Herston Self Contained Accommodation Pty Ltd v Thomson
[2011] QCAT 635
•12 December 2011
| CITATION: | Herston Self Contained Accommodation Pty Ltd v Thomson [2011] QCAT 635 |
| PARTIES: | Herston Self Contained Accommodation Pty Ltd |
| (Applicant) | |
| v | |
| Mrs Sandra Thomson | |
| (Respondent) |
| APPLICATION NUMBER: | MCDT1528-11 |
| MATTER TYPE: | Residential tenancy matters |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Williams, Adjudicator |
| DELIVERED ON: | 12 December 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The respondent pay the applicant the total sum of $5,740 being rental arrears, within 48 days. |
| CATCHWORDS: | Minor Civil Dispute – Residential Tenancy – General Dispute between lessor and tenant about a tenancy agreement – notice of rent increase – charging of incentive amounts or penalties for breaches of agreement prohibited – rental receipt must be given for cash payments – Where applicant claims breach of agreement by rental arrears – Where respondent claims rent reduction for works performed at accommodation complex Residential Tenancies and Rooming Accommodation Act 2008, ss 88, 91, 172, 173, 429 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Chapman |
| RESPONDENT: | Ms Thomson |
REASONS FOR DECISION
Introduction
The applicant filed a claim in the Registry on 11 July 2011 on the basis that the tenant owes rent in the amount of $12,341.
At hearing the respondent filed a ‘defence’ acknowledging the existence of rental arrears, however arguing the “debt is much less than has been stated in the paperwork and claim provided to the Tribunal.” According to Mrs Thomson’s calculations she believes “the debt owed is $2,656” taking into account the following matters:
· Rent is to be calculated on a daily rate of $60 without GST;
· Rent is to be reduced by 10 per cent in recognition of works performed by the respondent and/or her partner;
· Interest and penalty fees for the late payment of rent is not permitted under the Residential Tenancies and Rooming Accommodation Act 2008; and
· The rental records fail to account for $2,980 allegedly paid by the respondent tenant.
Relevant Facts
The parties entered into a periodic tenancy agreement on 15 May 2009 with the terms and conditions set out in a single paged document titled ‘Information Sheet’. The daily rate of rent is stated as $66, including GST, with basic contractual terms provided herein including the tenant agrees to:
· Clean the unit upon departure and return it in the same condition that it was received;
· Pay for any damage/loss;
· Adhere to complex rules;
· Be charged for linen at $33 for the stay; and
· A cleaning fee of $55 should the units not be clean when departing.
The respondent explains she and her partner, Jim Hillier chose to stay at the self-contained apartment complex because her son was being treated at the nearby Royal Brisbane Hospital. Mrs Thomson states they briefly moved out of the complex on 20 May 2009 and then returned in June, where they remained (living out of different units) until 20 January 2011.
The Tribunal notes the absence of subsequent written tenancy agreements[1] entered into by the parties from June 2009 onwards, when the Thomsons returned to reside at the apartment complex on a periodic basis.
[1]No additional tenancy agreements or ‘information sheets’ were tendered to the Tribunal during the course of the hearing.
Jurisdiction
The Tribunal has jurisdiction to hear and decide this matter pursuant to sections 11 and 12 of the Queensland Civil and Administrative Tribunal Act 2009 (the ‘QCAT Act’). This was a claim by the applicant against the respondent for relief under the Residential Tenancies and Rooming Accommodation Act 2008 (‘the Act’).
The Tribunal is satisfied the contract entered into by the parties is a residential tenancy agreement as defined by section 12 of the Residential Tenancies and Rooming Accommodation Act2008 and does not fall into the category of agreements set out in Division 2 which the Act does not apply.
Findings of the Tribunal
The standard of proof required to support a claim in the minor civil dispute jurisdiction is not as high as the standard – ‘beyond a reasonable doubt’ required in criminal matters. Instead the ‘civil standard’ requires the applicant (or respondent, in regards to her counter-application) to provide on the ‘balance of probabilities’ that the other party contravened the Act.[2] The High Court case of Briginshaw v Briginshaw[3] is the leading case concerning the ‘civil standard of proof.’ In this instance the Tribunal must, on hearing the evidence and in consideration of the seriousness and gravity of the case, be ‘reasonably satisfied’ or feel ‘comfortably satisfied’ it can reach ‘a correct and just conclusion’ for each complaint as alleged.
[2] Residential Tenancies and Rooming Accommodation Act 2008.
[3] (1938) 60 CLR 336.
A. Is the respondent entitled to a reduction of rent by ten per cent for works performed?
The respondent alleges an agreement was made with the property manager Sue Chapman to “assist with caretaking duties at the premises.”
