Roberts v McGrath Estate Agents Springfield - [2021] QCAT 427

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Roberts & Anor v McGrath Estate Agents Springfield [2021] QCAT 427

PARTIES: TAMIKA ROBERTS
CHRISTOPHER ROBERTS

(applicants)

v

MCGRATH ESTATE AGENTS SPRINGFIELD

(respondent)

APPLICATION NO/S:

MCDT0388-21

MATTER TYPE:

Residential tenancy matters

DELIVERED ON:

15 December 2021

HEARING DATE:
10 November 2021

HEARD AT:

Ipswich

DECISION OF:

Adjudicator Gaffney

ORDERS:
1.   Christopher Roberts is joined as an Applicant.

2.   The notice to leave dated 6 May 2021 is deemed to be a notice to leave for non-livability.

3.   The Respondent is to pay to the Applicant the amount of $2,222.67 within 30 days from the date of this Order.

CATCHWORDS:
LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – where the Applicants were tenants pursuant to a residential tenancy agreement – where the back deck of the rental premises became unsafe causing the loss of a second fire exit – where the Respondent issued a notice to leave under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’) ostensibly without ground – where both parties treated the notice as one for non-livability under section 284 of the RTRAA – whether the Tribunal may treat the notice as for one for non-livability – whether the premises were made unliveable – whether they were made unliveable due to a breach of the lease by the lessor – where repairs could not be commenced for at least two months – whether the notice to leave was given within the one month time period prescribed by section 284(2) of the RTRAA – whether time runs from the date on which the premises are made unliveable or the date on which the lessor becomes aware that the premises have been made unliveable – where the Applicants sought compensation arising from the issue of the notice to leave including the costs of having to leave the premises at short notice and without having access to the rental bond – whether the issue of the notice out of time is a breach of the lease invoking the Tribunal’s jurisdiction to award compensation – whether the amounts claimed as compensation should be awarded.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 42(1), s 100

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 52, s 284, s 420, s 426, s 429

Austin v Bonney [1999] 1 Qd R 114

Challands v Jackson [2014] QCATA 330

Hobbs v PGK Pty Ltd [2018] QCATA 156

Jones v Bartlett (2000) 205 CLR 166

Khromeenkova v PRD Robina Nationwide [2021] QCATA 35

APPEARANCES:

Applicants:

Self-represented by Tamika Roberts and Christopher Roberts

Respondent:

Dani Watson, Leanne Cebulski

REASONS FOR DECISION

Summary of claim

The Applicants seek $4,506.95 from the Respondent arising out of a residential tenancy in relation to a premises at Redbank Plains (‘the property’). The Applicants were the tenants. The Respondent is the agent for the property. A written lease, amounting to a residential tenancy agreement as defined in section 12(1) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’), was entered…

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 Roberts v McGrath Estate Agents Springfield

Details

AGLC: Roberts v McGrath Estate Agents Springfield [2021] QCAT 427
Case: [2021] QCAT 427
Decision Date

CaseChat Overview and Summary

The matter before the tribunal involved a dispute between the Applicants, the tenants, and the Respondent, McGrath Estate Agents Springfield, who acted as the agent for the lessor. The Applicants sought to recover their bond and an additional two weeks' rent from the Respondent after the bond had been released and the tenancy had ended. The Applicants argued that the Respondent had failed to comply with certain provisions of the Residential Tenancies Act 2008 (Qld). The tribunal was required to determine whether the Applicants were entitled to recover the bond and two weeks' rent from the Respondent and, if so, the amount owed. The tribunal also needed to consider the appropriate costs order in light of the Applicants' partial success.

In considering the merits of the claim, the tribunal held that the Applicants were not entitled to recover the full amount claimed. The Applicants had already received their bond, and it would have been necessary for them to pay rent in any event. Therefore, the claim for the bond and two weeks' rent was seen as an overreach. The tribunal applied section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), which provides that where a party has succeeded on some but not all of their claims, the costs of the proceeding are to be borne by the parties in proportion to the extent of their success or failure. Accordingly, the Applicants were not entitled to a costs order in their favour. Instead, the tribunal found that the parties should bear their own costs.

The tribunal found in favour of the Applicants in part, awarding them a total of $2,222.67. This sum comprised $2,042.67 in relation to the bond and $180 for the two weeks' rent. Given the amount in question, the tribunal deemed it fair and equitable to allow the Respondent 30 days in which to pay the sum awarded. The tribunal did not make any other orders.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Applicants have not been wholly successful in their claim – to claim the amount of the bond and two weeks rent when the bond had been released and they would have had to pay rent in any event indicates a degree of overreach. In those circumstances section 100 of the Queensland Civil and Administrative TribunalAct 2009 (Qld) should apply and the parties should bear their own costs.Conclusion The Respondent (as agent for the lessor) should pay to the Applicants a total of $2,222.67 ($2,042.67 + 180.00). As this is not an insignificant sum, I consider it fair and equitable that 30 days be allowed in which to pay it.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	*Roberts & Anor v McGrath Estate Agents Springfield* [2021] QCAT 427
PARTIES:	TAMIKA ROBERTS CHRISTOPHER ROBERTS
(applicants)
v
MCGRATH ESTATE AGENTS SPRINGFIELD
(respondent)
APPLICATION NO/S:	MCDT0388-21
MATTER TYPE:	Residential tenancy matters
DELIVERED ON:	15 December 2021
HEARING DATE:	10 November 2021
HEARD AT:	Ipswich
DECISION OF:	Adjudicator Gaffney
ORDERS:	1. Christopher Roberts is joined as an Applicant. 2. The notice to leave dated 6 May 2021 is deemed to be a notice to leave for non-livability. 3. The Respondent is to pay to the Applicant the amount of $2,222.67 within 30 days from the date of this Order.
CATCHWORDS:	LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – where the Applicants were tenants pursuant to a residential tenancy agreement – where the back deck of the rental premises became unsafe causing the loss of a second fire exit – where the Respondent issued a notice to leave under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’) ostensibly without ground – where both parties treated the notice as one for non-livability under section 284 of the RTRAA – whether the Tribunal may treat the notice as for one for non-livability – whether the premises were made unliveable – whether they were made unliveable due to a breach of the lease by the lessor – where repairs could not be commenced for at least two months – whether the notice to leave was given within the one month time period prescribed by section 284(2) of the RTRAA – whether time runs from the date on which the premises are made unliveable or the date on which the lessor becomes aware that the premises have been made unliveable – where the Applicants sought compensation arising from the issue of the notice to leave including the costs of having to leave the premises at short notice and without having access to the rental bond – whether the issue of the notice out of time is a breach of the lease invoking the Tribunal’s jurisdiction to award compensation – whether the amounts claimed as compensation should be awarded. *Queensland Civil and Administrative Tribunal Act* 2009 (Qld), s 42(1), s 100 *Residential Tenancies and Rooming Accommodation Act* 2008 (Qld), s 52, s 284, s 420, s 426, s 429 *Austin v Bonney* [1999] 1 Qd R 114 *Challands v Jackson* [2014] QCATA 330 *Hobbs v PGK Pty Ltd* [2018] QCATA 156 *Jones v Bartlett* (2000) 205 CLR 166 *Khromeenkova v PRD Robina Nationwide* [2021] QCATA 35
APPEARANCES:
Applicants:	Self-represented by Tamika Roberts and Christopher Roberts
Respondent:	Dani Watson, Leanne Cebulski