Morrow v Sweeney
[2013] QCAT 492
| CITATION: | Morrow v Sweeney [2013] QCAT 492 |
| PARTIES: | Glen Michael Morrow (Applicant) |
| V | |
| Paul Sweeney (Respondent) |
| APPLICATION NUMBER: | MCDO1025/13 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 20 August 2013 |
| HEARD AT: | Southport |
| DECISION OF: | C Trueman, Adjudicator |
| DELIVERED ON: | 20 September 2013 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | 1. That the claim is dismissed |
| CATCHWORDS: | Residential Tenancy agreement, fixed term lease, claim of excessive hardship, compensation for breach and repudiation of lease agreement, claim for loss of quiet enjoyment and personal injuries, invalid Notice to Leave. Queensland Civil and Administrative Tribunal Act 2009 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Glen Morrow |
| RESPONDENT: | Mr Paul Sweeney |
REASONS FOR DECISION
The issues
The matters to be determined are whether the lease agreement should be terminated as of 1 August 2013 due to excessive hardship and if the tenant is entitled to compensation for breach of the lease agreement in the sum of $994.27.
Background to the Dispute
The parties entered into a written residential tenancy agreement on 18 August 2012 for the property at 91 Gibraltar Drive, Isle of Capri for a period of 6 months. The lease was extended for a further fixed term period to 15 August 2013. The rent for the premises was $1800.00 per week.
The property was managed at the time by Lucy Cole Prestige Properties. It is undisputed that the Agents served Mr Morrow with a Form 10 Notice of Intention to sell premises dated 29 June 2013. A Form 12 Notice to Leave without grounds was served on Mr Morrow advising him that the Owner required vacant possession at the end of the lease. The Notice was issued on 12 June 2013 and gave notice to Mr Morrow to vacate the property by 15 August 2013.
It is undisputed that Mr Morrow was served with a Form 11 Notice to remedy Breach relating to rental arrears. The Notice was issued on 18 July 2013 and required the rent arrears to be paid by 14 August 2013. The Notice claimed that Mr Morrow owed rent in the sum of $3085.71.Mr Morrow disputed he owed any rent arrears.
Mr Morrow served Mr Sweeney with a Form 13 Notice of Intention to leave on 30 July 2013 giving Notice of his intention to leave the property on 1 August 2013. Mr Morrow stated the grounds for issuing the Notice was that “The Lessor repudiated the lease and as a result the tenant is entitled to have it terminated and to be paid compensation further or alternately hardship”. It appears from the dates of the notices that the Notice to Leave served by Mr Morrow on Mr Sweeney was in retaliation to the Form 11 Notice to remedy Breach relating to rental arrears issued by Mr Sweeney and served on Mr Morrow.
Mr Morrow alleges that the Mr Sweeney has “repudiated the lease by:
a. Repeated breaches of the obligation to allow quiet possession by having his contractors enter the property and cut down three trees and grind the stumps
b. Due to the negligence of the contracts for which the landlord is legally responsible the contractor failed to remove a wasp’s nest that was dislodged when one of the trees was cut down and the tenants associate was repeatedly stung by wasps as a result, consequently sustaining personal injuries.
c. Wrongly insisting that a notice to leave served by mail on 18 June 2013 was effective to terminate the lease as at 15 August 2013 and unlawfully insisting that the tenant vacate in accordance with such notice
d. Wrongly asserting by text message (confirmed by notice to remedy breach dated 5 August 2013) that the tenant only paid rent due up to 18 July 2013 and failed to pay rent for the period 18 July to 1 August 2013 issuing the notice to leave and a notice of intention to sell premises not in good faith for the purpose that such notice may lawfully be issued or unconscionable
e. The tenant will incur hardship if the lease is not terminated.”
The Legislation
The Tribunal has jurisdiction to hear and decide this matter pursuant to sections 11 and 12 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”). This matter concerns a claim by the applicant against the respondent for relief under the Residential Tenancies and Rooming Accommodation Act 2008 (“the Act”) in respect to a residential agreement over premises formerly occupied by Mr Morrow.
Section 429(1) of the Act provides that if there is a dispute between the lessor and tenant about an agreement, either party may apply to the Tribunal for an order and the Tribunal may make any order it considers appropriate to resolve the dispute.
Section 310 of the Act provides that the tenant may apply to a tribunal for a termination order because the tenant would suffer excessive hardship if the agreement were not terminated.
Section 343 of the Act provides that if an application is made to a tribunal for a termination order because of excessive hardship, the tribunal may make the order if it is satisfied the applicant has established the ground of the application.
