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  • Unreported Judgment

Peng v Nguyen

 

[2020] QCAT 19

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Peng v Nguyen [2020] QCAT 19

PARTIES:

KUN PENG substituted for Image property

(applicant)

 

v

 

NGUYEN Ngoc Thi

(respondent)

APPLICATION NO/S:

MCD1401/19

MATTER TYPE:

Residential tenancy matters

DELIVERED ON:

24 January 2020

HEARING DATE:

9 January 2020

HEARD AT:

Brisbane

DECISION OF:

Member Favell

ORDERS:

  1. The Residential Tenancies Authority pay to the applicant $1,500.00 from the bond of $1,500.00 held by it in respect of premises at 168 CastleGrove Avenue Fitzgibbon under bond number 70510327.
  2. The respondent pay to the applicant the sum of $868.36 by 4pm 17 February 2020.

CATCHWORDS:

LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS – RENT – where the tenant gave a notice of intention to leave and then vacated the premises – where claim made for lost rent and damage to the premises – whether claims proved and properly made

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 137
Queensland Civil and Administrative Tribunal Act 2009 (Qld)

APPEARANCES &

REPRESENTATION:

 

Applicant:

Fang Chen on behalf of Kun Peng

Respondent:

Self-represented

REASONS FOR DECISION

  1. [1]
    This application was heard on 9 January 2020.
  2. [2]
    Prior to the hearing, Fang Chen who was given leave to appear on behalf of the applicant sought an interpreter proficient in the Mandarin language. The tribunal arranged an appropriate translator and the hearing proceeded.
  3. [3]
    At the beginning of the hearing Ms Chen sought to substitute Kun Peng, the owner of the property for Image Property, the real estate agent which previously represented the owner. The parties agreed to that substitution because Mr Peng was the owner of the property and Image Property no longer wished to be associated with the application. Accordingly the substitution order was made.
  4. [4]
    Because of language difficulties the hearing proceeded slowly. Each side tended documents and photographs supporting their case and two additional witnesses were called.
  5. [5]
    By a residential tenancies agreement dated 13 June 2018 the parties agreed that the respondent would rent property at 168 CastleGrove Avenue Fitzgibbon (the premises) for a fixed term starting on 2 July 2018 and ending on 1 July 2019.
  6. [6]
    The rent agreed was $780.00 per fortnight.
  7. [7]
    The tenant had to pay for electricity, gas, phone and water.
  8. [8]
    The standard General Residential Tenancy terms applied.
  9. [9]
    The special terms required the house to be professionally cleaned, the carpets to be professionally cleaned and the air conditioning units fully serviced every 12 months at the cost of the tenant.
  10. [10]
    The special terms also required that any damage done to the house would it be “compensated at the cost of the tenant”.
  11. [11]
    The application was for a minor civil dispute-residential tenancy dispute. I was satisfied that the tribunal had jurisdiction to deal with the dispute.
  12. [12]
    The application was made pursuant to section 137 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).
  13. [13]
    It sought the Bond of $1,560.00 held by the Residential Tenancies Authority under bond number 705103273 together with $3,737.64 particularised as follows:
    1. (a)
      Letting fee – $385.00;
    2. (b)
      Advertising – $246.00;
    3. (c)
      Repairs – $89.50;
    4. (d)
      Rent until a new tenant takes possession – $2,228.57;
    5. (e)
      Rent decrease – $388.57.
  14. [14]
    The applicant has supported the claim made with photographs and invoices which were attached to the application.
  15. [15]
    The respondent gave evidence (Exhibit 5) that she had decided to break the tenancy agreement with three months remaining and gave six weeks’ notice on 5 March 2019. If that was correct, and I accept it is, that would make the vacation date 16 April 2019.
  16. [16]
    In fact, the vacation date was 15 April 2019 after the keys were handed back.
  17. [17]
    For the reasons set out in the Exhibit 5 the respondent believed that breaking the lease early and moving out was reasonable and straightforward.
  18. [18]
    The respondent contends that because the applicant could have allowed the subtenants to remain he has not mitigated his loss.
  19. [19]
