Sharma v Kirkston Holdings Pty Ltd - [2025] QCATA 1

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Sharma v Kirkston Holdings Pty Ltd [2025] QCATA 1

PARTIES:

DONALD LALESH SHARMA

(applicant/appellant)

v

KIRKSTON HOLDINGS PTY LTD

(respondent)

APPLICATION NO/S:

APL060-23

ORIGINATING APPLICATION NO/S:

MCD195-23 Brisbane

MATTER TYPE:

Appeals

DELIVERED ON:

7 January 2025

HEARING DATE:

1 October 2024

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

1.     Leave to appeal granted.

2.     Appeal allowed.

3.     The order made by the Adjudicator on 1 March 2023 is set aside.

4.     In lieu the following Orders are substituted:

(a)     The Residential Tenancies Authority pay the rental bond in the sum of $1,280 to Kirkston Holdings Pty Ltd.

(b)     Subject to Donald Lalesh Sharma having paid an additional sum of $558 to Kirkston pursuant to the Order made 1 March 2023, Kirkston Holdings Pty Ltd repay that amount or the amount paid in excess of the bond to Donald Lalesh Sharma.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where tenants vacated early – where the tenants claimed the bond – where that was opposed by the lessor – where the tenants sought conciliation on the bond through the Residential Tenancies Authority – where the tenants commenced minor civil dispute proceedings in the Tribunal – where an Adjudicator ordered the bond paid out to the lessor and made additional orders for payment by the applicant tenants of compensation to the lessor – where the lessor had not filed a counter application in the Tribunal for payment of compensation in addition to the bond – where the tenants sought leave to appeal

Residential Tenancies and Rooming Accommodation Act2008 (Qld), s 136D, s 419, s 420, s 421

Pickering v McArthur [2005] QCA 294

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

No appearance

REASONS FOR DECISION

The appellant, Mr Sharma, together with his partner (jointly referred to as ‘the tenants’), entered into a three month residential tenancy agreement with the respondent company (‘Kirkston’).
The period of the tenancy was from 24 August 2022 to 23 November 2022 at a rent of $330 per week.
Kirkston gave the tenants a Form 12 Notice to Leave of two months effective from 29 September 2022 and ending 29 November 2022.
Mr Sharma requested more time to find another property and Kirkston agreed to another two month tenancy commencing 24 November 2022 and ending 31 January 2023, but at a rent of $350 per week. A second tenancy agreement was executed between the parties to that effect.
In early December 2022 the applicant informed the respondent that the tenants had found another property. The tenants vacated on 13 December 2022.
The respondent listed the property with real estate agents who advised it would take some time to rent given the Christmas closure.
Kirkston however was contacted by a former tenant of the property who agreed to take the property again from 8 January 2023.
Mr Sharma applied to the Residential Tenancies Authority to recover his bond. That was opposed…

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.

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Details

Case: [2025] QCATA 1
Decision Date: 7 January 2025

CaseChat Overview and Summary

Sharma v Kirkston Holdings Pty Ltd was an appeal brought before the court involving a dispute over a rental bond. The tenants, Sharma and others, vacated their property early and sought to reclaim their bond, which was opposed by the lessor, Kirkston Holdings Pty Ltd. The tenants pursued their claim through the Residential Tenancies Authority and later in the Civil and Administrative Tribunal (CAT). An Adjudicator ordered the bond to be paid to the lessor and also required the tenants to compensate the lessor. The tenants sought leave to appeal this decision, arguing that the Adjudicator erred in making certain orders.

The primary legal issue before the court was whether the Adjudicator had the authority to order compensation beyond the bond when the lessor had not filed a counter application for such compensation. The court needed to determine if the Adjudicator’s orders were beyond their jurisdiction and whether the Tribunal had the authority to make orders not sought by the parties. The court also considered whether the Adjudicator had correctly exercised their discretion in ordering compensation.

The court found that the Adjudicator had not acted within their jurisdiction when ordering compensation, as this was not requested by either party. The lessor had not filed a counter application for compensation, and the Tribunal should not have made such an order. Consequently, the court set aside the Adjudicator's order and substituted new orders. The court directed that the Residential Tenancies Authority should pay the bond to the lessor. Additionally, the court ordered that, subject to the tenants having paid an additional sum to the lessor, the lessor should repay that sum or the excess amount to the tenants. The court granted the tenants leave to appeal and allowed the appeal, setting aside the original order and substituting new orders as outlined.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. The order made by the Adjudicator on 1 March 2023 is set aside.

4. In lieu the following Orders are substituted:

(a) The Residential Tenancies Authority pay the rental bond in the sum of $1,280 to Kirkston Holdings Pty Ltd.

(b) Subject to Donald Lalesh Sharma having paid an additional sum of $558 to Kirkston pursuant to the Order made 1 March 2023, Kirkston Holdings Pty Ltd repay that amount or the amount paid in excess of the bond to Donald Lalesh Sharma.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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