Hennessy v McHugh - [2015] QCAT 195

CITATION:

Hennessy v McHugh [2015] QCAT 195

PARTIES:	Amy Hennessy (Applicant)
v
Brad McHugh (Respondent)
APPLICATION NUMBER:	MCDO44-15

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

1 May 2015

HEARD AT:

Pine Rivers

DECISION OF:

Member Favell

DELIVERED ON:

25 May 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

Application dismissed.

CATCHWORDS:

Minor civil Dispute

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Amy Hennessy
RESPONDENT:	Brad McHugh

REASONS FOR DECISION

Brad McHugh through his agency Ferny Hills First National was the agent representing Amy Hennessy in respect of her rental property at 2/18 Glenariff Street, Ferny Grove, Queensland 4055.
The letting and property management appointment of the agent agreement shows the client details as Amy Jane Hennessy and Edward John Whiting. Mr Whiting is not a party to the application before the tribunal.
In the section that provides for the agent details simply the agency name First National Real Estate Ferny Hills appears. The agreement provided for a property management schedule with rent collection commission to be 5 per cent plus GST and the letting commission one week’s rent plus GST. A management fee was 3.85 per cent GST inclusive.[1] The document set out essential terms and conditions including the lessor’s obligations, the lessor’s acknowledgment, the agent’s authority and indemnity by the lessor.
[1] Exhibit 1 schedule C.
The applicant has brought an application in the tribunal claiming in total inclusive of the filing fee of $105.00, $2,298.82. The claim is made up as follows:
·Repair damage to main bedroom door ($150.00 estimate);
·Complete repairs to bathroom ceiling ($150.00 estimate);
·Compensate for the cost of cleaning (3 hours at $50.00 per hour = $150.00);
·Reimburse the costs of the gas bottle ($38.99);
·Reimburse the cost of the carpet cleaning ($80.00);
·Reimburse the cost of the smoke alarm inspection ($79.00);
·Refund the cost of the let fee ($330.00);
·Refund the cost of the management fee ($113.19);
·Refund the cost of the administration fee ($5.50);
·Compensate for loss rent (25 days at $44.29 per day = $1,107.14);
·Reimburse the cost of the filing fee of this application ($105.00).
The basis for the claim is said to be based on the appointment of the agent document.
The applicant contends that Ferny Hills First National was responsible for the lease finalisation of the previous tenancy agreement which ended on 31 January 2015 and for managing the reletting of the property between 31 January and 26 February 2015.
The current lease commenced on 26 February 2015 and it was that date the appointment was terminated. The applicant contends that Ferny Hills First National failed to deliver key services during that period which has resulted in additional expenses and lost income.
Ms Hennessy says that the property was left damaged by the previous tenants and as Ferny Hills First National had returned the bond Mr McHugh agreed to have the repairs fixed at his cost. That is the first two items of the claim.
At the hearing I was told that work was being carried out at the expense of Mr McHugh and accordingly there was no need for any order in that regard that being so I make no order in respect of the claims for repairs.
Ms Hennessy contends that the property was not left clean by the previous tenants and had to be cleaned after a request by the new tenant was made. The applicant says that she carried out the work for 3 hours in February and she wants to be compensated for her time carrying out the cleaning. She has not however provided a basis for the claim of $50.00 per hour.
I can find no obligation in the appointment of the agent document which requires the agent to ensure that the property is cleaned. Normally the obligation is placed on a tenant on exit. For example, clause 26 of the standard terms of the Residential Tenancy Agreement requires the tenant to keep the premises clean having regard to their condition at the start of the tenancy. I note that I am not informed what the condition was at the start of the tenancy.
The Applicant has drawn my attention to clause 4 of Addendum A to the Standard Residential Tenancy Agreement said to be in similar terms to the one administered by the agent at the time before the termination of the agency agreement. That clause requires the tenant to have all carpets shampooed and/or steam cleaned on the last day of the tenancy and repair all and any damage to the premises caused by the tenants. Clause 4(e) requires the tenants to leave the premises in a neat and tidy condition.
That term however is not a term which applies to the agent.
Ms Hennessy in the written Part C of the application seemed to rely on an agreement with Brad McHugh wherein he was to clean the stove, but did not do so. The cost of doing that work however has not been particularised.
There is no basis on the material before me for the Tribunal to order Ferny Hills First National to compensate Ms Hennessy for the cost of cleaning.
The claim that is made by Ms Hennessy is made in the minor civil dispute jurisdiction of QCAT. So far as this aspect of the claim was concerned, in my view it does not come under a claim for a tenancy matter or a claim arising out of the contract between a consumer and a trader. Nor does it come under any other of the definitions of a ‘relevant person’ in section 12 of the QCAT Act.
Ms Hennessy seeks to be reimbursed for the cost of a gas bottle in the sum of $38.99. The basis of that claim seems to be that Ferny Hills First National has been unable to provide proof that the previous tenants had the gas bottles refilled. She says that was a condition of their lease. I do not have that lease but Ms Hennessy has provided a tenancy agreement which she says is similar to the one she claims under. It had a statement that “the tenants agree to ensure that the gas bottles are refilled at the time on vacating the property producing the receipt to Ferny Hills First National and during tenancy at their own cost”.