    Further, she contends that the applicant delayed in finding a replacement tenant. The applicant had 6 weeks’ notice (Exhibit 5). There is no evidence that the premises could not be advertised in that period but the effectiveness of the advertising could be restrained by the lack of availability until after 15 April 2019.
  20. [20]
    The respondent was not given an entry condition report as required by the agreement.
  21. [21]
    She contends that all the damages claimed for were caused by previous tenants.
  22. [22]
    She produced photographs of some of damage which she claims existed prior to her moving into the premises. Her contentions in that regard were backed up by evidence given by two sub tenants called to give evidence.
  23. [23]
    I accept their evidence and the respondent’s contentions.
  24. [24]
    In that regard I have had regard to the nature of the claims, the photographic evidence from both parties, the lack of an entry condition report, the lack of the evidence of an exit condition report concerning the prior tenants and the evidence given by and on behalf of the respondent.
  25. [25]
    Apart from that portion of the claim accepted by the respondent (Exhibit 5), I do not accept the claim that the respondent is responsible for the damage claimed.
  26. [26]
    I do not accept the unsworn assertions of damage.
  27. [27]
    While a reletting fee was claimed, no basis in the agreement for that claim was particularised.
  28. [28]
    However, the respondent agrees to pay the advertising and reletting fees on a pro rata basis. Because three months remained on her tenancy, she agrees to pay 25% of those costs. Those claims amount to $631.00 and 25% is $157.75.
  29. [29]
    The respondent is liable to pay for the rent not paid over the life of the tenancy agreement less the rent recovered in that period by re-renting the premises.
  30. [30]
    The respondent contends that the house was relet on 25 May 2019 with 5 ½ weeks left until her agreement expired.
  31. [31]
    The respondent is liable to pay rent over the period from15 April to 25 May 2019, a period of approximately 40 days or 5.714 weeks at a rental of $390.00 per week namely $2,016.30.
  32. [32]
    I accept that contention which would mean that she is liable to pay for the lack of rent from 25 May to 1 July 2019, a period of approximately 5 weeks and 2 days – an amount of approximately $1,782.85 less the rent received over that time.
  33. [33]
    The respondent contends that fall in the rental price was $40.00 per week from 24 May 2019. The drop was from $390.00 to $350.00. I accept her contentions in this regard.
  34. [34]
    The loss of $40.00 per week until 1 July 2019 is approximately $5,715.00 for 43 days namely $194.31.
  35. [35]
    The respondent handed over the keys to the property on 14 April 2019 after she had vacated on 12 April 2019.
  36. [36]
    She arranged for the house to be commercially cleaned. On 17 April 2019 she was sent photos of what the agent required to be re-cleaned.
  37. [37]
    The property was re-cleaned on 17 May 2019.
  38. [38]
    I accept the respondent’s evidence that the house was sufficiently clean and was left in good condition, fair wear and tear accepted.
  39. [39]
    In Exhibit 5 the respondent deals with what is she refers to as shortcomings of the listing of the house after 15 April 2019.
  40. [40]
    I accept her evidence and submissions in that regard.
  41. [41]
    At the end of the hearing I adjourned for a decision so that I could read all of the material tendered and consider the matter further.
  42. [42]
    I accept the evidence of the respondent and her witnesses. I also accept her reasoning and submissions made.
  43. [43]
    For the reasons set out above I allow $2,368.36 of the claim.
  44. [44]
    The difference between that amount and the bond should be paid by the respondent to the applicant.

Orders

  1. [45]
    The orders are as follows:
  1. The Residential Tenancies Authority pay to the applicant $1,500.00 from the bond of $1,500.00 held by it in respect of premises at 168 CastleGrove Avenue Fitzgibbon under bond number 70510327.
  2. The respondent pay to the applicant the sum of $868.36 by 4pm 17 February 2020.

 

Close

Editorial Notes

  • Published Case Name:

    Peng v Nguyen

  • Shortened Case Name:

    Peng v Nguyen

  • MNC:

    [2020] QCAT 19

  • Court:

    QCAT

  • Judge(s):

    Member Favell

  • Date:

    24 Jan 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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