Shedden v Brisbane Property Market Pty Ltd
[2014] QCAT 505
•16 October 2014
| CITATION: | Shedden v Brisbane Property Market Pty Ltd [2014] QCAT 505 |
| PARTIES: | James Shedden (Applicant) |
| v | |
| Brisbane Property Market Pty Ltd (Respondent) |
| APPLICATION NUMBER: | MCDO58-14 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 22 August 2014 |
| HEARD AT: | Pine Rivers |
| DECISION OF: | Adjudicator Bertelsen |
| DELIVERED ON: | 16 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is dismissed. |
| CATCHWORDS: | Entry condition report – agent obligations – loss at expiration of tenancy – relevance of entry condition report at expiration |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | James Shedden |
| RESPONDENT: | Stephanie Blundell, property manager |
REASONS FOR DECISION
Application
By application filed 22 April 2014 James Shedden (‘Mr Shedden’) seeks the sum of $2,177.80 based on the respondents Brisbane Property Market Pty Ltd (‘Brisbane Property Market’) failure to provide an entry condition report for 8 Friars Crescent, North Lakes while acting as the property manager in respect of the tenancy of that premises.
Background
The tenants Ms Bowman and Mr Masci were evicted leaving damage and accrued loss of rent. Previously Pine Rivers claim QCAT 09/14 was lodged by Mr Shedden against tenants Ms Bowman and Mr Masci. The determination of that application on 14 March 2014 according to Mr Shedden:
Reflected as follows: Because no entry condition report could be provided the adjudicator was unable to make a decision for damages payments as he could not verify the condition of the property at the start of the lease. He advised that the property managers did not do their job properly and that they should be held responsible for the situation and any losses to the owner.
Pine Rivers Application 09/14 – Shedden v Bowman & Masci
The record of the hearing on 14 March 2014 indicates that an entry condition report was forwarded to the tenants Ms Bowman and Mr Masci at the time of their entry into possession of the premises on or about the 19 October 2012. The entry condition report having been given to those prospective tenants at the time such entry condition report was never returned to Brisbane Property Market.
In that application Mr Shedden sought reimbursement for repairs, cleaning damage and arrears of rent consequent upon the vacating of the premises on 18 October 2013 by Ms Bowman and Mr Masci.
Brisbane Property Market was the managing agent in respect of the premises 8 Friars Crescent, North Lakes for the entirety of the general tenancy agreement term being 19 October 2012 through 18 October 2013. A bond of $1,580 was held by the RTA.
Some references were made during the course of that proceeding to a situation that might arise where an owner might be in a position to have recourse against a managing agent not doing its job properly. At hearing the Adjudicator did not have before him an entry condition report and had only one page of an exit condition report. Invoices for those items claimed were produced. According to the record Mr Shedden became the registered owner of the subject premises in or about August 2013.
In the event the Adjudicator found some rent to be owing in the sum of $1,241.40 water invoices owing $165.90 (not really contested) and $485 on account of cleaning carpet and pest, a total of $1,892.30. The Adjudicator then deducted the bond of $1,580 leaving $312.30 payable by the former tenants Ms Bowman and Mr Masci. A reduced application fee was allowed at $22 a total of $334.30.
The order on the day was that the respondents, Ms Bowman and Mr Masci pay to the applicant the sum of $334.30 as full compensation within 21 days.
The Current Application
Mr Shedden asserted that the Adjudicator at the prior hearing on 14 March 2014 stated that Brisbane Property Market ‘should be held responsible for the situation and any losses to the owner’. The record does not reveal that to be the case. At best the record discloses that a passing comment was made to the effect that in some cases previously dealt with by the Adjudicator it transpired that an owner sought recompense against an agent for negligence. Even if passing comments could be construed as a definite statement that the agent ought be held responsible for losses on the part of Mr Shedden it was the case that Brisbane Property Market was not a party to that application in any event.
The current application came before the Tribunal firstly on 20 June 2014 when it was ordered, inter alia, the applicant file with the Tribunal a table detailing his claim. The table was to be set out in columns for the amount claimed, reason for claim and date and description of supporting documents.
