Tic Realty v Forbes
[2015] QCAT 13
•15 January 2015
| CITATION: | Tic Realty v Forbes [2015] QCAT 13 |
| PARTIES: | Tic Realty – Kellie Morgan (Applicant) |
| v | |
| Sherryn Forbes (Respondent) |
| APPLICATION NUMBER: | MCDT2608-14 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 15 January 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Adjudicator Bertelsen |
| DELIVERED ON: | 15 January 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondents reopening application is refused. |
| CATCHWORDS: | Termination order – basis for making order – notification of hearing factors relevant to termination hearing – intention to vacate premises – subsequent application confirming termination |
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
The applicant Tic Realty applied for a termination order in respect of Ms Forbes tenancy of premises 4/66 Lamington Avenue, Lutwyche. The application for termination was based on arrears of rent. On 20 November 2014 a termination order was made and a warrant issued. On 4 December 2014 the warrant was executed at the rental premises.
On 4 December 2014 Ms Forbes notified QCAT that she was not advised of the court hearing date and the time; that she wanted the matter reheard; that she was seeking compensation re a damaged lift; that she could not vacate the premises because her furniture was large and she could not get it out.
Ms Forbes was advised by the QCAT Registry the same day 4 December 2014 to file a Form 43 i.e. a reopening application.
Ms Forbes reopening application was filed on 17 December 2014. She reasserted she was not advised of the hearing date; that significant new evidence had arisen that was not reasonably available when the proceeding was heard ie estate agent failed to inform Tribunal on 20 November 2014 that the building lift was broken; that the non-use of the broken damaged lift caused her great anxiety and stress.
The reopening application also sought damages ‘because for 4 weeks I could not exit the building with my furniture as the lift was broken’.
The Tribunal called for submissions in respect of the reopening application by 7 January 2015.
In her submissions filed 7 January 2015 Ms Forbes states ‘I was supposed to move out of the unit building 29 October 2014’. She stated that due to storm damage to the unit building lifts she was unable to vacate the unit and take her furniture with her.
Ms Forbes went on to state ‘I respectfully request a reopening because I was not advised of the hearing. This is because the real estate agent did not pass on my new forwarding address to QCAT Tribunal’. The new forwarding address was not stated.
The applicant agent in its submissions also filed 7 January 2015 asserted that Ms Forbes was well aware of the hearing the agent having spoken to Ms Forbes one week prior to the hearing date about rent arrears and eviction procedure if rent was not paid up prior to the hearing date. The applicant agent attached to its submissions four photographs which it asserted indicated there was space for Ms Forbes to move her furniture in and out of the building.
On 6 January 2015 Ms Forbes filed a Form 2 minor residential tenancy dispute application. This application seeks full bond refund as well as $5,000 on account of inoperable lifts. This application appears to have been consequent upon a notice of unresolved dispute issued by the RTA dated 19 December 2014.
The Tribunal is satisfied based on the applicant agents submissions that Ms Forbes was more than likely aware of the 20 November 2014 hearing date for the termination application. It seems that Ms Forbes was according to her assertions precluded from moving in a timely fashion because lifts were inoperable. Whether or not lifts were inoperable was never in any event relevant to the termination application which was based entirely on arrears of rent. Inoperable lifts may well be relevant to Ms Forbes application filed 6 January 2015. That application as indicated seeks a refund of the bond as well as $5,000 compensation on account of inoperable lifts.
There is no basis here to reopen the termination application. Ms Forbes application for compensation filed 6 January 2015 may proceed as the second leg on this existing filed MCDT2608-14.
The respondents reopening application is refused.
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