Koehler v Rao

[2012] QCAT 716

CITATION: Koehler v Rao [2012] QCAT 716

PARTIES:	Carsten Koehler (Applicant)
v
Devdas Rao (Respondent)

APPLICATION NUMBER: MCDT1583-12

MATTER TYPE: Residential tenancy matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: John Bertelsen, Adjudicator

DELIVERED ON: 18 December 2012

DELIVERED AT: Brisbane

ORDERS MADE: The reopening application is refused.

CATCHWORDS:

Grounds of reopening – excuse for non attendance – absence of evidence – procedural fairness – availability of evidence

Queensland Civil and Administrative Tribunal Act 2009, ss 32, 137

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. The respondent seeks to reopen this application heard 23 October 2012.

1. The original application was made by the owner of 35/164 Spence Street, Bungalow for post tenancy arrears of rent, reletting fees, cleaning and repairs. 

1. The application was served on the respondent in accordance with RTA legislation.  There is no suggestion in the respondents reopening application that he had not received the application or that he was not aware of the hearing date.  No reason for non attendance at hearing is proffered.

1. The respondent vacated the premises on 3 July 2012 having given what he says was the statutory two weeks notice applicable to a periodic tenancy.  He annexes a copy of an agreement to extend end date – fixed term tenancy.  This document could be viewed as a contradiction in terms.  Where the end date ought to have been nominated in the agreement the words ‘periodic tenancy’ appear.  It is staggering that the applicant’s agent at the time Petrina Riley has put her name to such a document.  Clearly the tenancy became periodic upon the expiry of any prior written tenancy agreement.

1. The applicant states that he was continually assured that the ‘tenant has signed a new 6 month lease’.  The applicant in his submissions on reopening annexes 2 versions of the tenancy extension agreement, one with no commencing date or signature dates and one with both commencing date and dates of signature identified.  The applicant has complained to the Office of Fair Trading regarding these anomalies. 

1. The application asserted the ‘break of lease and letting fee’ and claimed rent from 9 July 2012 to 18 August 2012.  That was never contested.  Reduced rent from 19 August 2012 to 9 September 2012 was also claimed as well as cleaning and repairs.  Those were never contested.

1. There is no suggestion by the respondent that the annexures now produced by him were not available at the date of hearing or that he was precluded from producing or at least asserting their existence at the time of hearing.  One could be forgiven for viewing, particularly Ms Riley’s letter of 3 July 2012 with a degree of concern so much the more so in the context of the applicant’s lawyers letter of 13 July 2012 seeking to retrieve keys and rental file from Ms Riley and threatening legal action if that were not done.  This letter is addressed to Ms Riley but incredibly now produced by the respondent as evidence of termination of the relationship between the applicant and Ms Riley as agent.  Where the production of this letter at this point is meant to lead in terms of the reopening application is unclear.

1. No identifiable reason has been proffered by the respondent to satisfy the Tribunal that he had a reasonable excuse for non attendance on 23 October 2012.  Nor is there any assertion by the respondent that the material annexed to his reopening application was not available to be put in evidence at hearing.  The Tribunal expresses in any event misgivings as to the authenticity of some of that material.

1. There is no reopening ground established pursuant to s 137 of the QCAT Act.

1. The reopening application is refused.