Jackson v ManageMe Property Management Solutions Pty Ltd - [2024] QCAT 18

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Jackson v ManageMe Property Management Solutions Pty Ltd [2024] QCAT 18

PARTIES:

BARBARA JACKSON

(applicant)

v

MANAGEME PROPERTY MANAGEMENT SOLUTIONS PTY LTD

(respondent)

APPLICATION NO:

T341/23

CITATION:

ManageMe Property Management Solutions Pty Ltd v Jackson [2024] QCAT

PARTIES:

MANAGEME PROPERTY MANAGEMENT SOLUTIONS PTY LTD

(applicant)

v

BARBARA JACKSON

(respondent)

APPLICATION NO:

T489/23

MATTER TYPE:

Residential tenancy matters

DELIVERED ON:

11 January 2024

HEARING DATE:

3 October 2023

HEARD AT:

Beenleigh

DECISION OF:

Member Scott-Mackenzie

ORDER:

Proceeding number T341/23

1. The Residential Tenancies Authority pay the rental bond in the sum of $1,840.00 to the tenant (Ms. Jackson).

2. The respondent pay to the applicant $3,428.00 within 14 days of this order.

Proceeding number T489/23

The respondent pay to the applicant $1,580.29 within 14 days of this order.

CATCHWORDS:

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 70, s 77, s 137, s 185, s 312A, s 357A, s 419, 420, s 429

APPEARANCES:

Proceeding number T341/23

Applicant:

Self-represented

Respondent:

Proceeding number T489/23

Applicant:

Respondent:

Ms Gray

Ms Dank

Ms Gray
Ms Dank

Self-represented

REASONS FOR DECISION

Introduction

These are the reasons for decision of the Tribunal in Beenleigh proceeding number 341/23, Jackson v ManageMe Property Management Solutions Pty Ltd, and Beenleigh proceeding number 489/23, ManageMe Property Management Solutions Pty Ltd v Jackson. The proceedings remained as separate proceedings but were heard together.
Applications
Proceeding number 341/23
The applicant, Ms Jackson, on 12 May 2023, made application to the Tribunal for the following orders:
(a)pursuant to section 312A of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act), a termination order because the respondent, ManageMe Property Management Solutions Pty Ltd (ManageMe), gave Ms Jackson false or misleading information about the condition of the premises at unit 2, 30 Wyndham Circuit, Holmview (premises) or inclusions; and
(b)pursuant to section 429, an order for the payment of compensation; and
(c)pursuant to section 169, for loss of amenity.
Ms Jackson claims $2,048.00, calculated as follows:
Moving costs $1,008.00
Loss of wages $1,040.00
$2,047.00

