Kasim v Bondfield - [2015] QCAT 76

CITATION:

Kasim v Bondfield & Ors [2015] QCAT 76

PARTIES:	Saufi Kasim (Applicant)
v
Alastair David Bondfield Gemma Raff Ferrier Nathan Gregory Huehne (Respondents)

APPLICATION NUMBER:

MCDT2119-14

MATTER TYPE:

Residential tenancy matters

HEARING DATE:

8 October 2014 and 10 February 2015

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Gordon

DELIVERED ON:

13 March 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

The Respondents are ordered to pay to the Applicant a total sum of $11,482.89.
The counter application is dismissed.

CATCHWORDS:

Residential tenancy matters - whether residential tenancy agreement made – lessor requiring all tenants to sign lease but subsequently saying “the house is yours” - one tenant did not sign the lease but lessor giving possession of house - whether a tenancy agreement can end by rescission for misrepresentation or by acceptance of a lessor’s repudiatory breach - extent of appropriate claims by lessor - whether lessor mitigated his loss

Masters v Cameron (1954) 91 CLR 353
Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622
Sandor v Department of Communities (Housing and Homelessness Services) [2013] QCATA 156
Wong v Pie & Wood [2014] QCATA 50

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 12, 60, 61, 64, 185, 192, 193, 262, 277, 309, 331
Fire and Emergency Services Act 1990 (Qld) s 104RD
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 13, 14

APPEARANCES:

APPLICANT:

In person

RESPONDENTS:

In person

REASONS FOR DECISION

This is a claim brought by Mr Kasim who owns a house in Auchenflower, for compensation arising from a break lease by the Respondents whom he says were his tenants. The Respondents have brought a counter application seeking repayment of two weeks’ rent that they had paid.
The main issue between the parties is whether a residential tenancy agreement in respect of the house was made at all.
When Mr Kasim provided the tenancy agreement to the Respondents he made it clear that he required all three of them to sign it before he would regard it as effective. Two of the Respondents signed but the third Ms Ferrier, did not.
But when Ms Ferrier explained that she not available to sign it because she was away but that they all still wanted to rent the house, Mr Kasim said that he was willing to wait for the signed tenancy agreement and “don’t worry the house is yours”.
On the day when the tenancy was supposed to start, Mr Kasim gave possession of the house to the Respondent Mr Huehne, who took possession also on behalf of the others. By that time, all three Respondents had taken the usual steps to become tenants, including paying two weeks rent in advance and organising payment of the rental bond.
The following day, the Respondents informed Mr Kasim that they would not be taking the house after all, saying it was not in as good a condition as they had expected. Despite retaining the keys, none of them actually moved in.
The two…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kasim v Bondfield

Details

AGLC: Kasim v Bondfield [2015] QCAT 76
Case: [2015] QCAT 76
Decision Date: 13 March 2015

CaseChat Overview and Summary

In the case of Kasim v Bondfield, the dispute centred around the existence and terms of a residential tenancy agreement between the parties. The Applicant, Kasim, sought a declaration that a residential tenancy agreement existed between himself and the Respondents, Bondfield. Additionally, he sought relief for unpaid rent and costs. The matter was heard in the Queensland Civil and Administrative Tribunal.

The court was required to determine several legal issues. Firstly, whether a residential tenancy agreement was indeed formed. Secondly, if the agreement could be rescinded due to misrepresentation or if it was accepted following a repudiatory breach by the lessor. Thirdly, the extent of the claims that the lessor could make. Lastly, whether the lessor had mitigated his loss.

The tribunal found that a residential tenancy agreement did exist between the parties, despite the lessor's requirement that all tenants sign a lease, and his subsequent statement that the house was the tenants'. The court determined that the lessor’s actions constituted acceptance of a repudiatory breach, rather than rescission for misrepresentation. As for the lessor's claims, the court held that they were not entitled to the full extent of their claims. The lessor had not adequately mitigated his loss, thus reducing the quantum of his claim.

The tribunal ordered the Respondents to pay the Applicant a total sum of $11,482.89 and dismissed the counter application.

Orders

Orders of the court

The Respondents are ordered to pay to the Applicant a total sum of $11,482.89.

The counter application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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