Ms Hennessy has not produced any receipt for the cost of filling the gas bottles. The respondent says that the gas bottles were weighed at the end of the tenancy and the weight of them indicated that they were full. No receipt of filling them has been produced.
There is nothing in the agency agreement which requires the agent to provide a receipt and the agreement referred to by Ms Hennessy is the agreement with the former tenant.
I am not inclined to make any order for compensation in respect of this item because it is not shown that there is an obligation which has been breached by the agent, there is no evidence that the bottles were refilled at a cost to Ms Hennessy and there is evidence that they were full at the time the tenants vacated.
Ms Hennessy makes a claim for the cost of carpet cleaning in the sum of $80. She does not produce a receipt for the cost of carrying out any carpet cleaning. The respondent does not produce a receipt for the carpet cleaning but contends that it was carried out. It seems that Ms Hennessy’s claim is based on the failure of the respondent to provide a receipt which was, she says, an obligation of the tenant to provide.
I decline to make an order for compensation in respect of this item because there is no evidence that there has been an expenditure on carpet cleaning by the applicant. I do not believe it is appropriate to make an order for compensation when there is no proof of anything to compensate for.
The applicant seeks reimbursement for the cost of the smoke alarm inspection in the sum of $79.00. She has provided a receipt for carrying out that work. The respondent says that there is an obligation for smoke alarm inspections to be carried but that at the time it should have been carried out the agency agreement had been terminated. He also says that there was a current certificate which could have been utilised at no cost if there was another inspection carried out while they were agents. That did not occur however as the certificate was not transferable from one agent to another.
There is nothing in the agency agreement which places a liability upon the agent to pay for and obtain the certificate. I note from the Agreement that any costs associated with the obtaining a certificate or carrying out inspections are to be borne by the owner or if incurred by the agent, reimbursed by the owner.
Section 104RD of the Fire and Emergency Services Act 1990 (Qld) requires the lessor within 30 days before the start of the tenancy in a domestic dwelling test each smoke alarm in the dwelling in compliance with the section. I note the obligation is that of the lessor. In circumstances where the Agency Agreement has been terminated and a new tenant is to take up occupation of the tenancy, I do not find there is an obligation on the agent to ensure the lessors’ obligations under the Act are carried out. Section 104RJ allows a requirement imposed on an owner to comply with the Act in relation to a smoke alarm in a domestic building to be complied with by the owner’s agent. Section 104RJ prohibits an agent from being the lessor’s agent for the purpose of complying with the Act if the owner is a lessor.
Ms Hennessy seeks the refund of the cost of the let fee of $330, the cost of the management fee of $113.19 and the refund of the cost of the administration fee $5.50. Those items appear on a tax invoice statement number 37. Ms Hennessy alleges that Ferny Hills First National failed to adequately perform the services that should have been provided under their let fee. She says that they were not the managing agents for the period 26 February to 25 March, the period the statement covered. The current lease commenced on 26 February 2015 and the appointment of Frist National Ferny Hills was terminated on that date.
The respondent says that the current tenant was found by them and they are entitled to the let fee under the agency agreement. They say they are also entitled to the administration fee and the management fee according to the agreement.
The property management schedule to the agreement lists the letting commission as one week’s rent plus GST. One week’s rent was $300 and accordingly the letting commission was calculated to be $330. The management fee was 3.85% GST inclusive and administration fees were of $5.50 inclusive of GST. Clause 4.7.1 of the essential terms and conditions of the Agreement required the lessor to pay all commissions, fees and expenses specified in items C, D and E of the schedule to the agent with respect to the commission payable for the letting of the property upon the lessor’s entry into a tenancy agreement and for the property with a tenant procured by the agent and with respect to the commission fees and expenses payable for the rent collection and management of the property when the rent to be collected by the agent periodically falls due to be paid by the tenant.
The respondent says that it carried out the Saturday inspections and advertised the property on seven websites. It let the property and it says it is entitled to the charges as made.
I find that they were entitled to claim those charges under the agency agreement.
Ms Hennessy also claims compensation for lost rent over 25 days at $44.29 a day, a total claim of $1,107.14. In part she basis that claim from what she says was an inaccurate and misleading representation on the website of Ferny Hills First National when it claimed to have “83 active tenants” who are “ready to rent your property” throughout the vacancy period. The respondent says that that portion of the website refers to the possible tenants who viewed the property online. I have not seen the website nor was I provided with any other details in relation to it. The respondent says as a rule of thumb, it takes approximately four weeks to rent a property after it becomes vacant. They say that the time within which this property was re rented was not unusual.
I cannot find any breach of any part the agency agreement by the respondent which would found a claim for compensation. In my view there is no basis for making a compensation order.
For the reasons set out above, the application is dismissed.