“This work included garden maintenance, cleaning of rooms, doing laundry, giving keys to new tenants and collecting money on [the] manager’s behalf. We also collected keys from tenants at the end of their tenancy and collected paperwork. We also had master keys so that we could let tradespeople in and advise them of the work needed. For this we made an arrangement that we would receive a ten percent discount on our rental.”
Through the oral evidence of Ms Chapman, the applicant acknowledges the respondent and her partner did “help out around the place” from time-to-time, but it is an overstatement to describe their role as caretakers. Ms Chapman states Mr Hillier accepted bottles of alcohol to do odd jobs as it was his way of keeping busy or active. Various amounts of $260 and $150 were also paid to the respondent to cover expenses incurred.
The difficulty for the Tribunal in determining the issue is that the terms of the verbal agreement were not reduced to writing. Further the tenancy agreement is silent on this matter as this arrangement was negotiated after the contract was formed.
Ms Thomson sought to rely on telephone records that she says demonstrates the frequency in which contact was made with Ms Chapman (in order to perform caretaking tasks in her absence from the apartment complex). However this evidence carries minimal weight – as it is not the original telephone records, rather a reproduction of what purports to be from the original record. Even if it were to be accepted as an accurate reproduction of the primary source, all the evidence shows is the frequency of calls made from one telephone number to another, not the purpose.
Evidence of Ms Chapman was that the respondent and her partner were friends and their relationship was such that her child looked fondly upon Mrs Thomson and Mr Hillier. This description of their relationship was not disputed by the respondent; therefore it is uncertain what telephone calls made by the respondent to Ms Chapman were of a personal nature and what calls were work related.
Further the evidence relied upon by the respondent fails to satisfy the Tribunal as what the basic terms of the agreement were, namely:
· The contract price or consideration – whether payment for work was for ten per cent rent reduction or alcohol, or both?
· The terms of the contract – what were the hours of work and number of days per week required in order to qualify for a 10 percent rent reduction or bottle of alcohol?
· Whether the parties had an intention to create a legally binding agreement or whether it was, as described by Ms Chapman, an offer by the respondent and/or her husband to “help out around the place”.
The Tribunal cannot be reasonably satisfied on the evidence available at hearing that the standard of proof required to establish this aspect of the respondent’s counter-claim is met. Therefore the respondent is not entitled to a ten percent rent reduction for works performed.
B. What amount of rent is the respondent liable to pay?
Section 91 of the Residential Tenancies and Rooming Accommodation Act 2008 provides:
(2)If the lessor proposes to increase the rent, the lessor must give written notice of the proposal to the tenant in the way required by this section.
(3) The notice must state—
(a) The amount of the increased rent; and
(b) The day from when the increased rent is payable.(4)The day stated must not be earlier than 2 months after the notice is given.
(5)Subject to an order of a tribunal under section 92, the increased rent is payable from the day stated in the notice, and the agreement is taken to be amended accordingly.
…
(7)A rent increase is payable by the tenant only if the rent is increased under this section.
The applicant argues notice of a rental increase or a “variation of rental terms” (as described by Herston Self Contained Accommodation Pty Ltd) was provided to the respondent’s partner in an undated spread sheet on or around 8 October 2010.
The spreadsheet sets out past monthly balances owing with a sub total of the amount due. In addition the document also states:
“Payments are to be paid weekly - $420 as at 7 October 2010.”
“If payments are not paid weekly and over fortnight behind in payments – Rate increases to $77.00 per night.”
The Tribunal rejects the applicant’s submission; clearly notice of the proposed rent increase is not in a manner required by section 91. For example the ‘notice’ fails to state the day from when the proposed increase of rent to $77.00 is payable, as required by section 91(2)(b); instead the change of rate increases on a non-descript day in the event of “payments not paid weekly and over fortnight behind in payments.”
Furthermore section 57 of the Act requires premises to be offered for rent at a fixed amount. Thus in consideration of these matters, the Tribunal finds the proposed rental increase to $77 per day invalid.
The applicant’s claim before the Tribunal is for rental arrears in the amount of $12,341. In an email dated 14 February 2011 from Chris Bloor, the Director of Herston Self Contained Accommodation Pty Ltd to the respondent, he states: “If $8,720 is not paid by 7th March 2011… a formal and full debit recovery process [will commence].”
Curiously ‘full debt’ is described by the applicant as $12,341[4], which is calculated by charging the daily rent of $77 (with GST) as from 18 November 2010.[5] The applicant argues the respondent should be liable for this greater amount as a result of failing to pay the outstanding rental arrears by 7 March 2011.
[4] Email dated 14 February 2011 from Mr Bloor to Mrs Thomson.
