Hart-Huezo v O'Meley
[2014] QCAT 389
•29 July 2014
| CITATION: | Hart-Huezo v O’Meley [2014] QCAT 389 |
| PARTIES: | Jane Hart-Huezo (Applicant) |
| v | |
| Phillip O’Meley (Respondent) |
| APPLICATION NUMBER: | MCDO138/12 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 3 June 2014 |
| HEARD AT: | Coolangatta |
| DECISION OF: | Adjudicator Trueman |
| DELIVERED ON: | 29 July 2014 |
| DELIVERED AT: | Coolangatta |
| ORDERS MADE: | 1. That the claim is dismissed. |
| CATCHWORDS: | Minor Civil Dispute – residential tenancy matter – claim for compensation by Lessor for rent arrears, water usage, electricity, damages and repairs – where respondent filed a response – where matter proceeded ex parte - where application to reopen and set aside order– matter remitted for rehearing – whether evidence to support claim for compensation Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | In person |
| RESPONDENT: | In person |
REASONS FOR DECISION
Mrs Hart-Huezo owns a property located at 190 Austinville Road in Austinville. There are multiple residences on the property. Mrs Hart-Huezo rented a house to Mr O’Meley on the property. Mrs Hart-Huezo does not live at the property but it is alleged her daughter and other tenants live in various residences located on the property.
HISTORY OF PROCEEDINGS
Mrs Hart-Huezo filed a minor civil dispute – minor debt claim for the sum of $2,547.63. Her application was filed 23 October 2012. She claims for rent, power, water, damages and cleaning costs. Mr O’Meley filed a response on 23 October 2013. He disputes the claim.
The matter was heard and determined in the absence of Mr O’Meley on 18 June 2013 by an Adjudicator. An order was made for the Respondent to pay to the Applicant the sum of $1,718.00. The order did not specify a time frame for the payment.
Mr O’Meley filed an application on 28 April 2014 seeking leave for an extension of time to file an application to re-open, together with an application to reopen the proceedings and supporting evidence. Leave was granted for the extension of time and an order was made on 20 May 2014 to reopen the proceedings and for the matter to be listed for hearing. The matter was listed for hearing on 3 June 2014.
The matter was heard on 3 June 2014 and leave granted to the parties to file further evidence regarding rent payments.
EVIDENCE
Mr O’Meley signed a residential tenancy agreement on 28 November 2011 for the property at 190 Austinville Road Austinville for a fixed term period of 12 months. The lease commenced on 28 November 2011 and it was due to end on 28 November 2012. The lease provided the fixed term could be changed if circumstances changed. The rent was $450.00 per week and the tenant was required to pay for all electricity, gas and telephone. The lease provided that the tenant must contribute to fuel for the water pump. It was alleged that the property was individually metered for electricity to the main house that Mr O’Meley rented.
Ms Hart-Huezo alleges Mr O’Meley left the property without paying all his rent and owes money for water, cleaning, rent for storage of a shipping container, damage to property and power. Her claim is particularised as follows:
a.Rent arrears $900.00
b.Water $120.00
c.Electricity $270.00
d.Clean Oven $150.00
e.Shipping container rent $600.00
f.Damage to 3 floor rugs $300.00
SUB TOTAL $2340.00
g.Less credit for gas $143.00
h.Electric advance $100.00
i.PLUS further 1 week from 11-18 June 2012
$450.00
TOTAL $2547.00
Ms Hart-Huezo provided some copies of electricity bills to prove power costs and some bank statements to prove rental payments made by Mr O’Meley.
A previous order made by QCAT for Southport claim number 221/12 dated 27 April 2012 declaring that Mr O’Meley’s tenancy was a periodic tenancy since 28 November 2011 and dismissing the application for termination was provided to the tribunal.
Ms Hart-Huezo provided as evidence a ledger hand written by her as proof that Mr O’Meley has paid rent since the commencement of the tenancy and was paid up to 11 June 2012. Mrs Hart-Huezo said Mr O’Meley vacated the property on 16 June 2012 and did not provide her with any Notice of his intention to leave. She claims rent for that period. Ms Hart-Huezo alleges that Mr O’Meley had a shipping container at the property which was not approved and she says he owes her $50 per week for the 12 weeks that the shipping container was at the property from 29 March to 16 June 2012.
