Thomson v South East Property Group Pty Ltd t/as Ray White Coorparoo
[2014] QCAT 18
•14 January 2014
| CITATION: | Thomson v South East Property Group Pty Ltd t/as Ray White Coorparoo [2014] QCAT 18 |
| PARTIES: | Timothy Thomson Nicole Smith (Applicants) |
| v | |
| South East Property Group Pty Ltd t/as Ray White Coorparoo (Respondent) |
| APPLICATION NUMBER: | MCDT217/13 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 2 December 2013 |
| HEARD AT: | Holland Park |
| DECISION OF: | Adjudicator Bertelsen |
| DELIVERED ON: | 14 January 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondent pay to the applicants the sum of $3,161.40. |
| CATCHWORDS: | Application for tenancy agreement – provision of prospective tenancy agreement – whether any actual tenancy agreement in existence – entitlement to refund of rent and bond paid prospectively Residential Tenancies and Rooming Accommodation Act 2008 ss 58, 61, 159, 160 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Timothy Thomson & Nicole Smith |
| RESPONDENT: | South East Property Group Pty Ltd t/as Ray White Coorparoo represented by Juanita Tarr & Rachel Cooper, Property Managers |
REASONS FOR DECISION
By application filed 18 October 2013 the applicants Timothy Thomson and Nicole Smith seek the sum of $3,060.00 being 2 weeks rent of $1,020.00 and rental bond of $2,040.00 prospectively paid by them to the respondent Ray White Coorparoo (Ray White) in respect of the prospective rental of premises 1/25 Miriam Street, Holland Park.
Ray White in material handed up at hearing seeks retention of rent monies and bond asserting the existence of a tenancy agreement, the breaching of that tenancy agreement with consequential additional loss of rent at $2,040.00.
Background and evidence
On 1 September 2013 Mr Thomson and Ms Smith signed a completed tenancy application form with Ray White. On 2 September 2013 it was submitted to Ray White. On 3 September 2013 Ray White advised Mr Thomson and Ms Smith that their application had been approved. They were required to pay ‘a deposit of 2 weeks rent and 4 weeks bond’ to secure the premises. On 4 September 2013 Mr Thomson and Ms Smith paid the sum of $3,060.00 being 2 weeks rent and bond to Ray White. Prospectively any tenancy agreement was to commence on 21 September 2013 as a 6 month fixed term.
On 8 September 2013 Mr Thomson emailed Ray White pointing out that ‘this property is well above market price for rent. I notice that 3/25 is listed for $440 per week and 5/25 identical to unit 1 rented for $460 in March of this year. We are happy to negotiate a reasonable rent in line with the market. Please call me to discuss’.
Ray White’s response of 10 September 2013 was to offer a reduction in rent from $510 per week to $505 per week ‘for a 6 month lease’. On 11 September 2013 Mr Thomson replied ‘unfortunately we are no longer in a position to enter into this lease. Please refund the full security deposit amount of $3,060.00 as soon as possible’ thereafter nominating a bank account.
On 12 September 2013 Ray White emailed Mr Thomson advising
that this will be treated as a break lease situation. We had stopped marketing the property, advertising and open for inspections had ceased when you had agreed to take the property on 3 September … There was a verbal acceptance from yourself on 3 September 2013 at 11:00am and I had recorded the verbal acceptance on the Ray White approval checklist. Please note that your acceptance of the property via payment of the bond and first 2 weeks rent is therefore an agreement as such. The terms of the lease were emailed to you and the copy of the final tenancy agreement noting special conditions was attached.
On 12 September 2013 Mr Thomson replied asserting a break lease view of matters was inconsistent with the Residential Tenancies and Rooming Accommodation Act 2008 (the Act) quoting (perhaps inadvertently or mistakenly it would appear) s 61(6b) of the Act.
Section 58 states, in terms of this prospective tenancy, that Ray White was required to give to Mr Thomson and Ms Smith a s 61 compliant written tenancy agreement before, pursuant to s 58 of the Act:
(a)accepting a document from the prospective tenant that commits the tenant –
(i)to enter into the tenancy; or
(ii)to pay an amount in relation to the tenancy;
(b)accepting an amount in relation to the tenancy;
(c)entering into a residential tenancy agreement for the tenancy.
