Smolcic v Ray White Rockhampton - [2021] QCATA 136

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Smolcic v Ray White Rockhampton [2021] QCATA 136

PARTIES: MANDA SMOLCIC and DANNY GUALTIERI

(applicants/appellants)

v

RAY WHITE ROCKHAMPTON

(respondent)

APPLICATION NO/S:

APL026-20

ORIGINATING APPLICATION NO/S:

MCDT172-19

MATTER TYPE:

Appeals

DELIVERED ON:

18 November 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

1.       Leave to appeal from the decision of the Tribunal at Rockhampton on 11 December 2019.

2.       Appeal allowed.

3.       Decision of the Tribunal set aside.

4.       Order that the respondent pay to the appellants the sum of $2,469.00 within 21 days.

CATCHWORDS:

LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – RENTAL BONDS OR SECURITY DEPOSITS – dispute over repayment of bond held by Residential Tenancy Authority – earlier proceedings in the Tribunal between the parties about the tenancy – whether the decision in the earlier proceeding meant that the bond was to the paid to the lessor – appeal allowed

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 137

Campbell v Queensland Building and Construction Commission [2021] QCATA 34
Crime and Corruption Commission v Lee [2019] QCATA 38
Li v Heading [2021] QCATA 107
Property Indulgence v Allen [2020] QCATA 66
Stone v Grundy [2018] QCATA 68
White v Tomasel [2004] 2 Qd R 438

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

The appellants were formerly tenants of residential premises of which the respondent was the agent of the lessor.[1] On 10 July 2019 they filed in the Tribunal at Rockhampton an application for minor civil dispute – residential tenancy dispute claiming the return of a rental bond of $2,000 paid in respect of the tenancy. On 11 December 2019 the matter came on for hearing before a Member who ordered that the bond be paid to the agent. The tenants have sought leave to appeal from that decision.
[1]It is convenient to refer to the appellants as “the tenants” and to the respondent as “the agent”.
The tenancy was subject to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“the Act”). The Act regulates rental bonds,[2] requiring them to be paid to the Residential Tenancy Authority (“RTA”) and providing that, if there is a dispute about them, the Tribunal has power to make an order to resolve that dispute.[3] That was the power invoked by the tenants in the present matter.
[2]In Part 3 of Chapter 2.
[3]This follows by implication from the Act s 137, which contemplates an order of the Tribunal as to the payment of a rental bond, as the ultimate means of resolving a dispute about the entitlement to the bond. If the application is not otherwise covered by the Act, it can be made under s 429. See Stone v Grundy [2018] QCATA 68 at [48]; Li v Heading

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 Smolcic v Ray White Rockhampton

Details

AGLC: Smolcic v Ray White Rockhampton [2021] QCATA 136
Case: [2021] QCATA 136
Decision Date: 18 November 2021

CaseChat Overview and Summary

The appeal in Smolcic v Ray White Rockhampton involves the appellants, Mr and Mrs Smolcic, and the respondent, Ray White Rockhampton. The dispute centres around the repayment of a rental bond held by the Residential Tenancy Authority (RTA). The matter was originally heard in the Tribunal, which had ruled in favour of the respondent. The appellants have now appealed to the court, arguing that the Tribunal’s decision was incorrect. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with resolving whether the bond should be paid to the lessor or the lessor's agent, as per the Tribunal's decision. The appellants contended that the bond should be paid to them, as they were the lessors, rather than to the respondent, who was the agent of the lessors.

The primary legal issue before the court was whether the decision made by the Tribunal in the earlier proceeding meant that the rental bond was to be paid to the respondent, Ray White Rockhampton, or to the appellants, Mr and Mrs Smolcic. The appellants argued that the decision of the Tribunal should be set aside because it failed to correctly interpret the Residential Tenancies Act 1999 (Qld). The appellants submitted that the bond should have been paid to them as the lessors, rather than to the respondent as the agent of the lessors. The respondent maintained that the Tribunal’s decision was correct and that the bond should be paid to them as the agent of the lessors.

The court found that the Tribunal had erred in its interpretation of the Residential Tenancies Act 1999 (Qld). The court held that the bond was to be paid to the appellants, as they were the lessors, and not to the respondent, who was merely the agent of the lessors. The court set aside the decision of the Tribunal and allowed the appeal. The court ordered that the respondent pay the sum of $2,469.00 to the appellants within 21 days. This decision clarifies the obligations of agents in relation to rental bonds and reinforces the rights of lessors in such matters.

Orders

Orders of the court

1. Leave to appeal from the decision of the Tribunal at Rockhampton on 11 December 2019.

2. Appeal allowed.

3. Decision of the Tribunal set aside.

4. Order that the respondent pay to the appellants the sum of $2,469.00 within 21 days.

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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CITATION:	Smolcic v Ray White Rockhampton [2021] QCATA 136
PARTIES:	MANDA SMOLCIC and DANNY GUALTIERI
(applicants/appellants)
v
RAY WHITE ROCKHAMPTON
(respondent)
APPLICATION NO/S:	APL026-20
ORIGINATING APPLICATION NO/S:	MCDT172-19
MATTER TYPE:	Appeals
DELIVERED ON:	18 November 2021
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Judicial Member D J McGill SC
ORDERS:	1. Leave to appeal from the decision of the Tribunal at Rockhampton on 11 December 2019. 2. Appeal allowed. 3. Decision of the Tribunal set aside. 4. Order that the respondent pay to the appellants the sum of $2,469.00 within 21 days.
CATCHWORDS:	LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – RENTAL BONDS OR SECURITY DEPOSITS – dispute over repayment of bond held by Residential Tenancy Authority – earlier proceedings in the Tribunal between the parties about the tenancy – whether the decision in the earlier proceeding meant that the bond was to the paid to the lessor – appeal allowed Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 137 Campbell v Queensland Building and Construction Commission [2021] QCATA 34 Crime and Corruption Commission v Lee [2019] QCATA 38 Li v Heading [2021] QCATA 107 Property Indulgence v Allen [2020] QCATA 66 Stone v Grundy [2018] QCATA 68 White v Tomasel [2004] 2 Qd R 438
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)