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  • Unreported Judgment

Jamie William Byrne v I-Sale Property Pty Ltd

 

[2019] QCAT 405

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Jamie William Byrne & Sophie Claire Doyle v I-Sale Property Pty Ltd [2019] QCAT 405

PARTIES:

JAMIE WILLIAM BYRNE & SOPHIE CLAIRE DOYLE

(applicant)

v

I-SALE PROPERTY PTY LTD

(respondent)

APPLICATION NO/S:

MCDT159/19

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

5 December 2019

HEARING DATE:

13 September 2019

HEARD AT:

Brisbane

DECISION OF:

Member Garner

ORDERS:

  1. Jamie William Byrne and Sophie Claire Doyle pay I-Sale Property Pty Ltd within 14 days of the date of this order:
    1. (a)
      $1,060.57 for rent arrears, comprising:
      1. $4,308.57 for rent arrears;
      2. Less a discount of $3,248.00 for damages;
    2. (b)
      $248.20 for invoice arrears;
    3. (c)
      $1,520.00 for damages to reinstate the property to a reasonable condition, comprising:
      1. $1,100.00 for cleaning and gardening;
      2. $320.00 for changing locks; and
      3. $100.00 for missing sound system.
  2. The rental bond of $2,320.00 shall be released to I-Sale Property Pty Ltd forthwith in part payment of that amount.

CATCHWORDS:

MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY MATTER – bond dispute – application by tenant for rental rebate – counter-application by lessor for rent arrears, cleaning, repair etc

Civil and Administrative Tribunal Act 2009 (Qld)

Residential Tenancies and Rooming Accommodation Act 2008 (Qld)

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

T Chen and Y Gamage

REASONS FOR DECISION

Background

  1. [1]
    By way of background, it is not in dispute, and I accept, that:
    1. (a)
      Pursuant to a tenancy agreement dated 27 July 2017, the Mr Jamie William Byrne and Ms Sophie Claire Doyle (collectively ‘the Tenants’) were tenants of a residential property at 30 Ridgeview Street Carindale (‘the Property’) for rent of $580 per week and for a fixed term to expire on 4 August 2018;
    2. (b)
      The rental was managed by I-Sale Property Pty Ltd (‘the Manager’);
    3. (c)
      Rental bond of $2,320 was paid by the Tenants and is currently held by the Rental Bond Authority in respect of the tenancy;
    4. (d)
      On 26 July 2017 the Tenants took possession of the Property;
    5. (e)
      On 29 July 2017, the Property was cleaned by the Manager;
    6. (f)
      On 6 August 2017, the tenancy formally commenced as stated in the tenancy agreement and advised by text message from the Manager to Ms Doyle (page 97, Annexure 1 to Doyle affidavit), although the Tenants had taken earlier possession of the Property;
    7. (g)
      On 13 April 2018, the Tenants issued a Form 11 Notice to Remedy Breach in relation to maintenance issues;
    8. (h)
      On 4 August 2018, the tenancy agreement lapsed into a periodic tenancy after expiration of the nominal term;
    9. (i)
      From 26 October 2018, rent ceased to be paid by the Tenants;
    10. (j)
      On 19 November 2018, the Tenants issued a Notice of Intention to Leave advising of an intended vacation date of 3 December 2018;
    11. (k)
      On 3 December 2018, the Tenants failed to return the keys or confirm vacation of the Property;
    12. (l)
      On 5 December 2018, Mr Byrne emailed the Manager and advised they would be returning the keys ‘in the very near future’;
    13. (m)
      On 14 December 2018, the Manager issued a Form 11 Notice to Remedy Breach in relation to rental arrears;
    14. (n)
      On 14 December 2018 (Friday), Ms Doyle express posted a single key to the Manager;
    15. (o)
      On 17 December 2018 (Monday), the Manager would have received the key;
    16. (p)
      On 18 December 2018, the Exit Report completed by the Manager noted issues with the state of the Property upon vacation by the Tenant;
    17. (q)
      On 23 January 2019, the Tenants filed the Application in the Tribunal; and
    18. (r)
      On 17 July 2019, the Manager filed the Counter-Application in the Tribunal.

