Swan v Stenholm

[2011] QCAT 412

CITATION: Swan v Stenholm [2011] QCAT 412

PARTIES:	Mr Murray Swan (Applicant/Appellant)
v
Miss Belinda Leigh Stenholm (Respondent)

APPLICATION NUMBER:   MCDT1025-11

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: 16 June 2011

HEARD AT: Brisbane

DECISION OF: Kate Buxton, Adjudicator

DELIVERED ON: 29 July 2011

DELIVERED AT: Brisbane

ORDERS MADE:      [1]     The Respondent pay to the Applicant the sum of $180 in final compensation by 29 July 2011.

CATCHWORDS: 

Residential tenancy – rent arrears – evidence

Residential Tenancies and Rooming Accommodation Act 2008, s 88

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Murray Swan in person
RESPONDENT:	Miss Belinda Leigh Stenholm by telephone

REASONS FOR DECISION

1. The Applicant's claim for $4,800 in unpaid rent and $180 in cleaning costs was heard by QCAT on 16 June 2011.

1. The Respondent did not appear in person but the tribunal was able to contact her by telephone during the hearing.  She conceded that some rent was owing at the end of her tenancy but did not agree with the amount claimed by the Applicant.

1. The Applicant’s material at the hearing was inadequate to prove the rent element of the claim.  He was given an opportunity to file an affidavit containing a full explanation of the calculation of the rent arrears and annexing:

   (a)  the rental ledger;

   (b)  bank statements;

   (c)  any other relevant material.

1. The statutory declaration filed 22 June 2011 has no annexures.  It does not take matters any further than the oral evidence produced at the hearing.  It is not enough simply to assert a fact when documents which would support that fact are or ought to be available but are not produced.  I can only conclude from the failure by the Applicant to produce any supporting documentation whatsoever that either relevant records do not exist, or that they do not assist the Applicant's case.

1. No explanation is made as to why the bank statements referred to in the statutory declaration are not annexed. The Applicant has not even produced any receipts. He is obliged under s 88 of the Residential Tenancies and Rooming Accommodation Act 2008 to maintain proper records of all payments received, whether in cash or otherwise, including stipulating the period for which the payment of rent is made.  These obligations exist to ensure that lessors and tenants do not find themselves in precisely this situation, and so it is clear to all what is owing and what has been paid.

1. The Respondent tenant indicated that she thought that she was about half a month behind in rent when she left.  She has also agreed to allow the applicant to retain her bond of $660 which is more than half a month's rent ($960 per month by the time the agreement ended) but not vastly inconsistent with the Respondent’s recollection.  I will allow the Applicant to retain this on account of rent, but I cannot be satisfied based on the material that any other rent is outstanding.  The Applicant has failed to produce further credible evidence in support of his claim, despite having been given an opportunity to do so.

1. I will allow the claim for cleaning which is supported by an invoice.  This is the only amount which the Applicant has proved over and above the bond which he has already received.

Order

1. The Respondent pay to the Applicant the sum of $180 in final compensation by 29 July 2011.