On 21 July 2014 Mr Shedden filed the table ordered to be furnished. Mr Shedden claimed five weeks loss of rent for the period 26 September 2013 through 1 November 2013 (the relet date). Then various other claims were made being bond clean, various repairs, plumbing, replacement of garage remotes, repairs to garage, restore garden and carpet clean restore together with QCAT fees searches and interest, an increased total of $2,735.47.
Conclusions
Pursuant to s 65 of the Residential Tenancies and Rooming Accommodation Act 2008 (‘RTA Act’) an agent must at the time a tenant occupies premises under an agreement (which was the case here) prepare a condition report for the premises and any inclusions, sign the report and give a copy of the report to the tenant. According to Brisbane Property Market that did take place. An entry condition report was furnished to the tenants Ms Bowman and Mr Masci at the time in October 2012. The tenants did not return the entry condition report. The entry condition report since furnished to the Tribunal is not signed by either the agent or the tenants. Therefore it appears the agent may have contravened s 65 of the RTA Act by not furnishing a signed report to the tenants Ms Bowman and Mr Masci in October 2012. Brisbane Property Market may not have fully complied with s 65 of the RTA Act and may be subject to a regulatory penalty of up to 20 penalty units. In reality it did not make any difference in this particular situation because the tenants Ms Bowman and Mr Masci did not return the entry condition report as they should have. Nobody can force a tenant to sign an entry condition report. That is simply not provided for in the RTA Act. What is provided for is that if a tenant does not return a signed copy of an entry condition report then the agent is required to keep for at least one year after the general tenancy agreement ends a copy of the report. That appears to have been done here.
In his material Mr Shedden includes an email dated 21 January 2014 wherein it is stated by Brisbane Property Market that because it was in the middle of relocating its office from Coolangatta to Brisbane that all physical files were packed away and in transit. Brisbane Property Market was not able to ‘even search the hardcopy for you. My apologies’. Since that time the unsigned copy of the entry condition report has been produced.
It may well be construed that Brisbane Property Market has committed a regulatory offence. However the issues raised by Mr Shedden were correctly traversed at the hearing of 14 March 2014. Mr Shedden had ample opportunity to put all post tenancy claims to the Tribunal at that time. The fact that he may not have done so is to his detriment.
The list of complaints in the current application now totals $2,735.47 made up firstly of loss of rent at $1,975. It is clear from the record of the hearing on 14 March 2014 that the rent claim was fully adjudicated on that occasion, irrespective of any assertions regarding the conduct of the managing agent. Mr Shedden cannot re-agitate the rent claim already determined.
As well fresh claim items have appeared in the current application particularly plumbing and repairs to garage. The plumbing invoice claimed for at $163.35 was in respect of an alleged leak which in all probability was not a leak but caused by the tenants child. Either way any claim would be against the former tenants not the agent. Repairs to garage claimed for at $220 may have been referrable to damage caused by trade persons engaged by the agent. That damage appears to have been settled more than likely between the trades person and Mr Shedden. Application 9/14 claimed $2,662.92 after application of the bond of $1,580 towards various repairs and damage. The current application seeks an increased sum of $2,735.47 after application of the bond to repairs and damage and after the monetary decision of $312.30 in favour of Mr Shedden.
It is not open to Mr Shedden to now pursue Brisbane Property Market with a view to topping up those claims that were considered but not included in the monetary order made on 14 March 2014. Nor is it open to Mr Shedden to increase his claim against the Brisbane Property Market where such claims have not firstly been made against the former tenants Ms Bowman and Mr Masci.
Additionally, the simple fact that an entry condition report was not completed by the tenants at the time of commencement of the tenancy, of itself, falls far short of sufficiency of evidence to conclude that Brisbane Property Market in this instance ought to bear responsibility for loss and damage that may have been caused by the tenants Ms Bowman and Mr Masci and apparent at the conclusion of the tenancy.
Finally Mr Shedden was not the owner at the commencement of the tenancy. He became owner in about August 2013. There was no evidence to establish the state of arrangements between Brisbane Property Market and the prior owner or whether such arrangements continued or were varied.
There is no basis for holding Brisbane Property Market liable for Mr Shedden’s loss. The application is dismissed.
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