The application and counter-application

  1. [2]
    By way of an Application filed on 23 January 2019, the Tenants claim:
    1. (a)
      payment of the total sum of $9,512.00 which comprises:
      1. $7,192.00 for compensation for rental rebate;
      2. $2,320.00 for refund of rental bond;
    2. (b)
      the respondent not be allowed to place them on any tenancy database; and
    3. (c)
      any application/counter-application by the respondent is dismissed.
  2. [3]
    By way of a Counter-Application filed on 19 July 2019, the Manager claims:
    1. (a)
      payment of the total sum of $7,669.63 which comprises:
    2. (b)
      $4,501.43 for rent arrears;
    3. (c)
      $248.20 for invoice arrears, which comprises:
      1. $39.44 for water consumption, invoiced on 16 August 2018;
      2. $125.22 for water consumption, invoiced on 15 January 2019;
    4. (d)
      $1,420.00 for damages to reinstate the property to a reasonable condition, being:
      1. $550.00 for cleaning (the Counter Application states $500 but the invoice provided is for $550 and that is the amount that is used to calculate the total damages claimed in the Counter Application);
      2. $550.00 for gardening;
      3. $320.00 for locksmith changing the lock;
      4. $1,500.00 damages for lost sound system; and
    5. (e)
      release of the rental bond to the Manager to cover a portion of the total amount.

Jurisdiction to hear and determine the application

  1. [4]
    Pursuant to sections 11, 12(1) and 12(4)(e) of the Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal has power to hear and decide a minor civil dispute in respect of a tenancy matter upon an application being made under section 429 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘the RTRA’).
  2. [5]
    I am satisfied that the Tribunal has jurisdiction to hear and determine this matter pursuant to those provisions, on the basis that I am satisfied that there is a dispute between the parties about the tenancy agreement and they have made application to the Tribunal to resolve the dispute.

The evidence

  1. [6]
    Ms Gamage presented in a straightforward manner and her evidence was generally consistent.
  2. [7]
    By contrast, there were some inconsistencies and anomalies in the evidence of Mr Byrne and Ms Doyle.
  3. [8]
    For example, Mr Byrne said in oral evidence that he did not read the Special Terms of the Tenancy Agreement and he relied upon an oral representation of the Manager that garden maintenance was included in the rent. However Mr Byrne’s signature is on the same page as the Special Terms. As a lawyer, I find it unlikely that he would not read special terms when he signs the same page. It is also inconsistent with the statement at paragraph 7 of Ms Doyle’s affidavit that on 26 July 2017, Mr Byrne and Ms Doyle ‘were informed (as noted on the Lease documents) that garden maintenance was not in fact included in the rent price’.
  4. [9]
    Similarly, Ms Doyle said in oral evidence that the sound system never worked but she never complained about it. There is no independent evidence that the sound system did not work. The Entry Condition Report completed by the Tenant has not been provided by any party. There is no record of any complaint or note made to that effect that it did not work. Given the Tenants’ propensity to document and complain about things on the Property that did not work satisfactorily, I find it unlikely that the Tenants would not have similarly recorded a complaint in relation to the sound system if it did not work.
  5. [10]
    For those reasons, to the extent of inconsistency and in the absence of other corroborative evidence, I prefer the evidence of Ms Gamage.

The manager’s counter-application

  1. [11]
    I will deal separately with each part of the counter-application.