[5]Calculated using the excel spread sheet sent to the respondent on 27 January 2011 and filed by the applicant in support of its claim.
Not only has the Tribunal found at paragraphs 16 to 20 herein, that the increase of rent is invalid, the Act also prohibits the charging of incentive amounts or penalties for breaches of an agreement.
172 Incentive amounts prohibited
The lessor or lessor’s agent must not ask for or receive from the tenant or anyone else an amount for entering into, extending or continuing the agreement, other than an amount for rent, a rental bond, or other amount required or permitted to be paid under this Act.
Maximum penalty—40 penalty units.
173 Certain terms about penalties and other payments void
(1) A term of an agreement is void to the extent it provides that, if the tenant breaches the agreement or this or another Act, the tenant is liable to pay—
(a) all or a part of the rent remaining payable under the agreement; or
(b) increased rent; or
(c) an amount as a penalty; or
(d) an amount as liquidated damages.
The Tribunal finds the respondent tenant liable to pay rent in the amount of $420 per week or $60 per day for the duration of her occupancy – making the prima facie total of arrears $8,720.
C. The respondent’s claim that the rental records fail to account for $2,980 allegedly paid
After receiving a copy of the aforementioned spreadsheet from Mr Bloor on 27 January 2011 (see paragraph 22 and footnote 5) Mrs Thomson vigorously argues:
“Jim [Mr Hellier] is adamant that he paid $1,100 or $1,300 in cash to Sue [Ms Chapman] just after we moved into Unit 2 – after 1/06/09 – ref to Inv. 09/181 $1321.00 – the one I never received. Jim remembers the conversation as Sue told him to pay when leaving. He says his reply was something like ‘we don’t know how long we’ll be here, so take it.”
Mrs Thomson further maintains in a letter[6] to the applicant’s agent:
“I have a problem with what you refer to as an ‘in-house’ audit, as no acknowledgement has been recorded re the $1,300 cash given to Sue [Ms Chapman]. I know that at least 2 other payments of $840 cash were also given, but I guess this can be written off as a bonus to Sue.”
[6] Dated 21 February 2011.
The respondent raises serious questions about the accuracy of Herston Self Contained Accommodation Pty Ltd accounts and its compliance with the Residential Tenancy and Rooming Accommodation Act 2008. There is a general lessor’s duty to keep records[7] and with respect to receiving cash payments, a receipt must be provided. Specifically section 88 requires:
(3) A receipt must be signed by the person receiving the payment.
(4) A receipt must be given to the person making the payment—
(a) if the payment is made by the person personally and in cash—when the payment is made;
[7] Section 89(1).
…
(8) A receipt or rent payment record must state—
(a) the tenant’s name; and
(b) the address of the premises; and
(c) the date the payment is received; and
(d) the period for which the payment is made; and
(e) the amount of the payment; and(f) that the payment is a payment of rent.
At hearing no copies of receipts were tendered to the Tribunal; therefore the Tribunal is not in a position to make an adverse finding about the receipt’s contents and form (or lack thereof). However, the Tribunal does note on the applicant’s spread sheet – which purports to record all monies received – the amount of $9,000 ‘cash’ is recorded with no date of when it was received.
If, in fact a receipt was drawn and issued as required pursuant to section 88, the Tribunal has difficulty understanding why the applicant’s rental ledger (or spread sheet) can overlook such a fundamental detail.
The respondent also argues the amounts of $500 and $300, dated 20/5/09 and 9/06/09 respectively (on the said spread sheet) are incorrectly recorded as “deposits” at “Sunnybank Qld” – whereas, Mrs Thomson maintains were paid “cash” personally to Ms Sue Chapman and only one receipt was issued.
The applicant did produce a partial copy of its Westpac Bank Statement, however, the earliest period it records transactions from is 29 December 2009 to 15 April 2010 – noticeably outside the period of May and June 2009. Further in the absence of receipts for this period, the applicant is unable to successfully counter the respondent’s submission.
The Tribunal cannot be reasonably satisfied that the applicant’s rental ledger (or spread sheet) has accurately recorded all rental payments – either cash or bank deposit – paid by the respondent and/or her partner, Mr Hellier during the course of the tenancy; thus the Tribunal is not satisfied the applicant can substantiate the full amount claimed for arrears. Therefore the Tribunal finds on the balance of probabilities that the rental records failed to account for $2,980 paid by the respondent and reduces the arrears liability by this amount.
Conclusion
In consideration of the matters mentioned above, the Queensland Civil and Administrative Tribunal is satisfied Herston Self Contained Accommodation Pty Ltd has established only part of its claim. Some of the matters raised by Mrs Thomson in her counter application are valid and have been taken into account by the Tribunal in its Order.
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