A power bill issued on 23 June 2012 for the period 20/3/2012-20/6/2012 was in the name of Ms Hart-Huezo. The account appears to list 3 separate meters for the property. Ms Hart-Huezo alleges that the meters relate to various tenants including “Tineke”, for the “House” and for “Fish”. She herself has calculated the amount of power that Mr O’Meley has used and what he is required to pay. It is alleged he rents the house and his meter number is 647730/1.
Mr O’Meley said he rented what was described as a house at 190A Austinville Drive in Austinville. The house was situated on 10 acres of land and was jointly owned by Ms Hart-Huezo and her daughter. He said he was assaulted by Ms Hart-Huezo on 6 July 2012 and she was charged with assault. He said he was hospitalised and upon release he moved from the property about a week later as Ms Hart-Huezo threatened to kill him. He provided medical evidence regarding the injuries sustained during the alleged assault by his “previous landlord and her son”.
Mr O’Meley said Ms Hart-Huezo served him with Form 11 Notices to Remedy Breach and a Form 12 Notice to Leave on 26 May 2012. He said he was given until 2 June 2012 to vacate and to handover the property to her. A copy of the relevant Form 12 Notice to leave was attached to the original claim. He said he moved from the main house as requested and moved into the house on the property owned by Ms Hart-Huezo’s daughter. He said he was her guest there until he could find alternative suitable accommodation. He said Ms Hart-Huezo is incorrect in stating that he did not move out til 16 June and that he did not give notice so is liable for rent up to 26 June 2012.
Mr O‘Meley provided evidence from Ms Tineke Hart by statutory declaration sworn 28 May 2014[1] stating that Mr O’Meley moved into her house in and was renting a room after the eviction by her mother.
[1] Exhibit 1.
Further evidence was provided to the tribunal by Ms Hart-Huezo including bank statements and proof of further cash payments made by Mr O’Meley for rent payments. Ms Hart-Huezo filed other evidence without leave from the tribunal and that evidence was not taken into account not relied upon.
Mr O’Meley said that the arrangement that was in place was when the power bill came in it was divided between tenants who lived at the property. He said the power was divided between him, the daughter and other tenants. He said he paid for all monies he owed for rent, power and water.
Mr O’Meley said that the shipping container was not his and that he did not place it on the property. He said the container belonged to another tenant who had lived at the property and had left it there. He said that this tenant did eventually move the container. He said he should not be responsible for any rent or anything else to do with the container
Mr O’Meley said his rental bond was retuned to him from the RTA and he denies owing any money to Ms Hart-Huezo.
Ms Hart-Huezo filed further evidence pursuant to the order made on 3 June 2014 and further evidence regarding rent payments.
LEGISLATION
Although Ms Hart-Huezo filed her claim as a minor civil dispute – minor debt, the matter is actually a residential tenancy matter and has been heard and determined as such. The tribunal may give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding.[2] That includes the requirement to treat a minor debt matter as a tenancy matter without requiring the Applicant to commence proceedings again and dispensing with her to have to file a new application on the appropriate form. The tribunal may act under this section on the application of a party to a proceeding or on the tribunal's own initiative.[3]
[2] Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 62.
[3] Ibid s 63.
The relevant legislation relating to this case is based on the fact that it is a residential tenancy matter and consideration regarding compensation matters, in particular section 419[4].
[4] Residential Tenancies and Rooming Accommodation Act 2008 (Qld).
The Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the “Act”) states that any claim for compensation must be filed within 6 months of the lessor becoming aware of the breach.[5]
[5] Ibid s 419(3).
The Act provides that before a claim for compensation under the Act can be filed with the tribunal the parties must attend dispute resolution and provide to the tribunal evidence that the conciliation process has ended without a resolution being reached.[6] The conciliation process does not apply to urgent applications[7].
[6] Ibid s 416.
[7] Ibid s 416(2).
A tenant must pay for water consumption at a rental property if the tenants use or share the benefit of the water[8], and the property is individually metered for the water supply or water is delivered by means of a vehicle[9] and the lease provides that the tenant must pay for the water consumed[10]. The property should also be water efficient[11] and if they are not the tenant may only be required to pay a sum as a contribution towards water consumption charges. The amount to be paid would be considered in light of what would be an amount payable for a reasonable quantity of water supplied to the premises[12].
[8] Ibid s 166(2)(a).
[9] Ibid s 1266(2)(b).
[10] Ibid s 166(2)(c).
[11] Ibid s 166(3).
[12] Ibid s 166(4).