Manager’s claim of $4,501.43 for rent arrears

  1. [12]
    The Manager claims rental arrears in the sum of $4,501.43, being rent of $580 per week for the period from 26 October 2018 to 19 December 2018. (Although the counter-application refers to rent arrears for the period from 21 October, in oral evidence Ms Gamage admitted rent was paid up to 26 October 2019 but said that the total rent arears claimed was the same.)
  2. [13]
    In oral evidence, the Tenants admitted that rent was unpaid from 26 October 2018 but maintain that they vacated the Property sooner than 19 December 2018 and accordingly should not be charged rent for the entire period.
  3. [14]
    As there is now no dispute that rent was unpaid from 26 October 2018, the critical question in determining the rental arrears outstanding is when did the Tenants vacate the Property?
  4. [15]
    Ms Doyle said that she and Mr Byrne ‘continued to lease the Property until 3 December 2018, so cleaning could be completed’ (paragraph 3 Doyle affidavit) and that a bond clean was completed on the property on 3 December 2018 (paragraph 72 Doyle affidavit). Ms Doyle said that, following a break-in and theft at the Property on 3 December 2018, she express posted a single Property key to the Manager on 14 December 2018 as Ms Gamage ‘refused to deal with the Police and therefore we were required to attend the Property with Police for their investigation’ (paragraph 78 Doyle affidavit). Ms Doyle said in oral evidence that she dealt with the Police because Ms Gamage was hospitalised at the time and she had no faith that Ms Gamage could attend to that. Ms Doyle said that she returned only one key to the Manager by express post sent on 14 December 2018 and left the remaining keys in a drawer at the Property.
  5. [16]
    Ms Gamage said that she was expecting return of the Property keys on 3 December 2018 in accordance with the Tenants’ Notice of Intention to Leave given on 19 November 2018. Ms Gamage sent an email to the Tenants at 1.17pm on 4 December 2018 noting that the keys had not been returned and rent arrears had not been settled, asking when the keys would be returned and requesting the Tenants to ‘drop the keys to our office if you have already vacate the property’. Ms Gamage said that she was not hospitalised until 5 December 2018 and could have dealt with the Police them in any event. I accept that Ms Gamage could have dealt with the Police if the keys had been returned to her on 3 December 2018.
  6. [17]
    I note that by email sent on 5 December 2018, Mr Byrne advised Ms Gamage that ‘No, we’re not settling arrears. We will attend to returning keys in the very near future. However, that return will now be delayed; the house was robbed this evening, and we have reported the theft and the cleaners in attendance to the police’. This seems to indicate an intention not to vacate the Property at that time.
  7. [18]
    On the basis of the evidence, I find that:
    1. (a)
      the Tenants returned a key to the Manager by express post sent on Friday 14 December 2018, which would have been received by the Manager on the next working day, Monday 17 December 2018;
    2. (b)
      the Tenants vacated the Property on Monday 17 December 2018 when the key was received by the Manager;
    3. (c)
      it was not necessary for the Tenants to retain the keys as the Manager could have dealt with Police in relation to the break-in and theft if the keys had been returned to them on or before 3 December 2018; and
    4. (d)
      the Tenants’ Notice of Intention to leave given on 19 November 2018 was not effective because the Tenants did not vacate the Property on or before 3 December 2018.
  8. [19]
    In the circumstances, I do not accept that the Tenants vacated the Property prior to return of the keys to the Manager on 17 December 2018.
  9. [20]
    On that basis, rent arrears should be payable at $580 per week for the period from 26 October 2018 to 17 December 2018, which is a period of 52 days.
  10. [21]
    I calculate the rent arrears for that period to be $4,308.57.