Proceeding number 580/23

On 21 June 2023 ManageMe made application to the Tribunal for an order about payment of the rental bond under section 137 of the RTRA Act. It claims $1,580.29, calculated as follows:
Reletting fee  $ 506.00
Advertising fee  $ 220.00
Arrears of rent  $ 854.29
$1,580.29
Tenancy agreement
The tenancy agreement is dated 17 March 2023 (tenancy agreement). The tenancy started on 31 March 2023 and was to end on 28 March 2024. The rent payable under the agreement was $460.00 per week. The rental bond held by the Residential Tenancies Authority is $1,840.00.
Clause 6(1) of the tenancy agreement reflects section 70(1) of the RTRA Act. It provides:
(1)This clause applies if:
(a) this agreement is a fixed term agreement; and
(b) none of the following notices are given, or agreements or applications made before the day the term ends (the end day):
(i)a notice to leave;
(ii)a notice of intention to leave;
(iii)an abandonment termination notice;
(iv)a notice, agreement or application relating to the death of a sole tenant under section 277(7);
(v)a written agreement between the lessor and tenant to end the agreement.
(2)This agreement, other than a term about this agreement's term, continues to apply after the end day on the basis that the tenant is holding over under a periodic agreement.
Clause 7 reflects section 357A. It provides:
(1)This clause applies if:
(a) this agreement is a fixed term agreement; and
(b) the tenant ends this agreement before the term ends in a way not permitted under the Act.
(2)The tenant must pay the reasonable costs incurred by the lessor in reletting the premises.
Note - For when the tenant may end this agreement early under the Act, see clause 36 and the information statement. Under section 362, the lessor has a general duty to mitigate (avoid or reduce) the costs.
(3)This clause does not apply if, after experiencing domestic violence, the tenant ends this agreement or the tenant’s interest in this agreement under chapter.5, part 1, division 3, subdivision 2A of the Act.
Also of relevance in the circumstances here is clause 25(1). It reflects section 185(2) of the RTRA Act and provides:
At the start of the tenancy, the lessor must ensure:
(a)the premises are clean; and
(b)the premises are fit for the tenant to live in; and
(c)the premises are in good repair; and
(e)the lessor is not in breach of a law dealing with issues about the health or safety of persons using or entering the premises.
(f)the premises and inclusions otherwise comply with any prescribed minimum housing standards applying to the premises or inclusions.
Clause 36 reflects section 77. It provides:
(1)This agreement ends only if:
(a)     the lessor and tenant agree, in a separate written document to end this agreement; or
(b)     the lessor 9ives a notice to leave premises to the tenant under section 326 and the tenant hands over vacant possession of the premises to the lessor on or before the handover day; or
(c)      the tenant gives a notice of intention to leave premises to the lessor under section 327 and hands over vacant possession of the premises to the lessor on or before the handover day; or
(d)     the tenant vacates, or is removed from, the premises after receiving a notice from a mortgagee or appointed person under section 317; or
(e)      the tenant abandons the premises and the period for which the tenant paid rent has ended; or
(f)      the tribunal makes an order terminating this agreement.
(2)Also, this agreement ends for a sole tenant if:
(a)     the tenant gives the lessor a notice ending tenancy interest and hands over vacant possession of the premises; or
Note- See chapter 5, part l, division 3, subdivision 2A of the Act for the obligations of the lessor and tenant relating to a notice ending tenancy interest.
(b)     the tenant dies.
Note -See section 324A for when this agreement ends if a sole tenant dies.
Occupation of the premises
Ms Jackson entered into occupation of the premises on 31 March 2023. She completed an entry condition report the same day. In it, she comments extensively on the condition of the premises and inclusions. The comments include:
Entry
Outside entry dirty, hasn't been cleaned. Street sign lying in garden at front door.
Large stain on pebblecrete near bathroom window.
Lounge room
Tracks, glass & sec screens are dirty.
Windows and screens are dirty.
Blinds do not open.
1 light fixture is bent out of place.
Carpet has many stains & is dirty.
Bedroom 1
Security screens & glass are both dirty, tracks are dirty.
There is no ceiling fan, only one light fitting.
The carpet is stained in places & dirty.
Ensuite
Walls are stained & dirty, blue mark RHS of mirror.
The skylight is dirty.
Steel shower frame is rusted at bottom.
Bathroom
The skylight is dirty.
There is no stainless steel soap holder in the shower.
Bedroom 2
The fly screen is ripped & frame is buckled & damaged, doesn't properly fit window.
Kitchen/meals
The window & screens are dirty.
Chip/hole in tile RHS of oven.
Gas cook top is dirty, one gas element to seems damaged, rusted.
Range hood is filthy.
Bedroom 3
There is a hole in the door.
There are no security screens on windows.
There are ripped and buckled insect screens.
The carpet is stained in places.
Laundry
The tiles are scratched & marked.
Can’t use the cupboard as it is full of tiles.
General
Gas meter box is damaged, door buckled and can’t be closed.
Waste bins are both filthy.
Stains on cream cladding.
Large stain on pebblecrete outside windows to bed 3.
White door is filthy, walls are marked & garage elec door is dirty. Hole in door into the house. Skirting board is rotting near washer.
Ms Jackson filed with her application, as annexure 2, photographs showing the condition of the premises at the time she entered into occupation. She also filed a statutory declaration made by Ms Jocelyn Bode on 3 May 2023. Ms Bode declares that she and her husband assisted Ms Jackson moving into the premises on 31 March 2023. She continues:
… When entering the duplex we noticed cigarette butts all over the ground outside the front door. The fly screens were ripped off – 1 or 2 damaged & thrown on the ground along with a stolen street sign.
Inside the house we noticed the dirty carpets had not been cleaned along with dirty sink and kitchen benches. Neither bathroom had been cleaned. Neither had the windows & glass sliding doors.
The duplex had clearly not been bond cleaned including all carpets in the living room and bedrooms not steam cleaned.
…
Ms Jackson stated in evidence she contacted ManageMe by telephone on 31 March 2023 to complain about the condition of the premises and inclusions. She was informed, “… everything is in order…”
I accept Ms Jackson’s evidence the premises and inclusions were not clean and were not in good repair at the start of the tenancy, contrary to section 185 of the RTRA Act and clause 25 of the tenancy agreement. ManageMe’s response to Ms Jackson’s complaint about the condition of the premises was less than satisfactory.
On 5 April 2023 ManageMe gave a work order to Jim’s Cleaning. The description of the work required in the order is in the following terms:
*   clean blinds throughout
*   oven needs further cleaning.
*   Blue tac - please clean of bedroom 3 - back bedroom.
*   Laundry floor tiles
*   Please also attend to clean up cigarette butts on grounds as alot are present on lawns
*   Please steam clean carpet in the living room
The work, it appears, was carried out on about 1 May 2023.
A second work order was given by ManageMe to Everything Property Maintenance on 31 March 2023. The description of the work required in the order is in that the following terms:
*   fix door handle main bedroom
*   patch on wall in en suite behind door repair and repaint
*   screen windows need to be replaced as taken off
*   patch on back side of wall main bedroom to be repaired and repainted
The work, it appears, was carried out on about 11 April 2023.

