Duff v Macleay Island Realty
[2012] QCAT 557
•26 October 2012
| CITATION: | Duff and Anor v Macleay Island Realty and Ors [2012] QCAT 557 |
| PARTIES: | Charles Duff Victoria Duff (Applicants) |
| v | |
| Macleay Island Realty ABN 301 332 132 88 Vaughan Desplace Zarina Desplace (Respondents) |
| APPLICATION NUMBER: | MCDT2601-11 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | John Bertelsen, Adjudicator |
| DELIVERED ON: | 26 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application to reopen the proceeding is refused. |
| CATCHWORDS: | Minor civil dispute – residential tenancy matter – application to reopen |
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
Reopening application
Mr and Mrs Desplace seek a reopening of the application which was heard and decided on 10 May 2012 when the Tribunal ordered “the respondents, Vaughan and Zarina Desplace, pay to the applicants the sum of $681.71.” Their primary reopening ground is that they did not receive notification of the hearing date.
Background and evidence
By application filed 20 December 2011 the applicants, as former tenants, sought reimbursement of five weeks rent for the period 17 October 2011 to 20 November 2011.
The premises 37 Kooberry Retreat, Macleay Island was rented to the applicants by respondents Mr and Mrs Desplace through the respondents' agent Macleay Island Realty on a two year general tenancy agreement for the period 23 November 2009 to 20 November 2011.
On 17 August 2011 the applicants gave notice of intention to leave on 9 October 2011 but actually vacated on 3 October 2011. On that date an exit condition report was completed and the bond refunded to the applicants who also at or about that time paid rent in full to the tenancy expiry date 20 November 2011.
The applicants asserted that the owners' agent failed to take reasonable steps to readvertise/relet the premises such as to mitigate loss and that the respondents Mr and Mrs Desplace and family stayed overnight at the premises on the week-end of 22/23 October 2011. The applicants further asserted that Macleay Island Realty was instructed not to relet the premises.
The application which initially named Macleay Island Realty as respondent was listed for hearing on 9 February 2012.
On 17 January 2012 the Tribunal ordered:
(1)Application for telephone attendance for applicant is granted.
(2)Any material on which the parties intend to rely on be served on the other party and filed in the QCAT registry by 4:00pm on the business day prior to the scheduled hearing.
On 2 February 2012 respondent Macleay Island Realty by letter to the Tribunal sought “an extension on the date of hearing … as files will have to be accessed from the current management agent if Macleay Island Realty is to be represented fairly for this claim”.
On 9 February 2012 the Tribunal adjourned the application to a date after 9 March 2012. The hearing was reset for 12 March 2012.
On 12 March 2012 Macleay Island Realty sought a final “extension of time… to present the case for Macleay Island Realty as the business was sold and settled on 2 December 2011 and the applicant filed for this hearing after the management of the property was handed over to the owner who subsequently appointed T Barclay Real Estate as managers”.
On 12 March 2012 the Tribunal ordered the application be “adjourned for a fresh date of hearing and that the owners be joined as respondents”. The Adjudicator noted on the day the service address for Mr and Mrs Desplace as “Po Box 549, Waterford Q 4133” and their mobile contact as 0411 536 780.
A fresh hearing date was set for 10 May 2012 on which date the applicants appeared by phone and Ms Fenner appeared for respondent Macleay Island Realty. The Tribunal ordered the respondents Mr and Mrs Desplace pay to the applicants the sum of $681.71.
The service address recorded by the Adjudicator on 12 March 2012 is Mr and Mrs Desplace’s address recorded on the general tenancy agreement.
Both the orders made 12 March 2012 and the notice of hearing for 10 May 2012 were mailed to Mr and Mrs Desplace at Po Box 549, Waterford Q 4133. There has been no return of mail to the Tribunal in respect of any of the mailings to Mr and Mrs Desplace.
Subsequently on 29 August 2012, Mr and Mrs Desplace filed an application for interim order or injunction (which was refused) and a reopening application the subject of this decision.
In the application for interim order or injunction Mr and Mrs Desplace state
“The last document I received stated that the
(1) The application is adjourned for a fresh date of hearing.
(2) The owners be joined as respondents
(3) The applicants to appear by phone.”
That is to say Mr and Mrs Desplace acknowledge receipt of the orders of 12 March 2012. Those orders were mailed to Mr and Mrs Desplace on 12 March 2012. The notice of hearing for 10 May 2012 was mailed to Mr and Mrs Desplace on 23 April 2012.
Mr and Mrs Desplace asserted, “documents were posted to a postal address which we do not use regular and not posted to my home address which all my property managers have and we use regularly”. There is no suggestion that the Po Box 549, Waterford address was not a proper address or that it is an incorrect address. It is not for the Tribunal to inquire as to regularity of use of that address by Mr and Mrs Desplace.
Mr and Mrs Desplace assert that they were overseas for a period of time but do not nominate dates. They state that they were updated on their return.
In their reopening application Mr and Mrs Desplace stated, “we did not receive documents to defend in court. Documents could be posted to my home address which our property manager has. We were also overseas for a period of time.”
It is not enough to raise a home address as a preferable address as the basis for asserting non-notification of Tribunal orders/notices. Whether or not the “property manager” had a home address is a matter as between owner and agent. Once again Mr and Mrs Desplace state they were “overseas for a period of time” but stopped short of nominating dates.
Crucially in this instance the Macleay Island Realty appeared on 10 May 2012. It is clear that Macleay Island Realty was the owners' agent. There is no suggestion anywhere in the reopening application (or indeed the application for interim order or injunction) that Macleay Island Realty was not the authorised agent for Mr and Mrs Desplace. It was Macleay Island Realty that sought extensions to be able to properly contest the applicant’s assertions.
Conclusions
Mr and Mrs Desplace were properly notified of Tribunal orders and hearing dates at their Po Box 549, Waterford address.
Mr and Mrs Desplace have failed to satisfy the Tribunal that such address was an incorrect service address. On the contrary they admit to that address as theirs.
Mr and Mrs Desplace’s authorised letting agent was always for the purposes of the subject matter of the application Macleay Island Realty. They did not assert to the contrary.
Macleay Island Realty appeared at the hearing as owners' agent.
The adequacy of communication between owner and agent is a matter as between those parties.
The Tribunal considers that proper notice of hearing was given to Mr and Mrs Desplace and that the explanations proffered by them are not sufficient to persuade the Tribunal to reopen the application.
The application to reopen the proceeding is refused.
0
0
0