Julies Realty v Dzidic - [2013] QCAT 737

CITATION:

Julies Realty v Dzidic [2013] QCAT 737

PARTIES:	Julies Realty (The Applicant)
v
Maid Dzidic Natasha Pase (Respondents)

APPLICATION NUMBER:

MCDO1587-13

MATTER TYPE:	Other minor civil dispute matters
HEARING DATE:	23 September 2013

HEARD AT:

Brisbane

DECISION OF:

Member Favell

DELIVERED ON:

26 November 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The respondents pay the applicant $10,305.34 forthwith.

CATCHWORDS:

General Residential Tenancy agreement – where intention to vacate – where notice to leave given where damage done to property by others – responsibility of tenants

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Phuc Huyanh

RESPONDENT:

Maid Dzidic
Natasha Pase

REASONS FOR DECISION

Maid Dzidic and Natasha Pase were tenants at 23 Gunalda Street, Underwood, Queensland, under a general tenancy agreement which commenced on 30 November 2012 for a twelve month fixed term. The rent was $410 per week rent and the rental bond was $1640. That bond is no longer held by the Residential Tenancies Authority.
In January of 2013 both of the respondents became unemployed and they fell into arrears with their rent. On or about 10 February 2013 they attended the office of Julie’s Realty and advised that they were going to need to break the lease. Maid Dzidic in a statement said that he returned to Julie’s Reality on 12 February 2013 with a person he knew as Alen who was prepared to take over the rental property and he was given an application to complete. He completed it on the spot and gave it to the applicant and was told it was fine. Mr Dzidic says that at that time he was told that they would be allowed to break the lease and all they would have to do is complete Form 13. Later they received a Form 12 notice to leave with a vacate date of 24 March 2013. He says that they complied with that notice.
He says that they left the property in good condition. The hot water heater was undamaged, cook top and carpets were undamaged, there were no holes in the walls, no smashed doors and no illegal writing and the premises were not untidy, unclean or full of rubbish.
The general tenancy agreement has the usual terms and conditions.
The applicant, by application, seeks compensation for damages said to be done to the property by the tenants in the sum of $11,266.34. In support of that claim, they gave their reasons as:
“We were advised by the tenants that they had to break their lease as they intended to move to Sydney. We gave the tenants a form 13 notice of intention to leave. We received their signed form 13 13/03/13, they did not give us a vacate date. Our office issued the tenants a form 12 notice to leave due to rent arrears. Their vacate date was 24/03/13. Our principle Julie Hyunh went to the property on Monday 23/03/13. She found that the tenants stated on the lease were not living there but other people were. Julie asked who they were and they said that they were cousins of Maid Dzidic. She also advised them that the rent was in arrears. They informed them that they paid it to Mr Dzidic and Ms Pase. When the request to make the rent arrears was not made Julie Hyunh called the police for their advice. They went around to the property and spoke to the people that were living there that, as they had no legal rights to live there, they had to vacate by 30 March. A cleaner from Tim Vu cleaning property went to the property to clean. He found that the property was broken into and found people hiding in the bedrooms cupboards. There was evidence that they were living there even though they were asked to vacate the property by the police. Upon checking the property he found that there was damage such as aircon smashed from wall, illegal wiring going on from main house to large garage and backyard. Holes in walls, doors smashed, hot water system destroyed.”
Photographs have been supplied showing the state of the property. The claims made by the applicant above are confirmed by the photographs.
The applicant’s claim is summarised by a document supplied to the Tribunal on 26 August 2013. It is as follows:
“Builders Discount Warehouse $1,797.35
Air-conditioning quote $2,650.00
Adept Plumbing and Gas $1,836.99
Tim Vu’s Cleaning Property $630.00
Gecko removal of rubbish $400.00
QCAT Fee $200.00
Rent Arrears $2,460
Break Lease Fee $451.00
BB Electrical Australia Pty Ltd $770.00
BB Electrical Australia Pty Ltd $271.00
BB Electrical Australia Pty Ltd $545.00
Total owing $12,086.34”
The Tribunal was provided with a notice to leave which was dated 15 March 2013. It had been hand delivered to the respondents and required the tenants to vacate the premises by midnight on 24 March 2013.
I was told by the respondents that they left the premises on 21 February 2013. They locked the premises up and gave no permission for anyone else to go into the premises.
The respondents agree that they should be responsible for the rent up to 24 March from 21 February 2013 that is four and a half weeks at $410 per week, a total of $2845. The applicant accepted that that was a correct sum. The respondents say from that sum the bond of $1640 should be taken.
On 27 February 2013 the property manager for the applicant wrote to the respondents and advised that they have not received formal notification terminating the tenancy. They enclosed an agreement to terminate and a notice of intention to leave which they asked to be filled in and returned to the office. The letter specifically said:
