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Sasip Pty Ltd v Ashe

Sasip Pty Ltd v Ashe

Case [2021] QCAT 99 19 February 2021

Unconscionable Conduct

Civil Litigation & Procedure

Residential Tenancy Law

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Sasip Pty Ltd v Ashe & Anor [2021] QCAT 99

PARTIES: SASIP PTY LTD

(applicant)

v

GRAHAM ASHE

(first respondent)

SAMUEL HUTH

(second respondent)

APPLICATION NO/S:

MCDT1127-20

MATTER TYPE:

Residential tenancy matters

DELIVERED ON:

19 February 2021

HEARING DATE:

17 December 2020

HEARD AT:

Southport

DECISION OF:

Adjudicator Lember

ORDERS:
1.   That the respondents pay the applicant the sum of $7,080.29 comprising;

(a)    $123.21 water;

(b)   $2,463.64 carpet damage; and

(c)    $4,493.44 vinyl floor damage.

2.   That to give effect to Order 1:

(a)    The Residential Tenancies Authority is to release the bond held in the sum of $2,740.00 to the applicant in full; and

(b)   The respondents are to pay the applicant the further sum of $4,340.29 by 31 May 2021.

CATCHWORDS:
LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OTHER MATTERS – compensation – where landlord alleges damage caused to floors by tenants’ pets – betterment – duty to mitigate - where tenant alleges misuse of notice to leave for owner occupation – COVID-19 notices

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – where tenant attempts to deceive Tribunal – whether attempt to deceive caused unnecessary disadvantage

Acts Interpretation Act 1954 (Qld), s 32D
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 8, s 11, s 13, s 48, Schedule 3
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 11, s 12, s 61, s 188, s 349, s 362, s 416,
s 419, s 420, s 429
Residential Tenancies and Rooming Accommodation (COVID-19 Emergency Response) Regulation 2020 (Qld), reg 8(1), reg 12, reg 37, reg 40

Arowana Pty Ltd (t/a Choice IT Australia) v Scott [2019] QCATA 100
Darbishire v Warran [1963] 1 WLR 1067
Davidson v J S Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1

Dimond v Lovell [2002] 1 AC 384

Fankhauser v Mission Beach Property Management [2017] QCATA 65
Gagner Pty Ltd t/as Indochine Café v Canturi Corporation Pty Ltd (2009) 262 ALR 691.

Griffin v Gini [2011] QCATA 325
Johnson v Perez (1988) 166 CLR 351
Laffey & Coastalite Pty Ltd v L & V Project Pools Pty Ltd [2019] QCAT 238
North South Real Estate & Anor v Kavvadas [2017] QCAT 306
Ray White Victoria Point v Simons & Anor [2018] QCATA 162

Stockdale & Leggo v Gordon [2017] QCATA 112

Stone v Grundy [2018] QCATA 68
The Pot Man Pty Ltd v Reaoch [2011] QCATA 318
Tracey v Olinderidge Pty Ltd & Wagner [2015] QCAT 7

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented, by agent

Respondent:

Self-represented

REASONS FOR DECISION

Claims

This is an application by Sasip Pty Ltd as the owner of a property situated at Biggera Waters (“the tenancy”) and a counter application by its former tenants, Mr Ashe and Mr Huth. At the relevant time of the tenancy, Stewart & Smyth Estate Agents were the managing agents for the tenancy and Mrs Barker was a director of the applicant.
On 14 September 2020, the applicants filed an application under various sections…

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 Sasip Pty Ltd v Ashe

Details

AGLC: Sasip Pty Ltd v Ashe [2021] QCAT 99
Case: [2021] QCAT 99
Decision Date

CaseChat Overview and Summary

The applicant, Sasip Pty Ltd, filed an application for compensation for damage caused by the respondent tenants, Mr Ashe and Mr Huth, during their tenancy of a property at Biggera Waters. The tenants counterclaimed for compensation for expenses incurred due to the applicant’s notice to leave the property on the grounds of owner occupation, which they say was a misuse of the COVID-19 regulations. The application was heard by Adjudicator Lember who found that the tenants had attempted to deceive the Tribunal by fabricating evidence in a concerted effort to reduce or defeat the applicant’s claim. The Tribunal did not dismiss the tenants’ counter application, instead finding on the merits that the notice to leave was lawfully given and that the tenants’ moving expenses were not caused by any breach of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) or the tenancy agreement. The Tribunal ordered the tenants to pay the applicant $7,080.29 comprising water charges of $123.21, $2,463.64 for carpet damage and $4,493.44 for vinyl floor damage. The Tribunal ordered that the bond held by the Residential Tenancies Authority be released to the applicant in full and that the tenants pay the remaining amount by 31 May 2021.

Orders