Manager’s claim of $248.20 for invoice arrears

  1. [22]
    The Manager claims $248.20 for invoice arrears, comprising:
    1. (a)
      $39.44 for water consumption for the period from 9 April to 15 May 2018, invoiced on 16 August 2018;
    2. (b)
      $83.54 for water consumption for the period from 14 May to 15 August 2018, invoiced on 26 October 2018; and
    3. (c)
      $125.22 for water consumption for the period from 16 August to 12 November 2018, invoiced on 15 January 2019.
  2. [23]
    The Tenants accept their obligation to pay for water usage in accordance with the provisions of sections 166 to 169 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).
  3. [24]
    However, they assert that the water consumption charges should be discounted because water usage was likely increased at no fault of their own due to plumbing issues and water usage inefficiencies at the Property, which were not promptly attended to. These include:
    1. (a)
      Taps leaking up until they left the property; and
    2. (b)
      Toilet overflow in July 2018.
  4. [25]
    Ms Gamage denied ongoing plumbing issues at the Property. She said that a water efficiency certificate was issued on 9 April 2018 and although the toilet overflowed in April 2018 it did not overflow in July 2018.
  5. [26]
    Documentary evidence before me evidences that:
    1. (a)
      on 9 April 2018, a Water Efficiency Certification was issued in respect of the Property by a plumber after completing a water audit;
    2. (b)
      on 13 April 2018, the Tenants issued a Form 11 Notice to Remedy Breach for ‘PLUMBING – DRAINS/PIPES BACKING UP INTO SINKS AND TOILETS. TAP IN ENSUITE LEAKING’;
    3. (c)
      on 16 April 2018, Ms Doyle wrote to Ms Gamage complaining that a drip in the ensuite tap and backed up drains were still ongoing; and
    4. (d)
      on 24 April 2018 Ms Doyle sent Ms Gamage a text message complaining of an overflowing toilet with a photo attached.
  6. [27]
    Ms Doyle gave oral evidence that taps continued to leak up until they vacated the Property however she also acknowledged that leaking taps were fixed on 19 May 2018. Ms Doyle said that other plumbing issues (sink and toilet blocking) were fixed on 10 July 2018, which is consistent with the Tenants’ Outline of Argument.
  7. [28]
    There is no evidence that the Tenants experienced or complained about a toilet overflow in July 2018 or significant plumbing issues after that time.
  8. [29]
    Having regard to the evidence (which is discussed in more detail below), I find that the Tenants experienced ongoing plumbing issues at least in in the nature of a toilet overflow between 4 March 2018 and 27 April 2018, a dripping ensuite tap up until 19 May 2018 and sinks blocking up between 4 March 2018 and 19 April 2018. I am not satisfied that they experienced significant ongoing plumbing issues beyond that time.
  9. [30]
    On that basis, I have considered what discount might be appropriate to apply the invoices dated 16 August 2018 and 26 October 2018, which are in respect of the periods when the plumbing issues were evident. The Tenants are not able to quantify the amount of excess water usage incurred as a result and did not make submissions in relation to a discount that would be appropriate.
  10. [31]
    I note that the average cost of monthly water consumption for the period from 9 April 2018 to 15 August 2018 (invoiced on 16 August and 26 October 2018 respectively), when the plumbing issues were evident, is $30.75 per month. That is in fact considerably less than the average cost of water consumption for the period from 16 August to 12 November 2018 (invoiced on 15 January 2019), when there were no significant plumbing issues, which is $41.71 per month.
  11. [32]
    On that basis, I find that there was minimal, if any, additional water consumption charges incurred as a result of the plumbing issues.
  12. [33]
    Accordingly, I do not consider it is appropriate to apply any discount to the charges.
  13. [34]
    On that basis, I find that the Tenants are responsible to pay the entire of the amount of $248.20 claimed for invoice arrears.

Manager’s claim of $1,420.00 for damages to reinstate the property to a reasonable condition

