Harms v Ludwigs
[2017] QCAT 300
•24 August 2017
CITATION: | Harms v Ludwigs & Anor [2017] QCAT 300 |
PARTIES: | Carmel Elizabeth Harms |
| v | |
| Anna Ludwigs (Respondents) | |
APPLICATION NUMBER: | T46/17 |
MATTER TYPE: | Residential tenancy matter |
HEARING DATE: | 4 May 2017 |
HEARD AT: | Gladstone |
DECISION OF: | Magistrate Clarke |
DELIVERED ON: | 24 August 2017 |
DELIVERED AT: | Rockhampton |
ORDERS MADE: | Residential Tenancies Authority pay remaining bond of $828.00 as follows: |
CATCHWORDS: | LANDLORD AND TENANT – RIGHTS AND LIABILITIES APART FROM COVENANT – OTHER MATTERS – where parties entered into lease for two year period – where lease contained provision for only one pet, a spoodle dog, to reside at the premises – where agent became aware of birds at the property – where respondents did not comply with requests to remove the birds and sought approval for birds to remain – where approval was not given for birds to remain at the property and the respondents subsequently terminated the lease – where applicant claimed for rent owed, re-letting fees and cleaning costs – where respondents counter-claimed for internet connection fees – whether the parties proved the factual matters alleged in their claims – whether the parties are entitled to recover the monies claimed Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4 |
APPEARANCES: | |
APPLICANT: | Ms Anna Clarke |
RESPONDENTS: | Ms Anna Ludwigs |
REASONS FOR DECISION
On 1 August 2017 notification was provided that a party to the proceeding had requested a statement of reasons. Given the delay, a transcript of the hearing on 4 May 2017 was sought. The transcript was received on
23 August 2017. I have had an opportunity to reconsider a copy of the filed material, and refreshed my memory from the transcript, which included the reasons the order was made.
As a judicial officer hearing matters brought before the Queensland Civil and Administrative Tribunal (QCAT), I am well aware of the objects in s 3 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act), and strove to perform the Tribunal’s functions in pursuance of s 4 of the Act.
Before the hearing had commenced with the parties present, I had an opportunity to consider the material filed in the proceedings. In the hearing, the parties were afforded sufficient time to make all submissions and arguments, which were considered in their entirety, being mindful of the need to afford natural justice and a fair hearing to the parties.
The dispute arose after the termination of a tenancy at 15 Gwen Street, Tannum Sands. The Respondents had entered into a two-year tenancy agreement commencing 16 December 2016. Ms Ludwigs had specifically executed a clause in that agreement allowing the tenants to have a spoodle dog reside at the house, provided he remain in the yard. There was no approval for other pets to reside at the rental property.
The letting agent became aware of the presence of birds being at/residing at the property and sent emails (items 5 and 6 to the Applicant’s material) confirming the failure of the tenants to disclose that, and the need for the birds to be removed. Ms Ludwigs replied, requesting the birds be allowed to remain. Approval was not forthcoming and a Notice to Remedy breach was forwarded to the Respondents (item 7).
The tenancy was terminated by agreement, pursuant to s 277 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRAA). The Applicant subsequently made a claim for compensation for unpaid rent, cleaning costs, and the costs incurred in re-advertising and trying to find a replacement tenant (re-letting fees), following the break lease action of the Respondents.
The compulsory mediation/conciliation process undertaken in accordance with s 416 RTRAA did not lead to a resolution of these disputes, according to the certificate of Ms Dalton dated 6 April 2017.
These proceedings were in respect of the claim for rent, re-letting fees, cleaning costs and the cost of instituting the QCAT proceedings (filing fee), in the sum of $891.20.
The Respondents counter-claimed, seeking orders the claim of $891.20 be “waived”, and claimed a total of $762.00 for the cost of telephone/internet re-connection and the extra rent incurred in relocating to a subsequent rental property, following the termination of the tenancy.
At the hearing, I was informed the Residential Tenancies Authority (RTA) had paid to each of the Respondents a total of $372.00 out of the $1200.00 bond, leaving a balance held by the RTA of $828.00 for disbursement upon order of the Tribunal.
In the course of the hearing, I had some difficulty accepting what Ms Ludwigs said. She maintained the birds did not actually move into the residence, but that seemed to me to be at odds with the complaints of a neighbour that the letting agent had acted upon, and inconsistent with her obvious attachments to her pet birds, a galah and a green cheek conure.
Ms Ludwigs clearly contradicted herself in providing direct answers to questions asked of her: at page 5 of the transcript she confirmed she had not disclosed her desire to have her birds stay with her, in the course of applying for the tenancy; almost immediately asserting at page 6 that she had, in fact, disclosed that to two letting agents. The Applicant’s representative confirmed that was not the case, stating the landlord/owner was particular about any approval to allow pets, and the specific requirement/agreement about the spoodle dog was something of which Ms Ludwigs was well aware.
Ms Ludwigs also stated her use of “proper English where I use present tense” had led to some confusion about whether she was asserting in her emails the birds had already moved to the rental property, or not. Ms Clarke seemed to concede the Respondents had not fully moved into the property by the time the issue with the birds was brought to the attention of the Respondents, and I did not need to make a determination about that.
In any event, I had difficulty accepting the veracity of Ms Ludwig’s account. I do not accept that she disclosed that she had birds or sought any approval for the birds to stay with her, prior into entering into the tenancy agreement.
Notwithstanding those reservations, I was prepared to make a finding the Respondents should not be liable for the rental claimed. It seemed to me the Respondents had acted in good faith once the issue with the birds was raised. The letting agent had been able to secure a replacement tenant in a short time frame, obviously complying with the Applicant’s duty under
s 362 RTRAA.
Although the need to find a new tenant had been occasioned in the first place by the Respondents not seeking approval to have the birds reside with them, which had led to the inevitable termination of the tenancy, it seemed to be a “doubling” of the claim for compensation to claim rent and also re-letting fees. In my view, it was appropriate to allow the claim for the re-letting fee of $330.00, consistent with Part 2 paragraph 7 of the tenancy agreement. The re-letting fee had actually been incurred, and had only been incurred following the failure of the Respondents to abide by the terms of the tenancy agreement.
I also did not uphold the claim for cleaning. At the hearing, Ms Clarke sought to amend the amount claimed to $60.00 for the yard. Given the very short time frame of the tenancy, the information provided by Ms Ludwigs about the state of the property before she moved in (which was not contradicted by Ms Clarke) and on reviewing the photographs provided by the Respondents, I was not convinced of that cost having been incurred, and I disallowed that claim.
In the circumstances, I considered it appropriate to only order the Respondents pay for the cost of the re-letting fee and the filing fee.
As to the counterclaim, I was of the view it lacked any basis whatsoever. Clearly, I considered the counterclaim, and did, in fact, “waive” or not uphold a significant portion of the Applicant’s claim, based on the evidence filed and the submissions made.
The claim by the Respondents to be reimbursed for the internet/ telephone reconnection costs and rental at the subsequent rental accommodation was remarkably ill founded: the fact the Respondents had been placed in the position of the terminated tenancy was entirely due to the active non-disclosure of the birds. In those circumstances, there was no basis for claiming the amount of $762.00 and I dismissed that claim accordingly.
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