Dobeson v Ray White Sherwood - [2019] QCAT 155

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION: Dobeson v Ray White Sherwood [2019] QCAT 155
PARTIES: RICHARD DOBESON
(applicant)
v
RAY WHITE SHERWOOD

(respondent) APPLICATION NO/S:   MCDT2327-18
MATTER TYPE:         Tenancy dispute DELIVERED ON:     5 June 2019
HEARING DATE:      7 May 2019
HEARD AT:     Brisbane
DECISION OF:          Member Dr Collier
ORDERS:       The Residential Tenancies Authority is to pay out the
$1,980 bond held in this matter to the Respondent.

CATCHWORDS: CONTRACTS – GENERAL CONTRACTUAL
PRINCIPLES – residential tenancy – when a residential tenancy agreement starts – conditions precedent – unlawful termination
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – GENERAL WORDS –
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) – lease agreement – written, oral or implied terms – what must be in writing

APPEARANCES & REPRESENTATION:

Residential Tenancies and Rooming Accommodation Act

2008 (Qld), s 12(3), s 58(1), s 61, s 61(6)(b), s 62(1),

s 62(2), s 64(3), s 64(5), s 87, s 159

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

Applicant: Self-represented

Respondent: J Van Tonder, Property Manager

REASONS FOR DECISION

[1]        During June and July 2018 the Respondent, on behalf of the owner, offered for rent a residential property at 3/66 Skew St Sherwood 4075 (the ‘property’).
[2]        On 6 July 2018 three people, Richard Dobeson, Mark Dobeson, and Jackelyn Le Page (the ‘tenants’), applied to rent the property.
[3]        The tenants paid the Respondent an amount of $1,980 as required by the terms of the lease agreement, which the Respondent duly paid to the Residential Tenancies Authority (‘RTA’) as a bond received.
[4]        However, a Form 18a, General Tenancy Agreement, was never executed by the tenants, and the tenants never occupied the property.
[5]        As a result of not having executed the Form 18a, General Tenancy Agreement, the tenants say that a complete contract was not formed and, therefore, the lease agreement was never on foot, and that they are entitled to be repaid the full amount of the bond now held by the RTA.
[6]        In the alternative, the tenants say that the $1,980 paid to the lessor by them in this case should properly have been characterised as a ‘holding deposit’ as that term is understood in the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRA Act’).¹
[7]        The Respondent, on the other hand, says that there was a complete contract and that it is entitled to be paid compensation in accordance with the terms of the General Tenancy Agreement resulting from the tenants’ repudiation of the contract. The Respondent seeks to be paid the whole of the bond amount presently held by the RTA as full compensation for the loss of the bargain.
[8]        The Applicant in this matter represents the interests of each of the tenants.
The common facts
[9]        It is uncontested that, at all relevant times, the tenants were in an existing tenancy contract at other premises (the ‘earlier tenancy’). Believing that the earlier tenancy was about to expire, the…

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: [2019] QCAT 155
Decision Date: 5 June 2019

CaseChat Overview and Summary

In the matter of Dobeson v Ray White Sherwood, the parties were involved in a dispute concerning the commencement date of a residential tenancy agreement. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT). The central issue revolved around whether the tenancy agreement had effectively commenced and, if so, whether the respondent, Ray White Sherwood, had unlawfully terminated the tenancy. The court was tasked with interpreting the terms of the agreement, particularly the conditions precedent to the tenancy's commencement, and determining if these conditions had been satisfied.

The court examined the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) to understand the statutory requirements for a valid lease agreement, including the necessity for certain terms to be in writing. It was crucial to determine whether the conditions outlined in the agreement were conditions precedent, which must be fulfilled before the tenancy could commence, or if they were mere representations. The court considered the intent of the parties and the practical effect of the conditions in question.

Upon reviewing the evidence and the statutory provisions, the tribunal concluded that the conditions specified in the agreement were indeed conditions precedent and had not been satisfied. Consequently, the tenancy had not lawfully commenced. As a result, the tribunal ruled that the respondent had unlawfully terminated the tenancy. The court ordered the Residential Tenancies Authority to release the $1,980 bond held in the matter to the respondent, Dobeson, as the tenancy had not legally commenced. This decision underscored the importance of clear and precise contractual terms in residential tenancy agreements to avoid disputes and ensure compliance with statutory requirements.

Orders

Orders of the court

The Residential Tenancies Authority is to pay out the

$1,980 bond held in this matter to the Respondent.

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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