A tenant usually pays for the power supply to the rental property in which they reside. Section 164 of the Act refers to what a service charge means. It includes electricity, gas or water supplied to the premises or another service or facility used at or supplied to the premises. Service charges supplied to premises must only be paid for by a tenant if they enjoy or share the benefit of the service[13]. If the relevant service is not individually metered the tenant may be required to only pay for an amount towards the cost of that service if the lease agreement specifically states that the service is payable[14], how the apportionment is to be calculated[15], and how the cost is to be recovered from the tenant by the lessor[16]. A tenant may not be required to pay for the outgoing charges if the premises are not individually metered.[17] Even if the premises are individually metered a tenant may not have to pay the outgoings if the lease agreement does not provide a method of calculating what the actual amount is payable that is prescribed[18] or if prescribed, the amount charged by the relevant supply authority for the quantity of power used[19].
[13] Ibid s 165(1).
[14] Ibid s 165(2)(a).
[15] Ibid s 165(2)(b).
[16] Ibid s 165(2)(c).
[17] Ibid s 165(3)(a).
[18] Ibid s 165(3)(b)(i).
[19] Ibid s 165(3)(b)(ii).
CONCLUSIONS
It was appropriate that the application to reopen was granted as the court file indicates that Mr O’Meley was not provided with notice to attend the hearing on 18 June 2013 due to the fact that the Notice of hearing was sent to the property at 190 Austinville Road, where he had vacated as at the time of the hearing. Ms Hart-Huezo would have been well aware that Mr O’Meley was not living at the rental property at the time the matter was heard and determined in June 2013 and in fact had moved out approximately a year earlier.
This matter is a non-urgent residential tenancy compensation dispute. Ms Hart-Huezo did not file with the tribunal a Notice of Unresolved Dispute from the Residential Tenancy Authority. Ms Hart-Huezo filed a copy of a Form 16 Dispute Resolution Request form signed by her and dated 17 July 2012, but there was no evidence attached to the claim that the parties actually participated in the conciliation process and that agreement was not reached. Ms Hart-Huezo has therefore not complied with section 416 of the Act in providing the tribunal with evidence that the claim could have been filed as the conciliation process had ended without a conciliated resolution having been reached. On that basis alone the claim should have been dismissed. However, a copy of the notice was provided to the tribunal at the hearing of the matter.
Does Mr O’Meley owe any rent?
Mr O’Meley says he paid all rent owing up to the time he left. He said he left in June 2012 after being served with a Notice to leave. He said he left as requested and that all rent was paid up to the date he left. Ms Hart-Huezo claims he did not give her notice and must therefore pay rent up to 26 June 2012. I do not agree with her on that point. Mr O’Meley was living at the property on a periodic lease. He was given a formal Notice to Leave. He said he left under that notice. There is little evidence to prove what date Mr O’Meley actually left. Mr O’Meley said he didn’t owe any rent. The rental ledger prepared by Ms Hart-Huezo is confusing and at the hearing alleged he had paid rent up to 11 June. She said he moved out on 16 June without giving notice. She claims the periodic agreement finished on 26 June 2012. Both parties disagree on the date the agreement ended. The lease ended sometime in June 2012, nearly two years ago. A lengthy period of time has elapses since that event, and it is impossible for me to adequately make a definitive finding on that point.
A periodic agreement ends when either party gives notice of that, Ms Hart-Huezo gave Mr O’Meley a notice to leave, so he left. In the absence of any proof that he did not vacate later than the date of the notice to leave, being 2 June 2012 I am satisfied he paid for rent under the lease agreement up to the date he left. I find that he was not required then to give notice to the Lessor of his intention to leave and his rent obligations ceased under the Lessor’s Notice to leave issued on 26 May 2012. The claim for rent arrears against the tenant must fail.
Is Mr O’Meley liable to pay for power and water?
The evidence suggests that Mr O’Meley has paid for some water and power while living at the property. The rent ledger prepared by Ms Hart-Huezo indicates some payments for power and water has been accepted by her.
The lease is unusual as it provides for Mr O’Meley to provide a payment for a contribution for fuel for the water pump, I presume, to supply water to the property. The lease does not provide for payment of actual water consumption. I do not believe that a contribution for the cost of fuel for the water pump is fair and reasonable in the circumstances. I find that there is no evidence whatsoever as to what the actual costs are for the fuel for the water pump and as such that the tenants should not be liable for those costs. In the absence of any evidence as to the costs of the water pump fuels that claim should fail.