Mr Thomson further asserted s 160(1) which states that ‘a person receiving a holding deposit must give a receipt for the deposit as required by this section’.
He further asserted the applicability of s 159(3) of the Act which states
in this section
option period, for an option created by the payment of a holding deposit, means –
(a)the period stated in the receipt for the payment as the period in which the option may be exercised; or
(b)if a period is not stated – the period ending 48 hours after the receipt is given.
Mr Thomson asserted that no receipt had been issued; that therefore the option period had neither commenced nor expired and that therefore Ray White had no legal right to withhold the security deposit for the bond contribution amount.
Ray White produced at hearing a copy of a trust account receipt dated 5 September 2013 recording the rent of $1,020.00 being paid for a period ending 4 October 2013 i.e. applying the sum paid prospectively on account of rent to future rent for the period 21 September 2013 through 4 October 2013 a period of 14 days.
Ray White in its email of 13 September 2013 to Mr Thomson stated that monies paid by Mr Thomson and Ms Smith were not in the nature of a holding deposit but in fact were 2 weeks rent and 4 weeks bond. That email further asserted that Mr Thomson had accepted rent at $505.00 per week in telephone conversations of 10 September 2013; that the differences in the townhouses and prices were discussed. The email then referred to ‘open for inspections’ being forgone and the losses accruing to the owner.
Conclusions
Clearly it was the intention that a written general tenancy agreement be entered into between the parties. Sections 58 and 61 of the Act provide for a 2 step process. Firstly pursuant to s 61 the lessors agent, in this case Ray White, must ensure that any tenancy agreement is in writing and otherwise compliant with that section. The submitting of a general tenancy agreement with Ray White’s email of 3 September 2013 is not only s 61 compliant but satisfied s 58(1) to the extent that ‘the lessors agent must give a prospective tenant for a residential tenancy the document prepared for section 61’. Having done that Ray White was then in a position pursuant to s 58(1)(a) of
(a)accepting a document from the prospective tenant that commits the tenant –
(i)to enter into the tenancy; or
(ii)to pay an amount in relation to the tenancy;
(b)accepting an amount in relation to the tenancy;
(c)entering into a residential tenancy agreement for the tenancy.
Here, no document was ever received from Mr Thomson or Ms Smith that committed them to enter into the tenancy or to pay an amount in relation to the tenancy; nor did Mr Thomson and Ms Smith ever enter into a residential tenancy agreement for the tenancy. An amount equivalent to prospectively 2 weeks rent and the bond was paid at the very outset on 4 September 2013 in response to Ray White’s email of 3 September 2013 stating ‘we will need to receive a deposit … within 24 hours’. Whilst that may be accepting an amount in relation to a tenancy it does not of itself establish an enforceable written tenancy agreement contemplated by s 58 and s 61 which obviously by their very language are to be read together.
It was suggested that s 12 of the Act which provides that a residential tenancy agreement ‘is an agreement under which a person gives to someone else a right to occupy residential premises as a resident’ applied and that any such residential tenancy agreement may be wholly in writing, wholly oral or wholly implied. It was asserted in terms of this section that there was in fact a residential tenancy agreement. However that section may well apply to other situations or in another context. Obviously here the sections of the Act to be applied are s 58 and s 61. There was here an intention (and it is obvious from the email trail) that in due course a general tenancy agreement fully signed and dated was to apply. No such agreement ever came into existence. The second step contemplated particularly by s 58 of the Act never came into existence. Clearly the sum of $3,060.00 paid on 4 September 2013 could only ever be characterised as a holding deposit pending the entering into of a general tenancy agreement on terms and conditions acceptable to both parties. If Ray White proceeded on the assumption that this tenancy was signed, sealed and delivered, when it was not, then that was done at its own risk.
Mr Thomson and Ms Smith are entitled to a refund of monies paid by them in respect of this prospective tenancy which fell well short of any signed enforceable general tenancy agreement. Mr Thomson and Ms Smith are entitled to be refunded the sum of $3,060.00 together with the application fee of $101.40, a total of $3,161.40.
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