Section 362 of the Act provides that a lessor must take all reasonable steps to mitigate a loss or expense because of a tenant’s action. The lessor is not entitled to receive compensation for any loss or expense that could have been avoided by taking reasonable steps.
The Findings of the Tribunal
The Tribunal must consider the evidence and submissions of both parties and had regard to the legislative obligations imposed on both the lessor and the tenant.
Mr Morrow claims that he will suffer excessive hardship if the lease is not terminated from 1 August 2013 as he would otherwise be required to be liable for rent on the Isle of Capri property and the new property he had moved into. The provisions of the Act enable the Tribunal to terminate an agreement if excessive hardship is established.
In the present matter, termination or end of the lease agreement was due to occur on 15 August 2013. Mr Morrow is seeking the tribunal’s indulgence to terminate the lease 14 days earlier on 1 August 2013. This is the date he has nominated in his Notice of Intention to leave. That notice of itself does not distinguish a tenant’s liability for rent up to and including the date of vacant possession. Mr Morrow was subject to a fixed term lease agreement, that lease was due to end on 15 August. In the absence of any evidence whatsoever that persuades me that Mr Morrow would suffer excessive hardship if the lease was not terminated earlier, I am not inclined to terminate the lease as requested by Mr Morrow. Mr Morrow has not proved any hardship that would warrant his application being granted.
Mr Morrow alleges that Mr Sweeney breached his obligations under the lease agreement and did not allow the tenant quiet possession. I do not agree with Mr Morrow’s position on that point. Mr Morrow refers to an incident where Mr Sweeney had trees removed from the property. Mr Sweeney said he noticed that property had some trees and branches that were leaning over, were overgrown and needed trimming. He said they looked untidy and thought that by having the trees removed would be a benefit for the tenant. He conceded that he did not inform Mr Morrow prior to the trees being removed but did not see it as being a problem.
It is not disputed that Mr Sweeney must take reasonable steps to ensure the tenant has quiet enjoyment of the premises[1]. Mr Sweeney must not interfere with the reasonable peace, comfort or privacy of the tenant in using the premises[2].
[1] Residential Tenancies and Rooming Accommodation Act 2008 s 183(1).
[2] Residential Tenancies and Rooming Accommodation Act 2008 s 183(2).
I accept Mr Sweeney’s evidence relating to the tree removal in that he thought he was doing the right thing and keeping the property tidy and trees and garden in order. It was not disputed the tree removal was completed within 2 days of tree works. Mr Morrow claims compensation of two days rent for the inconvenience of having the tree contractors on his property. The daily rental amount is $257.14 and for the two days claimed for the loss of quite enjoyment the total claim is for $514.27. I am not satisfied that Mr Morrow is entitled to compensation of two days rent for the tree works. I find that the tree cutting benefited Mr Morrow and although Mr Sweeney should have informed Mr Morrow before the trees were removed, I do not find that breach by the Lessor, justifiable of compensation. Mr Morrow did not give any evidence as to the inconvenience or what was the extent of loss of quiet enjoyment of the property during those two days. The claim for compensation for loss of quiet enjoyment and possession of the property is unmeritorious and I dismiss that part of the claim.
Mr Morrow claims that the Notice to leave that was issued was invalid. I do not agree with that proposition. The Notice to leave was without Grounds, giving the requisite two months Notice to leave the property for a fixed term tenancy agreement due to end of lease[3]. The Notice gave Mr Morrow the requisite Notice to vacate the property. I am satisfied that the Notice to Leave was in the correct approved form and complied with the Act[4].
[3] Residential Tenancies and Rooming Accommodation Act 2008 s 291.
[4] Residential Tenancies and Rooming Accommodation Act 2008 s 326.
The further claim for compensation by Mr Morrow against Mr Sweeney relates to an amount of $480.00 for the “Injuries sustained by the tenant’s wife in the subsequent wasps attack”.
Mr Morrow did not produce any evidence relating to this claim. There was no evidence of the extent of the alleged injuries or any medical expenses. There was no evidence that Mr Sweeney’s contractors caused the wasps to sting Mr Morrow’s wife due to the removal of trees from the property and the alleged agitation of a wasps nest. In fact this assertion is what I would consider a very, very long bow to draw that I could find that Mr Sweeney was directly or indirectly responsible for wasps stinging Mr Morrow’s wife. I am not persuaded that this claim for compensation, which seems to be a pseudo personal injuries claim, has any merit at all and is in all the circumstances, frivolous. For these reasons I dismiss this claim for compensation for alleged injuries arising from the wasps attack.
I am not persuaded to make an order for termination due to excessive hardship and the claims for compensation are without merit. Therefore, I order that the claim be dismissed.
The Order
1. That the claim is dismissed.
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