Dein v Place Estate Agents

[2018] QCATA 78

CITATION:

Dein v Place Estate Agents [2018] QCATA 78

PARTIES:

Hugo Dein
(First appellant)
and
Nuala Dein
(Second appellant)

v

Place Estate Agents
(Respondent)

APPLICATION NUMBER:

APL285-17

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

DELIVERED ON:

25 May 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

The application for leave to appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – where application for leave to appeal – where lessor’s claim to bond which was already distributed by RTA – whether claim reasonably to be understood as claim for arrears of rent – where tenants breached tenancy agreement by leaving early – where tenants claimed lessor failed to mitigate loss by reducing rent in timely fashion – where tenant has onus of proof on issue of mitigation – where lessor conceded an amount to the tenant and tribunal accepted such as an equivalence to potential saving to the tenant from possible mitigation

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where there are no pleadings in the tribunal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28(3)(b), 28(3)(c), 28(3)(d), s 142(3)(a)(i)
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 185, s 362

Currie v Dempsey (1967) 69 SR (NSW) 116
Pickering v McArthur [2005] QCA 294
Thompson and Anor v Jedanhay Pty Ltd
[2012] QCATA 246

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

Background

1. The appellants were tenants of a property at Indooroopilly. They first commenced their tenancy in 2013. Their last residential tenancy agreement was executed in December 2015 for the period 4 February 2016 through to 6 February 2017. The rent was $950 per week.

2. The tenants decided to purchase a property. They gave notice of intention to leave the rented premises on 14 September 2016, effective for 16 October 2016, and they left on that date.

3. Another tenant was not found for the premises until 3 December 2016. The tenants had paid rent through to 24 October 2016. There was a bond of $4,000 held by the Residential Tenancies Authority (RTA). The RTA gave notice of its intention to pay that out and the bond was refunded to the tenants because the lessor’s agent became ill and did not claim any part of the bond within time.

4. The lessor through the agents filed an application in the tribunal. The claim was stated to be for the bond of $4,000, but the application noted rental arrears of $5,428.57.

5. The matter was heard by the tribunal on 10 August 2017 and an order was made that the tenants pay the lessor the sum of $4,000 within 60 days of order.

6. The tenants have applied for leave to appeal the decision and to appeal.

7. Given this is an appeal from a decision made in the tribunal’s…