The lease provided that electricity is to be paid for by the tenant and under item 13 of the lease, if the property is not individually metered the separate meter for the main house is to be paid for by Mr O’Meley. Mrs Hart-Huezo claimed that Mr O’Meley lived in the main house. The main house was identified on the power bills as the power consumed and recorded by meter number 647730/1.
The evidence suggests that the house Mr O’Meley lived in was a two storey shared house and that he lived in the upstairs part of the property and another tenant lived in the bottom part of the house. I do not know how many people lived in the bottom part of the property and what meter relates to what part of the house. I am unsure as to how the lessor divides the power bill between what tenants and if that calculation is fair and reasonable in the circumstances. The lessor cannot with any clarity explain or provide evidence as to how the power costs are divided between respective tenants and in the absence of that evidence I find that the cost of power allegedly owed by Mr O’Meley to be unfair.
The lease agreement is fatally flawed in that if Ms Hart-Huezo requires tenants to pay for the power usage, the lease should provide better particulars. For example, the lease should perhaps identify the meter number and proof that the meter relates to the particular property in question. The lease should identify how the power usage is to be paid, and the calculation of what contribution each tenant should make to the power usage costs. I find that based on the evidence, that Mr O’Meley should not be required to make any further payment towards power costs. The claim for power must therefore fail.
Should Mr O’Meley pay for cleaning costs?
Ms Hart-Huezo did not provide any receipt or evidence to support her claim for cleaning costs in the sum of $150.00. She stated that the oven required cleaning after Mr O’Meley moved out. She did not prepare an Exit Condition report nor provided any photos of the alleged unclean oven. Mr O’Meley said he cleaned the property before he left. He said Mrs Hart-Huezo did not say anything to him about the oven not being cleaned. He said he moved into another house on the same property with Ms Hart-Huezo’s daughter and if the oven had been dirty he could have gone back to clean it. He disputed the claim. In the absence of any evidence that the oven was cleaned with a cost incurred by Ms Hart-Huezo her claim must fail.
Should Mr O’Meley pay for damages to 3 rugs at the property?
Ms Hart-Huezo alleges that Mr O’Meley damaged three rugs that were in the property when he lived there. She said they were damaged by ink. She claims the replacement cost of $300.00. Ms Hart-Huezo did not provide any receipts or proof for the purchase or replacement costs of the rugs.
The lease agreement did not include an inventory but did add in Item 5.2 the inclusions of the premises included 7 floor mats and a wood box. There were no photos of the mats or evidence of the alleged damaged rugs. In the absence of any evidence that the rugs were damaged and evidence as to the purchase price or replacement costs the claim for damages to the rugs must fail.
Is Mr O’Meley liable to pay for rent for the shipping container?
Mr O’Meley gave evidence that the shipping container that Ms Hart-Huezo seeks rent from him for was not his. He conceded that a container was on the property but he said that it belonged to another tenant. He said that it was not his responsibility to remove it and that eventually the tenant who owned the container eventually removed it.
Ms Hart-Huezo said that the container belonged to Mr O’Meley. She claimed that the container had belonged to Mr Stuart Gardener, a previous tenant, but that he told him that he had sold the container to Mr O’Meley. She said that she served Mr O’Meley with Form 11 Breach Notices relating to the container. She provided a copy of various Form 11’s issued to him on 7 and 17 April and 25 May 2012 for him to “remove the shipping container”. Ms Hart-Huezo then served Mr O’Meley with two Form 12 Notices to leave, on 9 and 26 May 2012, citing one of the reasons for the Notice to leave was due to him not remedy breach for shipping container and sought “costs of having shipping container $50 per week since 29/3/2012 8 weeks =$400.”
Mr O’Meley denies the claim for rent for the shipping container situated on Ms Hart-Huezo’s land. Ms Hart-Huezo could not produce any evidence that Mr O’Meley owned the container or that he was responsible for placing it on her land. Mr O’Meley’s lease agreement did not provide for rent for a shipping container and the evidence provided by Ms Hart-Huezo does not support her claim. Mr O’Meley said that the shipping container was on the property before he even signed the lease and that when he was questioned about it he referred “Ms Hart-Huezo to speak to her daughter about it.”
Ms Hart-Huezo could not provide sufficient evidence to warrant an order in her favour for payment of rent from Mr O’Meley for the shipping container. I cannot make any findings as to who actually owned the container and who in fact removed it. The claim for rent for the container must fail.
For the reasons given the order I propose to make to give effect to the decision I have reached is as follows:
Order
That the claim is dismissed.
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