Holeong v White Knight Realty
[2013] QCAT 390
•12 July 2013
| CITATION: | Holeong v White Knight Realty [2013] QCAT 390 |
| PARTIES: | Michaeline Holeong and Timothy Holeong (Applicants) |
| v | |
| White Knight Realty (Respondent) |
| APPLICATION NUMBER: | MCD534-13 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 30 May 2013 |
| HEARD AT: | Beenleigh |
| DECISION OF: | Paul Favell, Member |
| DELIVERED ON: | 12 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondent pay to the applicants $575.00 forthwith. |
| CATCHWORDS: | RESIDENTIAL TENANCY MATTERS - Claim for money paid as a bond - Whether money paid was a bond - whether paid under Residential Tenancies and Rooming Accommodation Act 2008 Residential Tenancies and Rooming Accommodation Act 2008 ss 58,59,61,111,156 and 157. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Michael Holeong and Timothy Holeong |
| RESPONDENT: | No appearance |
REASONS FOR DECISION
Michaeline Holeong and Timothy Holeong applied to the Tribunal for an order that White Knight Realty return a holding deposit of $520.00 in respect of the property at 10/7 Marlow Street Woodridge.
The applicants paid White Knights Realty that sum on 17 April 2013 and were provided with a receipt number 25613. The payment was in cash and it was described in the trust account receipt, exhibit 2, as “full deposit” for the property was described as “Four ten/7 Marl-Marlow Street, 7, 10”.
Exhibit 1 is a copy of part of an application which accompanied a copy of a current drivers licence, copy of a passport, copy of a bank statement and a copy of a tenant ledger. The application recorded a declaration and authority.
The declaration, in part, was:
I hereby offer to rent the property from the owner under lease to be prepared by the agent. Should this application be accepted by the landlord, I agree to enter into a residential tenancy agreement. I acknowledge that I will be required to pay the amounts as specified below. Initial two week rent deposit is required to be paid within 24 hours once the application is approved. The bond is to be paid on the signing of the lease. Payments are to be made using EFTPOS. After the application is approved and the deposit paid, I agree that if I change my mind not to proceed with the lease the deposit will be forfeited to the landlord in full.
I was told by the applicants that they withdrew their application by advising the respondent before there was any approval of the application. They told me that they were required to pay the deposit on the 17th of April 2013.
They told me that the only documents they were provided with were copies of Exhibit 1 and Exhibit 2.
Section 58 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) requires the lessor or lessor’s agent to give a prospective tenant for a residential tenancy the document prepared for section 61 before accepting a document from the prospective tenant that commits the tenant:
a) to enter into the tenancy; or
b) to pay an amount in relation to the tenancy.
The lessor’s agent is also prohibited from accepting an amount in relation to the tenancy unless the document prepared for section 61 is given to the prospective tenant. For the purposes of the section, a person is not taken to accept an amount in relation to a tenancy if the only amount a person accepts is a key deposit.
Section 59 provides that the lessor or lessor’s agent must not take an amount from a prospective tenant for a residential tenancy other than the following:
a) A key deposit;
b) A holding deposit;
c) A rental bond;
d) Rent.
In my view, the deposit paid here, consistent with the description, “full deposit” is either a holding deposit or a rental bond.
Section 156 allows a person to require a prospective tenant to pay an amount as a deposit for a key (a key deposit) to enable the prospective tenant to enter and inspect the premises to which the proposed tenancy relates.
Section 157 requires a receipt to be given when a key deposit is received and that receipt must, amongst other things, state that the amount is a key deposit. The receipt does not do that.
A holding deposit is defined as, “for premises, means that amount paid is consideration for an option to enter into an agreement for the premises.” In my view, on the basis of what I’ve been told this is not a holding deposit.
Section 111 under Division Two of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), “payments to authority” defines a rental bond as, “a rental bond for an agreement, is an amount – (a) paid by or for a tenant under the agreement; and (d) intended to be available for financial protection of the lessor against the tenant breaching the agreement.”
In deciding whether an amount is a rental bond, it does not matter when the amount is paid or if the amount is paid directly to the authority or to or by whom the amount is paid or how the amount is described in the agreement or arrangement about the payment of the amount. In my view, this payment was likely to be a payment in anticipation of an agreement being reached. To date, there is no evidence that such an agreement was reached apart from that which was contained in Exhibit 1 as I have set out.
Section 61 provides when written agreements are required. It provides that the lessor or lessor’s agent must ensure the agreement is in writing to the extent, and in the way, required by section 61. It must include the standard terms for an agreement and include any special terms of the agreement. The agreement must be written in a clear and precise way. There was no evidence of any such agreement and in my view, accordingly, the lessor’s agent should not have accepted an amount in relation to the tenancy unless the prospective tenant was given a document prepared for section 61. There is no evidence that that has occurred. In my view, a rental bond is an amount in relation to the tenancy.
Section 60 provides for orders that the Tribunal can make if there has been non-compliance with section 58 or 59. Part of the orders that the Tribunal can make is one that the lessor or lessor’s agent pay an amount to the tenant or prospective tenant. It is also able to make any other order that the Tribunal considers appropriate.
In my view, there has been a breach of section 58 and it is appropriate to order that the respondent pay the applicant the sum of $520.00 together with the filing fee of $55.00.
Even on the basis of the application signed on 15 April 2013, the respondent was not entitled to forfeit the deposit until after an application was approved. There has been no evidence that the application was approved. The order will be the respondent pay to the applicants $575.00 forthwith.
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