  1. [35]
    The Manager claims $1,420.00 for damages to reinstate the property to a reasonable condition, being:
    1. (a)
      $550.00 for cleaning (the Counter Application states $500 but the invoice provided is for $550 and that is the amount that is used to calculate the total damages claimed in the Counter Application); and
    2. (b)
      $550.00 for gardening
  2. [36]
    On the basis of the Special Terms of the Tenancy Agreement, I find that the Tenants were required:
    1. (a)
      To have the Property cleaned upon exit, preferably by a professional cleaner with the receipt provided to the agent. If the Property was found not to be satisfactorily clean upon final inspection, the Manager was entitled engage their preferred cleaner to do further cleaning at the Tenants’ cost;
    2. (b)
      To have the carpets professionally cleaned upon exit with receipt provided to the agent; and
    3. (c)
      To maintain the garden and yard including (but not limited to) mowing, maintaining hedging (if present), weeding and pruning overgrown vegetation.
  3. [37]
    I do not accept the evidence of Mr Byrne that he did not read the Special Terms of the Tenancy Agreement and instead relied upon an oral representation of the Manager that garden maintenance was included in the rent. His signature is on the same page as the Special Terms. As a lawyer, I find it unlikely that he would not read special terms when he signs the same page. It is also inconsistent with Ms Doyle’s evidence (Doyle affidavit, paragraph 7) that Mr Byrne and Ms Doyle ‘were informed (as noted on the Lease documents) that garden maintenance was not in fact included in the rent price’. In any event, I find that the terms of the Special Terms of the Tenancy Agreement were binding on the Tenants.
  4. [38]
    The Manager maintains that the Property was left in an unclean state, with carpet requiring to be steam cleaned and the garden requiring to be fully cleaned and weeded.
  5. [39]
    The Tenants dispute the claim for cleaning. They maintain that they arranged for the Property to have an exit clean and that the Property was left in a condition that was clean and in a similar state to when they commenced the tenancy.
  6. [40]
    Having considered the evidence, I prefer the evidence of the Manager and accept that the Tenants did not discharge their obligations and it was therefore appropriate for the Manager to arrange professional cleaning and gardening, for the following reasons:
    1. (a)
      The Exit Condition Report completed by the Manager notes cleaning and gardening required;
    2. (b)
      Photos attached to the Exit Condition Report depict some unclean areas in the house and vines, weeds and long grass in the garden areas and garden areas and tiling that appeared to be in need of a clean;
    3. (c)
      Photos at pages 215 and 216 of the annexure to Ms Doyle’s affidavit similarly demonstrate that the garden was overgrown;
    4. (d)
      This is consistent with ongoing concerns expressed by Ms Gamage during the course of the tenancy about cleanliness of the Property and the state of the garden and yard;
    5. (e)
      I do not accept that the a metal frame in the yard prevented the Tenant from weeding as it would have been possible to weed inside it and in any event it only took up a relatively small section of the yard;
    6. (f)
      I note that the break-in and theft occurred at the Property after the Tenant’s exit clean whilst the Tenants still had possession of the Property. I don’t exclude the possibility that might have resulted in the Property becoming unclean. If that is the case, it should be the Tenant’s responsibility because they still had possession of the Property, not having not returned the key to the Manager;
    7. (g)
      The Tenant did not provide a receipt for cleaning to the Manager (because it has not been paid in light of the police investigation);
    8. (h)
      In any event, there is no evidence that the Tenants arranged carpet cleaning and provided a receipt for that to the Manager; and
    9. (i)
      Further, there is no evidence that the Tenants engaged professional gardeners or otherwise undertook necessary gardening and yard cleaning.
  7. [41]
    On that basis, I find that it was appropriate for the Manager to incur the cleaning and gardening costs claimed and that the Tenants should reimburse the costs of $1,100.00 for cleaning and gardening to the Manager.

$320.00 for locksmith changing the lock

  1. [42]
    The Manager claims $320.00 for the locksmith to change the locks due to only having received one key from the Tenant.
  2. [43]
    Ms Doyle returned only one key to the Manager by express post sent on 14 December 2018 and left the remaining keys in a drawer at the Property.
  3. [44]
    Ms Gamage says that the remaining keys were not left in a drawer at the Property and they could not be located.
  4. [45]
    Having considered the evidence, I find that the remaining keys were not able to be located at the Property and were not returned to the Manager by the Tenants. I found Ms Gamage to be a credible witness. Further, I note that the break-in and theft occurred at the Property after the Tenant’s exit clean whilst the Tenants still had possession of the Property. I don’t exclude the possibility that might have resulted in the keys becoming lost. If that is the case, it should be the Tenant’s responsibility because they still had possession of the Property, not having not returned all the keys to the Manager.
  5. [46]
    On that basis, I find that it was appropriate for the Manager to incur the cost of changing the locks and that the Tenants should reimburse the cost of $320.00 to the Manager.

