Hansen v Cattle
[2011] QCAT 603
•18 November 2011
| CITATION: | Hansen v Cattle [2011] QCAT 603 |
| PARTIES: | Laurie Hansen |
| v | |
| Ross Cattle t/as Harcourts Mooloolaba |
| APPLICATION NUMBER: | MCDO3149-11 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 16 November 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Member |
| DELIVERED ON: | 18 November 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Ross Cattle t/as Harcourts Mooloolaba pay Laurie Hansen $376.80 within 14 days. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – where appointment of an agent – whether terms of appointment included specific instructions – whether agent breached terms of engagement – whether owner entitled to compensation |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr L Hansen |
| RESPONDENT: | No appearance |
REASONS FOR DECISION
Harcourts Mooloolaba found a tenant for Mr Hansen’s residential property. The tenancy agreement provided that the tenant would pay $650 per week and Mr Hansen would be responsible for maintaining the pool and lawn. Mr Hansen says that the tenancy agreement was contrary to Harcourts’ authority because he had always made it clear that the tenant was to be responsible for maintaining the pool and lawn.
Mr Hansen terminated Harcourts’ agency and brought proceedings for:
Recovery of 3 months’ commission and fees taken by Harcourts when the agency agreement was terminated $1,017.00 Bill from Jim’s Pool Maintenance 199.99 Bill from Jim’s Pool Maintenance 85.00 10 months’ pool and lawn maintenance costs 1,200.00 Mr Hansen’s fees in bringing this application 5,087.50 Filing fee 92.00 Document delivery fee 40.00 Total $7,721.49
Although the property is owned by Mr Hansen, it is clear that most of the dealings with Harcourts were undertaken by Mrs Hansen, as his agent.
The circumstances of Harcourts’ engagement are at the heart of this dispute. Mr and Mrs Hansen say that in September 2009, they engaged both Harcourts and Ray White Caloundra to find a tenant for the property. The Form 20a agency agreement for Ray White has been signed by both parties and a copy provided to the tribunal. That document shows a clear notation that the swimming pool was to be maintained by the tenant. The document is silent about responsibility for the lawn.
Mr and Mrs Hansen say that they signed a similar document for Harcourts and left it on the kitchen bench for the agency to collect. They concede, however, that Harcourts never, in fact, collected that Form 20a. If Harcourts has not seen the document, let alone signed it, it cannot be bound by its terms.
There is another Form 20a which purports to be signed by Mr and Mrs Hansen and Harcourts in November 2008. Mr and Mrs Hansen say that the signatures on the document are not their signatures. They invited me to draw a number of adverse inferences against Harcourts from the fact that it was signed in blank and that the signatures are obviously different. It is a curious document but I find that it does not have a place in this narrative. It is silent about maintaining the pool and lawn and its effect has been superseded by a Form 20a that has, in fact, been signed by all parties.
The tribunal has a Form 20a dated 3 September 2009, just a day or two before the tenancy agreement was signed. There are a number of special conditions noted on the document. Not one of those conditions refers to the pool or lawn maintenance. Mrs Hansen said that the document was completed in a hurry and she overlooked the need to include these items. Given the importance that these items assumed in the Form 20a to Ray White and the draft that Harcourts did not receive, I find that explanation unlikely. The evidence shows that Mr and Mrs Hansen had difficulty in finding a tenant for the property. By the time the property was let, it had been empty for 10 months and the rent had been reduced from $1000 per week to $650 per week. The more likely explanation for the “omission” of the pool and lawn maintenance obligation is that Mr and Mrs Hansen were keen to let the property on less than their ideal terms.
Clause 8.3 of the Form 20a provides that the agent may let the property:
“…for a rental that is in accordance with the instructions of the Lessor or in the absence of specific instructions, for a rental which is reasonably obtainable.”
I am satisfied that there were no specific instructions to Harcourts and, therefore, that it rented the property for a rental that was reasonably obtainable in the circumstances. The rental agreement requires the owner to provide pool and lawn maintenance services. The claim for $1,200 for Mr and Mrs Hansen’s cost of providing those services must fail.
[10] The Form 20a provides that the appointment may be terminated by 90 days’ notice in writing. Mrs Hansen has written “30 days” next to that clause and says that the parties agreed that the notice period would be 30 days. Neither party has initialled this important change whereas Mrs Hansen did take the time to initial a change to the letting commission rate (reduced from one week’s rent to half a week’s rent). I am not satisfied that Harcourts did agree to this change. The claim for recovery of 3 months’ commission and fees (which Mr and Mrs Hansen conceded at the hearing could be no more than a claim for 2 months’ commission and fees) must fail.
[11] The Form 20a provides that pool maintenance is to be carried out by Chris Ronson. The two invoices for pool maintenance and repair are not from Mr Ronson and Harcourts has not explained why it did not engage Mr Ronson. Mr and Mrs Hansen are entitled to reimbursement of these costs which were incurred contrary to their express instructions. The actual amounts of the invoices are $199 and $85.80, giving a total of $284.80.
[12] Mr Hansen has also claimed $5,087 fees as his time, valued at $55 per hour for “court related matters”. That is the rate nominated by Harcourts on the Form 20a as a “mediation/tribunal hearing fee (including preparation)”. I cannot accept that Mr Hansen has spent 92.5 hours preparing for this hearing. He may have spent that time in discussions with the Office of Fair Trading but that time is not referable to this dispute. Further, Mr Hansen has not justified this fee to the tribunal in any other way and he has not demonstrated that it is a “loss” to him. This claim must also fail.
[13] Because Mr and Mrs Hansen have been partly successful in the claim, I will allow the filing fee of $92.00. I can find no evidence of a fee of $40 for “document delivery” to Harcourts. This claim must fail.
[14] Mr and Mrs Hansen have not satisfied me that it was a condition of Harcourts’ appointment that any rental agreement would require that the tenant bear the cost of pool and lawn maintenance. Therefore, Harcourts had a general obligation to obtain the best rental it could and I am satisfied that it did fulfil that obligation, albeit on terms that Mr and Mrs Hansen did not particularly like. I am also satisfied that Harcourts did not agree to a reduction in the notice period from 90 days to 30 days. I am satisfied that Harcourts engaged Jims Pool Services contrary to an express direction to use Mr Ronson.
[15] I order Ross Cattle t/as Harcourts Mooloolaba to pay Mr Hansen $376.80 within 14 days.
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