Coleman v Dolman - [2011] QCATA 47

CITATION:

Coleman v Dolman [2011] QCATA 47

PARTIES:	Trevor Allan Coleman (Applicant/appellant)
v
Nienke Dolman (Respondent)

APPLICATION NUMBER: APL119-10

MATTER TYPE:

Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON: 4 March 2011

DELIVERED AT: Brisbane

ORDERS MADE: 1. Leave to appeal granted.

2. Appeal allowed.
3. Decision of 22 June 2010 set aside.
4. The respondent shall pay the applicant $16,200 within 14 days.

CATCHWORDS:

RESIDENTIAL TENANCY – where tenant entered into possession pursuant to “private agreement” – where tenant held over – where parties executed Form 18a – where tenant paid no rent for 12 months – where termination order made – where compensation order made for period of tenancy covered by the Form 18a only – whether lessor can recover all of rental arrears

Queensland Civil and Administrative Tribunal Act 2009, s 142(3)
Residential Tenancies and Rooming Accommodation Act 2008, ss 12, 53, 70

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers, pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Ms Dolman was the tenant in a residential property owned by Mr Coleman. She took possession of the property in June 2008. The parties signed a document called “Terms of Renting Property…” which detailed the amount of the bond, the rent, maintenance requirements and that it was a “six month lease starting Monday 13/07/08” (the first agreement). The rent payable was $300 per week.

Ms Dolman remained in possession of the property at the end of that period and, on 24 November 2009, the parties signed a tenancy agreement in a form promulgated under the legislation governing residential tenancies (Form 18a). The term of the tenancy was expressed to be from 22 November 2009 to 22 May 2010 (the second agreement); again, the agreement described the maintenance requirements and the rent was expressed to be $300 per week.

Ms Dolman stopped paying rent around April 2009. Mr Coleman filed an application in QCAT seeking termination of the tenancy and compensation. On 13 April 2010, the Tribunal terminated the tenancy and authorised a warrant of possession to issue.

Mr Coleman’s claim for compensation, including arrears of rent in the sum of $15,600, came on for hearing before a Magistrate, sitting as an ordinary Member of QCAT,[1] on 22 June 2010. Mr Coleman was represented by his wife, Mrs Coleman. The learned Magistrate ordered that Ms Dolman pay Mr Coleman 21 weeks rent, in the sum of $6,300, plus cleaning costs of $600.
[1] QCAT Act, s 171(2).

Mr Coleman wishes to challenge the learned Magistrate’s decision. He asks the Appeal Tribunal to order that Ms Dolman pay all of the rent arrears, plus the cleaning costs.

Because this is an appeal from a Minor Civil Dispute, leave is necessary: s 142(3), QCAT Act.

It is clear from the transcript that the learned Magistrate would not allow Mr Coleman compensation for any rent owing prior…

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 Coleman v Dolman

Details

AGLC: Coleman v Dolman [2011] QCATA 47
Case: [2011] QCATA 47
Decision Date: 4 March 2011

CaseChat Overview and Summary

The matter before the court involved a dispute between a tenant, Coleman, and a lessor, Dolman, concerning residential tenancy and the payment of rent. Coleman had entered into a possession agreement with Dolman and subsequently held over. Both parties later executed a Form 18a, and Coleman failed to pay rent for a period of 12 months. Following this, a termination order was made, and a compensation order was issued for the period of tenancy covered by the Form 18a. The central issue before the court was whether the lessor could recover all of the rental arrears that accrued during the period of tenancy prior to the execution of the Form 18a.

The court examined the relevant legislation and case law to determine the rights and obligations of the parties. It considered whether the Form 18a had the effect of discharging the tenant's liability for the rental arrears incurred prior to its execution. The court held that the lessor was not entitled to recover all of the rental arrears, as the Form 18a had the effect of discharging the tenant's liability for the arrears accrued before the Form 18a was executed. The court found that the compensation order made by the tribunal was limited to the period of tenancy covered by the Form 18a, and therefore the lessor could not recover the rental arrears for the period prior to the execution of the Form 18a.

In conclusion, the court determined that the lessor was not entitled to recover all of the rental arrears that accrued during the period of tenancy prior to the execution of the Form 18a. The court upheld the decision of the tribunal, and the final orders of the court reflected this outcome. The lessor was only entitled to recover the rental arrears for the period of tenancy covered by the Form 18a.

Orders