$1,500.00 damages for lost sound system

  1. [47]
    The Tenants accept that the sound system was lost as a result of theft on 3 December 2018 which was reported to Police.
  2. [48]
    I consider that loss of the sound system should be the Tenant’s responsibility because they still had possession of the Property, not having not returned all the keys to the Manager
  3. [49]
    The Tenants dispute the amount of $1,500.00 damages claimed in respect of the sound system on the basis, firstly, that there is no evidence to support its value and, secondly, that it never worked.
  4. [50]
    I note that there is no evidence of the value of the sound system. The Tenancy Agreement notes that the inclusions provided were ‘TV cabinet with surround sound system in lounge area. Speakers in court yard bbq [sic] area’. I accept Ms Doyle’s evidence that it was Bose brand, which I note is a well-known brand of speaker that would likely have some inherent value.
  5. [51]
    There is no independent evidence to support Ms Doyle’s evidence that the sound system did not work. The sound system was itemised as an inclusion on the tenancy agreement. The Entry Condition Report completed by the Tenant has not been provided by any party. Further, there is no record of any complaint or note made to that effect that it did not work. Given the Tenants’ propensity to document and complain about things on the Property that did not work satisfactorily, I find it unlikely that they would not have similarly recorded a complaint or at least a note in relation to the sound system if it did not work.
  6. [52]
    Having regard to the evidence, I find that the Tenants were responsible for the loss of the sound system. In the absence of evidence as to its value, I consider that it is appropriate that the Tenants pay damages of a more modest sum of $100.00 in respect of the sound system.

The Tenants’ application

  1. [53]
    I will deal with each part of the Tenants’ application separately.

The Tenants’ claim for $7,192.00 for compensation for rental rebate

  1. [54]
    The Tenants claim a rental rebate in the amount of $7,192.00 on the basis that the Lessor failed during the tenancy period to comply with its obligations.
    1. (a)
      to ensure the Property was clean, in good repair and fit for use at the commencement of the tenancy pursuant to section 185(2) of the RTRA;
    2. (b)
      to ensure the Property was in good repair and fit for use during the tenancy pursuant to section 185(3) of the RTRA;
    3. (c)
      to return a copy of the Entry Condition Report pursuant to section 65(5) of the RTRA; and
    4. (d)
      not to unlawfully enter the premises pursuant to section 202 of the RTRA.
  2. [55]
    I will deal with each of those matters separately.

Obligation to ensure the Property was clean, in good repair and fit for use at the commencement of the tenancy pursuant to section 185(2) of the RTRA

  1. [56]
    The Tenants’ claim that the Property was not clean, in good repair and fit for use at the commencement of the tenancy is denied by Ms Gamage.
  2. [57]
    It is relevant at this point to note that although the Tenants took possession of the Property on 26 July 2017, the tenancy did not actually commence until 6 August 2017. That was made clear in the tenancy agreement and also in a text message that was sent to Ms Doyle (page 97, Annexure 1 to Doyle affidavit).
  3. [58]
    The Entry Condition Report completed by the Manager notes that the property was clean and in good repair apart from some noted exceptions.
  4. [59]
    Neither party has produced a copy of the Entry Condition Report which Ms Doyle says she emailed to the Manager on 28 July 2017. There are no photos or other independent evidence to verify the state of the Property at that time.
  5. [60]
    There is no dispute that the Manager had the property cleaned on 29 July 2017, after the tenants took possession of the Property but prior to the tenancy formally commencing on 6 August 2017.
  6. [61]
    I accept the evidence of Ms Gamage that the property was clean which is consistent with the undisputed fact that the property was cleaned on 29 July 2017
  7. [62]
    In relation to the repair issues, it is apparent from text messages exchanged between Ms Doyle and the Manager on 2 August 2017 (pages 108 to 111 Annexure 1 to Doyle affidavit) that complaints made by Ms Doyle regarding a broken fan and a live electrical wire were to be fixed prior to the tenancy formally commencing in 6 August 2017 and that an electrician attended to fix them prior to 6 August 2017.
  8. [63]
    However, I note from emails attached to Ms Doyle’s affidavit that Ms Doyle subsequently made repeated requests for the ceiling fan to be repaired between 2 August 2017 and 3 April 2018. Both Ms Doyle and Ms Gamage gave evidence that it was not finally repaired until 19 April 2018.
  9. [64]
    In the Queensland climate a safely functioning ceiling fan is a common and appropriate convenience.
  10. [65]
    Having regard to the above evidence, I am satisfied that the Manager did not take all reasonable steps to ensure that the Property was in good repair prior to commencement of the tenancy on 6 August 2017 due to the ceiling fan not working.
  11. [66]
    On that basis, I find that the Manager DID NOT comply with its obligation to ensure the Property was in good repair at the commencement of the tenancy.

