Fogarty v Hughes - [2024] QCAT 273

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Fogarty & Anor v Hughes [2024] QCAT 273

PARTIES:

MARY ANNE KARLA FOGARTY

(applicant)

KERRY PARKER

(applicant)

v

MERRYN HUGHES

(respondent)

APPLICATION NO/S:

T1468/20

MATTER TYPE:

Residential tenancy matters

DELIVERED ON:

9 July 2024

HEARING DATE:

9 May 2024

HEARD AT:

Southport

DECISION OF:

Adjudicator Alan Walsh

ORDERS:

1.     Pursuant to section 135(1)(a), (b) and (d), and section 135(2) of the Queensland Civil and Administrative Tribunal Act2009 (Qld), the error in the date of the Order reserving the Tribunal’s final decision made on 9 May 2024 and emailed to the Respondent at 2:32 PM that day is corrected by the Tribunal of its own motion to read 9 May 2024, not 1 May 2024.

2.     QCAT Registry re-issue to the parties that Order so amended.

3.     The Respondent on or by 8 August 2024 pay the Applicants AUD$3,400 for claim and AUD$125.40 for filing fee, in total AUD$3,525.40, converted if required into New Zealand Dollars if transferred to a bank in New Zealand at the direction of the Applicants.

4.     The Applicants forthwith inform the Respondent by email of their bank account details including the name of the bank, the branch and address of the bank, the name of the account holder/s, the BSB and Account number, and any other information required to ensure secure electronic transfer of money in compliance with Order 3.

CATCHWORDS:

LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES - RENT – where applicants were tenants of respondent – where applicants paid rent to end of fixed term tenancy upon respondent’s demand but vacated early due to Covid-19 pandemic – where tenancy ended only on the last day of fixed term tenancy – where respondent allowed others to occupy tenancy in the period for which applicants had paid rent in advance – where tenants demanded rent refund for the period of such occupation by invitees of respondent - whether failure of consideration on that account – whether respondent unjustly enriched - whether respondent in breach of the tenancy agreement and Residential Tenancies and Rooming Accommodation Act 2008 (Qld) – whether tenants entitled to compensation for breach of contract and statute – measure of compensation in that event – whether rent refund ought be ordered

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12, s 13

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 182, s 183, s 188, s 192, s 197, s 277, s 317, s 326, s 327, s 415, s 416, s 417, s 419, s 420

Hughes v Fogarty [2022] QCATA 190

Hughes v Fogarty & Anor [2024] QCATA 21

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Application

This is an application for a residential tenancy dispute in Queensland in terms of which the applicant claims from the respondent repayment of $3,400.00 for rent calculated as $595 per week for 40 days paid for the period 11 July to 19 August 2020.[1]
[1]Email…

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 Fogarty v Hughes

Details

AGLC: Fogarty v Hughes [2024] QCAT 273
Case: [2024] QCAT 273
Decision Date: 9 July 2024

CaseChat Overview and Summary

In the matter of Fogarty v Hughes, the applicants were tenants of the respondent, who owned a residential property in Queensland. The applicants vacated the property early due to the Covid-19 pandemic but continued to pay rent until the end of the fixed term tenancy. The respondent allowed others to occupy the property during the period for which the applicants had paid rent in advance. The applicants sought a refund of the rent paid for the period of occupation by the respondent's invitees, alleging that the respondent was in breach of the tenancy agreement and the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). They also sought compensation for the breach of contract and statute.

The legal issues before the court were whether the failure of consideration due to the respondent's actions constituted a breach of the tenancy agreement and the statute, whether the respondent was unjustly enriched, and if so, whether the applicants were entitled to compensation for the breach. The court had to determine the measure of compensation in the event of a breach and whether a rent refund should be ordered. The applicants argued that the respondent's actions constituted a breach of the tenancy agreement and the statute, and they were entitled to compensation for the breach. They submitted that the measure of compensation should be the rent paid for the period of occupation by the respondent's invitees.

The court found that the respondent had breached the tenancy agreement and the statute by allowing others to occupy the property during the period for which the applicants had paid rent in advance. The court held that the failure of consideration due to the respondent's actions constituted a breach of the tenancy agreement and the statute. The court also found that the respondent was unjustly enriched and that the applicants were entitled to compensation for the breach. The measure of compensation was the rent paid for the period of occupation by the respondent's invitees, which amounted to AUD$3,400. The court ordered the respondent to pay the applicants AUD$3,400 for the claim and AUD$125.40 for the filing fee, in total AUD$3,525.40. The court further ordered the respondent to pay the amount by 8 August 2024, and the applicants to inform the respondent of their bank account details to ensure secure electronic transfer of money in compliance with the order.

Orders

Orders of the court

1. Pursuant to section 135(1)(a), (b) and (d), and section 135(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the error in the date of the Order reserving the Tribunal’s final decision made on 9 May 2024 and emailed to the Respondent at 2:32 PM that day is corrected by the Tribunal of its own motion to read 9 May 2024, not 1 May 2024.

2. QCAT Registry re-issue to the parties that Order so amended.

3. The Respondent on or by 8 August 2024 pay the Applicants AUD$3,400 for claim and AUD$125.40 for filing fee, in total AUD$3,525.40, converted if required into New Zealand Dollars if transferred to a bank in New Zealand at the direction of the Applicants.

4. The Applicants forthwith inform the Respondent by email of their bank account details including the name of the bank, the branch and address of the bank, the name of the account holder/s, the BSB and Account number, and any other information required to ensure secure electronic transfer of money in compliance with Order 3.

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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