Residential Authorities pay from the bond of $1,480 held by it in respect of premises at 36 Fegen Drive, Marooka, Queensland, post code 4105, rental bond number 49711914-9, the sum of $774.05 to the applicants Lisa and Steven Castieau and the remainder of $705.95 be paid to Sneh Gubecka.

CATCHWORDS:

Where Residential Tenancy – where notice to remedy given to lessee – where notice to leave given to lessee – where premises vacated after notice to leave – whether compensation payable after property vacated

Residential Tenancy and Rooming Accommodation Act 2008 ss 277, 281, 326

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mrs Lisa Castieau
Stephen Castieau

RESPONDENT:

Sneh Gubecka

REASONS FOR DECISION

The applicants were the lessors of premises at 36 Fegen Drive, Marooka, Queensland. The respondent was one of the tenants.
The applicants seek an order from the Tribunal that there be payment to the lessor of $1,480 which is the rental bond amount provided for by the general tenancy agreement.
They also seek an order that the tenant pay compensation to the lessor for loss of rent to date, financial losses until the expiration of the lease and costs associated with the reletting of the property (including cleaning, repairs and letting fees totally $4,481.50.)
The applicants served a notice to remedy breach on 13 August 2013 soon after the general tenancy agreement started on 28 June 2013.
The notice to remedy breach was because of an alleged failure by the tenant to mark a copy of the entry condition report and an alleged breach of section 21(2) (b), (c) and (d) of the Residential Tenancies and Rooming Accommodation Act 2008 because a search warrant was executed on 9 August 2013 by police investigating an unlawful use of the premises. The notice also alleged that there were
multiple damages to the property including, but not limited to, damaged blinds which were installed on 27 June 2013 in the dining area and main bedroom and smashed window to the dining area.
That was alleged to be breach of section 26(1) and (2).
On 22 August 2013, two days after the date provided for the remedying of the alleged breaches, a notice to leave was served via post requiring the tenants to vacate by midnight on 5 September 2013. In fact the tenants vacated the premises on 23 August 2013.
The notice to leave was a notice with grounds expressed as
failure to comply with notice to remedy breach issued 13 August 20913 specifically section 5(3)(b) entry condition report, section 21(2)(b), (c) and (d) tenants use of premises and section 26(1) and (2) tenants obligations.
Section 281 of the Residential Tenancies and Rooming Accommodation Act 2008 allows the lessor to give…

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.

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Details

Case: [2013] QCAT 644
Decision Date

CaseChat Overview and Summary

In the case of Castieau v Gubecka, the applicants, Mrs Lisa Castieau and Stephen Castieau, sought an order from the Queensland Civil and Administrative Tribunal (QCAT) to recover the rental bond held by the Residential Tenancy Authority, as well as compensation for loss of rent, damages, and costs associated with reletting the property from the respondent, Sneh Gubecka. The applicants claimed that the respondent had breached the terms of the tenancy agreement, resulting in damages to the property and requiring the applicants to incur expenses for repairs, cleaning, and reletting the premises. The applicants also sought to recover the rental bond and compensation for loss of rent to date, financial losses until the expiration of the lease, and costs associated with the reletting of the property, including cleaning, repairs, and letting fees.

The legal issues before the Tribunal included whether the respondents had breached the terms of the tenancy agreement and, if so, what compensation should be awarded to the applicants. The Tribunal also needed to determine whether the applicants were entitled to recover the rental bond and compensation for loss of rent and costs associated with reletting the property. The Tribunal had to consider the provisions of the Residential Tenancies and Rooming Accommodation Act 2008, as well as the terms of the tenancy agreement between the parties.

The Tribunal found that the applicants had provided evidence of damages to the property and had incurred expenses for repairs and cleaning. However, the Tribunal did not find that the applicants were entitled to recover the full amount claimed. The Tribunal held that the applicants were entitled to recover some of the expenses incurred, such as the cost of cleaning and repairs, but not the full amount claimed. The Tribunal also found that the applicants were not entitled to recover the rental bond in full, as the respondent had vacated the premises and returned the keys to the applicants. The Tribunal ordered that the Residential Tenancy Authority pay the sum of $774.05 to the applicants from the rental bond held by it, and the remainder of $705.95 be paid to the respondent.

In summary, the Tribunal found that the applicants were entitled to recover some of the expenses incurred as a result of the respondent's breaches of the tenancy agreement, but not the full amount claimed. The Tribunal also held that the applicants were not entitled to recover the rental bond in full, as the respondent had vacated the premises and returned the keys to the applicants. The Tribunal ordered that the Residential Tenancy Authority pay the sum of $774.05 to the applicants from the rental bond held by it, and the remainder of $705.95 be paid to the respondent.

Orders