Eising v Westgarth Realty Pty Ltd

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Eising v Westgarth Realty Pty Ltd [2019] QCATA 120

PARTIES:

LINDY MAREE EISING
(applicant/appellant)

v

WESTGARTH REALTY PTY LTD

(respondent)

APPLICATION NO/S:

APL301-18

ORIGINATING APPLICATION NO/S:

MCDT 15/18

MATTER TYPE:

Appeals

DELIVERED ON:

2 August 2019

HEARING DATE:

27 March 2019

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

ORDERS:

1.   Extension of time to file leave to appeal granted.

2.   Leave to appeal granted.

3.   Appeal dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where tenant agreed to special conditions for professional carpet cleaning and pest control at the end of the term – where she defaulted contending they were against the law – where a bond release order made in lessor’s favour – whether leave to appeal should be granted – whether appeal should be allowed.

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 13
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 53(1), 54, 171, 188, 216

Residential Tenancies Authority v Vespar Pty Ltd t/as Coral Sea Property Management (unreported, Mag Ct Townsville, 00208456/17(2); 00208452/17(7); 00208426/17(6); 00208468/17(1), 22/03/2018).

APPEARANCES & REPRESENTATION:

Applicant:

Ms Eising by phone

Respondent:

Mr GM Westgarth, Westgarth Realty Pty Ltd in person

REASONS FOR DECISION

1. The applicant tenant was late filing so needs an extension of time as well as leave to appeal.

2. The proposed ground is, in effect, that an adverse bond release order under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) is not a just and equitable one for resolving a tenancy dispute within s 13 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) because of interpretative or application error.

   The context

3. The applicant rented residential premises through the respondent agent.  Carpets were professionally cleaned and the dwelling fumigated before entry. During the six (6) months term she kept four (4) inside dogs and a pet budgie.

4. Section 188(4) RTRA Act as well as clause 37 of the general terms of agreement (GTA) obliged the applicant to leave the premises and inclusions (that is, anything left for the tenant’s use), as far as possible, in the same condition they were in at the start, fair wear and tear excepted.

5. Also, under special conditions 1 and 3 she specifically “...acknowledges the carpets are to be professionally cleaned at the end of the tenancy or every 12 months” and “the premises to be fumigated by a professional fumigator”.

6. Using specialist trade products from Bunnings the applicant chemically cleaned the carpets and treated the premises for pests before vacating but refused to comply with the special conditions based on legal advice that outgoing tenants in Queensland cannot be forced to pay for professional services or use a particular supplier.

7. The respondent filed a minor civil dispute application on the lessor’s behalf for breach of end of tenancy terms claiming, among other things, reimbursement of the cost of the agreed services.

8. The tribunal made no specific findings but enforced the special conditions as reasonable and…