Haupt Minniti Super Fund v Doug Hull Real Estate and Metro Star Pty Ltd
[2013] QCAT 386
•12 July 2013
| CITATION: | Haupt Minniti Super Fund v Doug Hull Real Estate and Metro Star Pty Ltd [2013] QCAT 386 |
| PARTIES: | Haupt Minniti Super Fund (Applicant) |
| v | |
| Doug Hull Real Estate and Metro Star Pty Ltd (Respondents) |
| APPLICATION NUMBER: | MCD931-13 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 4 June 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Paul Favell, Member |
| DELIVERED ON: | 12 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is dismissed. |
| CATCHWORDS: | RESIDENTIAL TENANCY MATTER - Claim for loss of rent and cost of remote control based on a claimed guarantee by agent – no guarantee in writing – respondent company in liquidation |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Canditto Minniti |
| RESPONDENT: | Amelia Edwards for Doug Hull Real Estate Bap Romano for Metro Star Pty Ltd (now liquidated) |
REASONS FOR DECISION
The applicant entered into a contract to purchase 39/2 Ridgeline Way, Highland Park on December 1 2011. The vendor was Metro Star Pty Ltd. The agent was Doug Hull Real Estate Pty Ltd.
At the start of the proceedings I was told that Metro Star Pty Ltd has been liquidated. I understand that is accepted by all parties and it was accepted by the applicant that there could no longer be a claim against Metro Star Pty Ltd without the company being reinstated.
The applicants rely upon a representation told to them by Doug Hull that the owner of the property, being the developer of the estate, Bap Romano, would lease back the unit for 3 years at $550 per week guaranteed and use it as a display unit.
They point to a letter dated 1 December 2011 on Doug Hull Real Estate letterhead which contained the following:
As discussed with you on our negotiations of the purchase of the above property I have confirmed in writing below my undertaking. Upon settlement of the abovementioned property and upon execution of the appointment form PANDA 20A in favour of Crewglen Pty Ltd t/as Doug Hull Real Estate to take on the management of the property, in return we shall grant a rental guarantee for a gross rental of $550.00 per week for a period of three years from the settlement date. As you realise, this is a genuine offer, but I do understand your commitment to a superannuation fund relying on the income and as you can see, I have backed my services and ability. I look forward to a long and happy association with you.
The letter was signed by Doug Hull, principal/director Doug Hull Real Estate.
Other than that letter there was no guarantee in writing.
A general tenancy agreement was entered into with the tenant as Metro Star Pty Ltd and the lessor’s agent noted as Crewglen Pty Ltd trading as Doug Hull Real Estate Pty Ltd. The agreement was for a fixed term of three years to end on 8 March 2015. The rent was $550.00 per week subject to a special condition that the rent would be reviewed annually and to rise by the amount of the current CPI rate.
The applicant says that rent was in arrears immediately and the first rental payment was received on 3 April for three weeks rent. The next payment was received on 1 May. Throughout 2012 the rent was paid sporadically and usually several weeks behind. There were problems so far as the applicant was concerned with rent being paid late or on incorrect dates or not paid at all.
In December 2012 the applicants advised the agent by phone that because of the constant breaches of the tenancy agreement by the tenant they wanted the tenant to pay all rent due within 7 days or the agent should commence eviction proceedings. After a number of notices to remedy breach notices were delivered, a notice to leave was issued on 7 January 2013.
The application filed in QCAT on 4 April 2013 simply claims a breach of agreement and seeks $8,200.00 being made up of $7,500.00 for rent arrears and $800.00 for electronic controls for the garage. Although the claim is also made against Crewglen Pty Ltd trading as Doug Hull Real Estate as well as Metro Star Pty Ltd. There is no basis, in my view, for the claim against the agent.
In my view, the content of the letter of 1 December 2011 is an offer to give a rental guarantee upon some things occurring. I understand that the property did settle and that there was an appointment form executed however I have not been shown any rental guarantee. There is no guarantee in writing that has been provided to me. In all the circumstances, the application as against the real estate agent is dismissed.
It having been acknowledged that the respondent Metro Star Pty Ltd has been liquidated, there is no utility in making an order against it for breaches of the tenancy agreement.
It was also said during the hearing that a claim was made against Mr Romano. In my view, there is no basis for a claim against him on the material before me.
I should say for the record that during the hearing it was acknowledged that the amounts claimed by the applicants were not in dispute.
The order is the application is dismissed.
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