“You have informed us that you have a relative or friend who wants to move into the property however, until they fill in an application form and supply 100 points of identification, and have been approved by the owner, that property is still your responsibility. We will not refund the bond until the property has an exit condition report done, unless the person taking over the property is happy to take it over as per the initial entry condition report. As advised to you earlier, you will have to pay one week’s rent plus GST for breaking the lease, plus rent up until the new person takes over.”
The Tribunal has been provided with a copy of an agreement to terminate fixed term tenancy seemingly signed by the respondents and someone on behalf of the applicant on 6 March 2013.
The exit condition report supply was not filled in nor signed. A notice of intention to leave was seemingly signed by the respondents on 6 March 2013. It had no time or date on which possession was to be given.
Photographs provided to the Tribunal show the property in poor condition with rubbish apparent, damage apparent and generally in poor condition.
The respondents contend that they are not responsible for the damage or the state of the property after they vacated. They say that they believe in or about either late March or early April the applicant reassumed possession of the property and changed the locks. They believe that after that happened the premises were broken into and the damage occurred. They point to a letter from the applicant to Mr Dzidic dated 8 June 2013 which states “your cousin and unknown other persons who caused damage” to the property. They deny that the person “Alen” is a cousin to either of them and say they are not aware of whether he was the person found living in the property after they vacated the property.
As part of exhibit eight, the applicant supplied tax invoices which supported the claims for fixing the damage done, replacing the hot water unit, cleaning and generally returning the property back to the condition it was when it was leased. That expenditure has not been challenged.
The basis for denying liability seems to be the assertion that the damage was caused by other persons and not by the respondents. They say that they were not responsible for the damage done by the other persons.
The determination of liability in my view will come down to when possession of the property was given over to the persons found in the house by the cleaner and the agent.
During the hearing the claim for outstanding rent was canvassed. The applicant was not really able to explain how the claim for rent was made out. However, during the discussion about that matter the respondent Maid Dzidic informed the Tribunal that he was willing to pay rent from 21 February 2013, the date up to which he had paid her rent, to 24 March 2013. It was calculated that for four and half weeks at $410 per week the total would be $2,485. From that amount the respondent wanted the bond of $1,640 which had already been paid to the applicant deducted.
As to the other claims, Mr Dzidic said that the damages and cleaning costs were caused by other people. He said,
“I myself locked the premises up and I still have the original keys. I never gave any permission for anyone else to live in the premises and I believe all these charges are criminal charges. Last Friday I had the police come to my house and question me about this incident and the house and I told them everything and they are going to charge the other people for breaking into the house and causing all the damage to the house and other criminal charges.”
He said that those people were not related to him and the property got broken into three times, even after possession was taken of the property.
The respondents told me that they did not give permission for any person to move into the house and that the persons who did move in broke in and are currently under a police investigation.
During the evidence given by Phuc Huyanh she told me that the Mr Dzidic admitted that last time in court the person who moved in was his cousin.
I have read the transcript of the hearing on 26 August 2013. I read the transcript because during the hearing before me it was said by the agent appearing on behalf of the applicant that the respondents admitted in that hearing that one of the occupants was a cousin. That admission was not made but the account given on behalf of the applicant was consistent.
On balance, having regard to the evidence given on behalf of both parties, I am reasonably satisfied that the respondents knew of the occupation of the house by others after the left. It does not really matter whether one of them was related to either of the respondents. In my view it is likely that the respondents allowed the occupants to stay in the house. That is consistent with the conversations had with the owner’s agent.
In my view the respondents are responsible for the damage done by those occupants. I do not find that the respondents did the damage or left the house in a poor condition.
I was told during the hearing that one of the occupiers was Alen Saverovic. That is the consistent with the conversation which the agent had at the time the respondents advised that they wished to end the tenancy early.
Given my findings and the obligation of the tenants to return the premises in a good condition, fair wear and tear accepted, the tenants are liable to pay for the repairs and the cleaning along with the agreed rent owed.
I consider the tenants are liable to pay:
Rent, $2845
Repair and cleaning costs, $8900.34
Filing fee, $200
Sub- total, $11945.34
Less bond taken, $1640
Total: $10,305.34
I do not allow the break lease fee because of the giving of notice to leave and the agreement said to be reached at the time notice of intention to vacate was given.
I order the respondents pay the applicant $10,305.34 forthwith.