Quessada v Tym-On Investments Pty Ltd
[2014] QCAT 531
•24 October 2014
CITATION: Quessada v Tym-On Investments Pty Ltd [2014] QCAT 531
PARTIES: Didier Michael Quessada
(Applicant)v Tym-On Investments Pty Ltd t/as Ray White Tugan
(Respondent)
APPLICATION NUMBER: MCDT1234-14
MATTER TYPE: Residential tenancy matters
HEARING DATE: 23 September 2014
HEARD AT: Southport
DECISION OF: Mr Chang, Justice of the Peace (Presiding)
Mr Royce, Justice of the Peace
DELIVERED ON: 24 October 2014
DELIVERED AT: Southport
ORDERS MADE: 1. The RTA releases the bond of $2000 (4273794-x) as follows: $2000 to the Tenants.
2. The Respondent pay to the Applicant Mr Didier Quessada the sum of $105 filing fee within 14 days of this decision.
3. That all claims sought in these proceedings by the Respondent against the Tenants are dismissed.
CATCHWORDS: Expressed obligation, implied terms, unconscionable, statutory limitation. APPEARANCES and REPRESENTATION (if any):
APPLICANT: Didier Michael Quessada RESPONDENT: Tym-On Investments Pty Ltd t/as RayWhite Tugan. This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Key Background Facts:
[1]The Applicant had 3 fixed term Tenancy Agreement while at the subject rental premises at Palm Beach (Qld) in conjunction with a 2nd tenant Kelly Makepeace
a.The 1st commencing 1.11.10 and ending 30.10.11
b.The 2nd and 3rd followed with the 3rd ending on 18.04.13
The agreed date of vacating was 25.06.14 the days after the expiration of the 3rd contract to the date of vacating was on a periodical basis, the same water consideration in the 3rd agreement applied throughout the periodical tenancy arrangement.
[2]Each contract had an expressed obligation for the tenants to pay for reasonable water consumption, the formula at item 12.2 of the 1st agreement stipulated payment of water in excess of 100kl per six months at GCCC rate. The subsequent agreements (2nd and 3rd) on this point changed to; the tenants paying reasonable water consumption, the formula at item 12.2 of these agreements stipulated payment of water in excess of 50kl per six months at GCCC rate.
[3]The respondent sought payments from the tenants for unpaid water consumption covering the contracts in question totalling $1,116.90 and a further $178.50 to rectify the black spot from the pool situated at the rental premises. A total of $1,295.40.
[4]The RTA holds a Bond of $2,000 and the applicant sought this amount in his initiating application to QCAT and the filling fee of $105. A total of $2,105.
[5]Supporting documents were presented to support each amount by way of either invoices or rates notices from the GCCC.
[6]On 23.09.14 our decision was reserved due to conjecture as to what contractual arrangements were in place at the time the tenancy ended. Directions were given and complied with; we sought that the respondent;
a.File and serve a full copy of the 3rd Tenancy Agreement and all special conditions, and
b.Any further documents going to either an extension to that 3rd agreement or documents to support the arrangement of a periodical tenancy agreement and any and all special conditions attaching to either instrument. This direction was complied with.
c.The applicant was asked to confirm within a further 7 days of the above the authenticity of the documents filed. That was done, apart from an issue of the unsigned “Agreement to extend end date –Fixed Term Tenancy” a change made to a (date) typo on the respondents’ filed document to the one the applicant had on his personal file. There was no issues regarding authenticity arising from the 3rd Tenancy Agreement and special conditions now filed. To avoid any uncertainty the unsigned “Agreement to extend end date –Fixed Term Tenancy” has no barring in our findings, even if signed.
[7]RTA Conciliation number M305096 issued 29.07.14 Note resolved.
Reasons for the decision[8]There were two key considerations that the parties sought a determination on:
- Pool cleaning / maintenance on vacating
- Payments of water accounts over each of the three tenancy agreements, and the periodical period that followed the 3rd fixed term tenancy agreement.
[9]The Pool. The tribunal considered the issue of the pool’s black (stain). The evidence in chief of the applicant is accepted on this point and supported by Moby Pool Invoice 2nd July 2014, showing two 1m lengths of Barracuda pool hose being purchased by the respondent to correct the issue of the Barracuda pool cleaner not having sufficient hose length to clean this part of the pool. This was an ongoing issue, had the extra two 1m lengths been purchased earlier the issue would not have arisen.