Notices
Notice of the intention to leave

On 26 April 2023 Ms Jackson gave to ManageMe a notice of intention to leave the premises by midnight on 10 May 2023. The grounds of the notice are:
The premises were not cleaned prior to my tenancy commencing and are very dirty. The grounds are also very dirty with rubbish in the garden. There is prior tenant damage, many inclusions detailed in the entry report were in fact are missing and other items are not working. To date, despite several requests, the agents have still not cleaned the property or grounds.
Notice to remedy breach
Subsequently, on 2 May 2023, Ms Jackson gave to ManageMe a notice to remedy breach. The details of the breach are:
The failure to clean the premises & grounds, remove rubbish and effect repairs prior to my tenancy commencing.
Failure to do a valid the exit report after the previous tenants left and before I moved in.
Failure to what rectify the following: dirty windows, glass doors, security screens, sills and tracks; dirty/damaged doors, walls and ceiling throughout; stained and dirty carpet throughout; missing soap pan in main shower; guttering full of detritus and overflowing when raining; outside taps not working, rubbish left in the garden and at the front door.
The date by which the breach must be remedied specified in the notice is 9 May 2023.
Termination agreement
After giving the notice of intention to leave, Ms Jackson entered into an agreement to terminate the tenancy agreement (termination agreement). The agreement is dated 28 April 2023. Clause 1 provides:
The tenant/s agreed to pay the rent up to the day the replacement tenant/s tenancy agreement commences or their current tenancy agreement expires, whichever comes first.
Also of relevance in the circumstances here is clause 8. It provides:
The tenant/s agree to reimburse the property owner for all costs related to securing the replacement tenant including letting fee plus any relevant taxes, advertising and any associated costs with the tenancy agreement to preparation.
The amount specified for marketing and advertising later in the agreement is $220.00.
Discussion
Proceeding number 341/23
Ms Jackson entered into occupation of the premises on 31 March 2023. The evidence, which I accept, shows the premises and inclusions were not clean and were not in good repair.
A tenant may give a notice of intention to leave premises because the premises or inclusions are not in good repair.[1] The notice must be given within the first seven days on which the tenant occupies the premises under the residential tenancy agreement. The notice of intention to leave given by Ms Jackson to ManageMe was given on 26 April 2023, well outside the first seven days after the date of occupancy.
[1]RTRA Act, s 307A(1)(b).
Section 312A(1) of the RTRA Act, under which Ms Jackson has applied to the Tribunal for a termination order, provides:
Within the first 3 months on which the tenant occupies the premises under the residential tenancy agreement, the tenant may apply to the tribunal for a termination order because the lessor or lessor’s agent gave the tenant false or misleading information about:
(a)     the condition of the premises or inclusions; or
(b)     the services provided for the premises; or
(c)      a matter relating to the premises that is likely to affect the tenant’s quiet enjoyment of the premises; or
(d)     the agreement or any other document the lessor must give the tenant under this Act; or
Example of document that must be given to tenant:
body corporate by-laws that apply to the premises
(e)      the rights and obligations of the tenant or lessor under this Act.
Ms Jackson’s application to the Tribunal for a termination order was made within three months of the date on which she occupied the premises. However, before making the application, she gave to ManageMe a notice of intention to leave the premises, entered into the termination agreement, and vacated the premises. In other words, by the time Ms Jackson applied to the Tribunal for the termination order under section 312A of the RTRA Act, the tenancy had already been terminated by mutual agreement between the parties.
I turn now to the claim under section 429 of the RTRA Act. Relevantly, subsection (1) of section 429 provides:
If there is a dispute between the lessor and tenant, or provider and resident, about an agreement, either party may apply to a tribunal for an order, and the tribunal may make any order it considers appropriate, to resolve the dispute.
Here, there is a dispute between Ms Jackson and ManageMe. The dispute is about a residential tenancy agreement.
Section 429 has been described as a “... general catch-all provision. It is not intended to override those special provisions that the [RTRA Act] has addressed with detail and particularity.”[2] The general words of section 429 are to be read down so as not to detract from the specific provisions of sections 419 and 420.[3]
[2]Khromeenkova v PRD Robina Nationwide & Anor [2021] QCATA 35, per Member Howe at [43].
[3]Ibid, per Member Howe at [44].
