Schluter v Thomson
[2018] QCATA 146
•24 September 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Schluter v Thomson [2018] QCATA 146
PARTIES:
RAYMOND SCHLUTER
LEAH SCHLUTER
(applicant/appellant)v DANICA THOMSON
(respondent)
APPLICATION NO/S:
APL406-17
ORIGINATING APPLICATION NO/S:
T95/17
MATTER TYPE:
Appeals
DELIVERED ON:
24 September 2018
HEARING DATE:
13 September 2018
HEARD AT:
Brisbane
DECISION OF:
Justice Carmody
ORDERS:
The application for leave to appeal or appeal is refused.
CATCHWORDS:
APPEAL – MINOR CIVIL DISPUTE – where the applicants for leave argue the tribunal erred by misinterpreting provisions of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) – where the applicants applied for a termination order and a warrant of possession was issued – where the applicants claim entitlement to lost rent after the termination of the tenancy agreement by order – where a termination order by definition brings obligations under a tenancy to an end – where the question of whether the tenant delivered vacant possession of the premises is a question of fact – where the tribunal’s finding that the property had been abandoned was open on the facts – where leave to appeal is refused
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 358
APPEARANCES & REPRESENTATION:
Applicant:
Wendy Chatto (Property Agent)
Respondent:
No attendance
REASONS FOR DECISION
The tribunal dismissed the applicants’ $1585.70 unpaid rent claim. Leave to appeal is applied for to argue that in rejecting the claim the tribunal misapplied the law due to interpretation error. The respondent is non-compliant.
The context
The General Tenancy Agreement (GTA) ran from 24 June 2016 to 23 December 2016 (6 months). Rent was $600 per fortnight. According to the applicant, the property was left in an “unacceptable state” and rent was not paid up to date.
A warrant of possession was issued on 15 September 2016 to take effect for 14 days from 16 September 2016.
When the police attended the property on 30 September 2016 it was abandoned. The respondent did not hand back the keys.
The owner’s insurance covered rent arrears (and other damage) to 16 November 2016 as per the policy ($4500). The bond of $1200 was released to the property agents on 8 December 2016 and applied to outstanding invoices for damage, changing the locks, cleaning, electrical repairs and painting.
The applicants’ money claim, therefore, is rent for the period of 16 November 2016 to the date the GTA was due to end, 23 December 2016 (i.e. what the insurance did not cover).
The applicants made no substantive written submissions in the appeal but cited the following provisions of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRAA).
Section 277(5)(a):
A residential tenancy agreement ends—
(a) if a tribunal makes an order terminating the agreement; or
(b) if the tenant abandons the premises.
Section 358(1)(a)-(b), (2)(a)-(b):
(1) If a tenant fails to hand over vacant possession of premises after a termination order is made by a tribunal, the lessor is entitled to receive from the tenant—
(a) compensation for any loss or expense incurred by the lessor by the failure; and
(b) an occupation fee equal to the amount of rent that would have been payable by the tenant for the premises for the period the tenant remains in possession after termination of the agreement.
(2) If an application is made to a tribunal under this section by the lessor, the tribunal may make an order requiring the tenant to pay to the lessor the following amounts—
(a) the amount it considers the lessor is entitled to receive for compensation;
(b) the amount it considers the lessor is entitled to receive for the occupation fee.
Section 362(1)(a)-(c):
(1) This section applies to the lessor if the lessor incurs loss or expense because of—
(a) the tenant’s failure to hand over vacant possession of the premises after a termination order is made by a tribunal; or
(b) the tenant’s abandonment of the premises; or
(c) another act or omission of the tenant.
Section 421(1)(a)(i)-(ii), (b)-(c):
(1) Without limiting section 420(1), in making an order for compensation in favour of a lessor, a tribunal must have regard to the following—
(a) rent required to be paid but not paid for the period starting when the agreement is terminated because of the tenant’s action and ending—
(i) when the period fixed as the term of the tenancy ends; or
(ii) if the premises are relet before the end of the period mentioned in subparagraph (i)—when the premises are relet;
(b) advertising expenses incurred by the lessor for reletting the premises;
(c) other expenses incurred by the lessor for work carried out by the lessor for reletting the premises;
In oral argument it was submitted for the applicants that rent is payable by a defaulting tenant up to the agreed end date of the tenancy even if a termination order has been made and warrants of possession issued.
It is also contended that the evidence was strongly against the finding that the tenant did not hold over within s 358.
By definition a “termination order” brings tenancy obligations to an end and entitles the lessor to retake possession under a covenant or otherwise.
The proposition that the rent obligations under the GTA terminated by tribunal order continue until the term expires is untenable, especially but not only because of the wording of s 358(1)(b).
However, failure to hand over vacant possession of the premises after a termination order is made by the tribunal gives the lessor an enforceable right to compensation for incurred losses and an “occupation fee” equal to the rent.
Whether vacant possession was handed over is a question of fact. Leave to overturn the tribunal’s finding on appeal is not justified because the tribunal’s interpretation of the facts was reasonably open.
The applicants had no direct evidence the tenant remained in possession after 30 September 2016 (the date the warrant expired). The applicants claim that just because the respondent wasn’t there when police executed the warrant doesn’t mean she was not in occupation and the contrary inference is compelled by the presence of her belongings and (even though the locks were changed on 26 September 2016) retention of the house keys.
It was rationally open to the tribunal to reject the applicants’ argument that the tenant was liable until the end of the fixed term and that an equivalent occupation fee under s 358 was payable.
As no arguable error of law or fact is demonstrated the application is refused.
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