[10]The pool issue was further aggravated by that area of the pool having over hanging vegetation. The trimming of this we find was an obligation of the respondent; to firstly advise the owner, secondly take instruction or allow the owner to rectify.
[11]The Water Accounts. It was established and accepted by the parties that the first time an account was issued to the tenants to pay for water used in excess of the various allowances available to them pursuant to the Tenancy Agreements was after vacating the premises.
[12]The 1st Tenancy Agreement ran from 1.11.10 to 30.10.11 Water in excess of 100kl every six months was the obligation of the tenants.
[13]The two ensuing tenancy agreements ended on 18.4.14 Water in excess of 50kl every six months was the obligation of the tenants in these new contracts. In this application these are the key issues under consideration to confirm the obligation going to the question of water.
[14]The respondent gave to the tenants (after vacating) GCCC various copies of water rates notice covering the periods of their tenancy.
[15]The tenancy agreement allowed for six persons to reside within the premises, the accepted evidence is that between two and five persons utilised the house on a regular basis during this tenancy.
[16]An issue has arisen as to the fairness of the timing of furnishing the water accounts after termination of the tenancy agreement. The contract terms are silent on this point. Therefore we will consider a number of principles to address the impasse.
i.Any axiomatically implied terms to the agreements, then any breach
ii.The advantage or disadvantage to the parties via the conduct in question; and or
iii.Was any conduct of the respondent unconscionable
[17]After considering the full details of the undertaking to pay for water in excess of each six months allocations (see points 12, 13). We determine there is an implied term; see 17 i.
i.That the respondent should have passed onto the tenant within a reasonable time frame (21 days) a copy of the water account and any further calculations used to support an obligation to pay excess water. It then follows that;
ii.By not doing this a tenant cannot adjust the method or volume of water usage over the residual of the tenancy should they so desire or need to adjust this based on their fiscal limitations or needs; and
iii.Without a notification advising of water usage a tenant could in fact believe they are under their allowance for water, based on the fact no account(s) have been issued and increase their water usage on that false premise. A further clear disadvantage they face; and
iv.The duration of occupancy was in excess of three years, the combined bills are large and unbudgeted, and whereas the respondent and or the owner have known of the accounts yet has failed to act. Possibly in the belief they can get a lump sum direct from the tenant at the end of the tenancy or via a claim to the RTA. Many tenants may simply pay due to inexperience or fiscal pressure, to have the residual of the bond released to them. Unconscionable conduct; and
v.Any water leaks may also be detected by a spike in bills, if the tenant has made no change to water usage, the issue (water leak / spike in bill) could be brought to the respondents attention in a timely manner. In this matter a water leak was found to have been applicable and to the credit of the respondent they made an adjustment to that billing period. (On the tenants vacating)
vi.Having considered the experience disparity in this instance, between the respondent (a licensed realtor) and the tenants / applicant on issues regarding rentals, RTA, agreements and the like, this non-disclosure of the water account in this instance and for the reasons already expressed amounts to unconscionable conduct. We have no evidence nor do we intend to make comment on issues between the agent and owner.
[18]We find the issue of statutory limitation within residential non urgent matters has application to the current case; generally a lesser is seeking non-payment of rents, a limit of six months would apply (once the correct dates for calculations are extrapolated from the evidence within each instance and case), there is no jurisdiction that allows an enlargement of these six months limitation. We find the limitation applies to any term within a tenancy agreement that is capable of quantification or subject to a percentage reduction; based on sufficient evidenced produced by either party.
[19]Therefore an in addition to point 16 iii and 17 hereinbefore the tribunal as a separate issue would be unable to order payments that fall outside the six month limitation. The starting point for calculation of the six months for each of the water rates notices will not be needed in this instance. It is more a point of calcification to the respondent and if a known fact to them, further weight in favour of our finding at 17 vi. The last water rates account and any proven excess water that the tenants were liable for, may have been capable of determination without the six months statutory issues acting as a bar. That however is academic given our other findings within this case.
[20]The documents that the respondent filed outside of the scope of the orders made on the 23rd September 2014 have not been considered in these finding, they are in the main variations on the quantum of calculations to water amounts sought.
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