Relevantly, section 419 provides that:
(1)     This section applies if any of the following claim there has been a breach of a term of a residential tenancy agreement or a rooming accommodation agreement:
(a)a lessor or tenant under the residential tenancy agreement;
(b)...
(2)     The lessor or tenant ... may apply to a tribunal for an order about the breach.
(3)     The application must be made within 6 months after the lessor or tenant, or provider or resident, becomes aware of the breach.
(4)     For a residential tenancy, the application may be made—
(a)during the term, or after the end, of the agreement; and
(b)whether or not an application for termination, or a termination order, has been made about the agreement; and
(c)whether or not a rental bond for the agreement is held by the authority when the application is made.
(5)     ...
The orders the Tribunal may make in an application about a breach of a residential tenancy agreement are spelt out in section 420. They included:
(a)an order for the payment of money[4]; and
(b)an order for compensation[5].
[4]RTRA Act, s 420(1)(b).
[5]Ibid, s 420(1)(e).
In assessing compensation, I have had regard to the following, amongst other matters:
(a)the condition of the premises and inclusions at the commencement of the tenancy;
(b)the nature and extent of the breaches of section 185(2) of the RTRA Act and clause 25 of the tenancy agreement;
(c)ManageMe’s initial response to Ms Jackson’s complaints about the condition of the premises and inclusions;
(d)ManageMe’s failure to remedy the breaches of section 185(2) of the RTRA Act and clause 25 of the tenancy agreement within a reasonable time;
(e)the distress and inconvenience suffered by Ms Jackson consequent on finding the premises and inclusions in the condition they were in at the start of the tenancy, complaining to ManageMe about the condition of the premises and inclusions, the inadequate response to the complaints, having to find new premises and relocating to the new premises.
The applicant claims the cost of moving from the premises into new premises, $1,008.00. She filed with her application an invoice for the cost. I am satisfied the cost was appropriately incurred and is reasonable. It will be allowed in the amount allowed for compensation.
Ms Jackson also claims lost wages in the sum of $1,040.00. She filed with her application a letter from her employer, crazybird.com.au, dated 3 May 2023. The letter relevantly reads:
This letter is provided in support of Barbara Jackson to confirm that over the last month she has lost 16 hours work due to the time she has had to take looking and applying for rental properties as a suitable alternative to the property she has been renting in Holmview.
Barbara has lost $1,040 in wages as a result.
The difficulties obtaining rental accommodation are well-known. I accept Ms Jackson devoted sixteen hours to finding alternative accommodation and, as a consequence, lost $1,040.00 in wages. The amount will be allowed in the amount allowed for compensation.
There is then a claim for compensation for distress and inconvenience. I have calculated compensation by reference to the rent paid, with an uplift having regard to the matters referred to in paragraphs [33] of these reasons for decision.
The amount of compensation allowed is $1,380.00, calculated as follows:
rent paid ($2,760.00) × 50% = $1,380.00
The compensation allowed to Ms Jackson totals $3,428.00.
Proceeding number 489/23
Ms Jackson gave to ManageMe a notice of intention to leave. She did so on the ground the premises and inclusions were not clean at the start of the tenancy and had not been cleaned “...despite several requests …” Prior to handing over vacant possession of the premises on or after the handover day for the notice, 10 May 2023, the parties entered into the termination agreement, agreeing to terminate the tenancy. Under clause 8 of the agreement, Ms Jackson agreed to pay the letting fee plus any relevant taxes, here one week’s rent plus GST, $506.00, and advertising, $220.00.
Rent is payable until the start of a new tenancy under clause 1 of the termination agreement. Rent was paid by Ms Jackson to ManageMe up to and including 11 May 2023. The claim is for 13 days, $854.29. I am satisfied ManageMe took all reasonable steps to mitigate the loss.

The amounts claimed under the termination agreement will be allowed.
Summary
The compensation payable by ManageMe to Ms Jackson is $3,428.00. The amount payable by Ms Jackson to ManageMe under the termination agreement is $1,580.29.
Orders
Proceeding number 341/23
The order of the Tribunal in the proceeding is as follows:
(a) the Residential Tenancies Authority pay the rental bond in the sum of $1,840.00 to the tenant (Ms Jackson); and
(b) the respondent pay to the applicant $3,428.00 within 14 days of this order.
Proceeding number 489/23
The respondent pay to the applicant $1,580.29 within 14 days of this order.
The overall result is that the rental bond is repayable to Ms Jackson and ManageMe must pay to Ms Jackson $1,847.71.