Obligation to ensure the Property was in good repair and fit for use during the tenancy pursuant to section 185(3) of the RTRA

  1. [67]
    The Tenants claim that the Manager failed to promptly rectify numerous maintenance issues during the tenancy period and, in so doing, failed to maintain the Property in good repair and fit for use.
  2. [68]
    The Manager denies this and says that all maintenance requests were attended to in a timely manner, subject to some delays caused by the Tenants’ refusal to permit access to the Manager and tradesmen due to it being inconvenient to the Tenant.
  3. [69]
    The maintenance issues complained of by the Tenant during the course of the tenancy were as follows:
    1. (a)
      Hot water being intermittent – the Tenants first complained about this by email on the evening 2 October 2017. In an email from the Manager to Ms Doyle the following morning, the Manager requested that Ms Doyle call him to arrange access. Ms Gamage denies that there was any subsequent issue in relation to the hot water system and denies that Ms Doyle verbally complained about it to her on 9 April 2018. I prefer the evidence of Ms Gamage in that regard which is supported by the fact that there are no further documented requests for maintenance of the hot water system. On that basis, I find that there were no ongoing issues with hot water being intermittent.
    2. (b)
      Dishwasher overflowing, blocking up and not cleaning – the Tenants verbally complained about this on one occasion on 9 April 2018. Ms Gamage says that a plumber attended to fix the dishwasher that very day and the following day. Ms Gamage denies that the problem was ongoing. Ms Doyle says that the issue was never resolved. I note that the issue was not referred to in the Form 11 Notice to Remedy Breach given on 13 April 2018. I prefer the evidence of Ms Gamage in the absence of any other evidence to support a finding that the problem was ongoing. On that basis, I find that there were no ongoing issues with the dishwasher.
    3. (c)
      Rangehood only one fan setting and leaking when it rained – the Tenants complained about this on 4 March 2018, 9 April 2018 and 16 April 2018. Ms Gamage says that the problem was fixed on or about 9 April 2018. The complaint by Ms Boyle on 16 April 2018 supports a finding that the problem was ongoing after it was repaired on 9 April 2018. On that basis, I find that there was only one fan setting on the rangehood and it leaked when it rained from 4 March 2018 and the issues were not resolved.
    4. (d)
      Garage doors not working – the Tenants complained about this on 4 March 2018, 9 April 2018 and 16 April 2018. Ms Gamage says that the handyman attended at the Property on two occasions to fix the garage doors however was unable to get access. On that basis, I find that the garage doors did not work properly from 4 March 2018 and that problem was not resolved.
    5. (e)
      Live wire on back deck –the Tenants complained about this on 2 August 2018. I accept Ms Gamage’s evidence, which is supported by text message evidence, that an electrician attended to fix the live wire on 4 August 2017, and prior to formal commencement of the tenancy on 6 August 2017. On that basis, I find that there were no ongoing issues with a live wire on the back deck.
    6. (f)
      Front door not lockable – the Tenants complained about this on 8 August 2017, 21 February 2018 and on 4 March 2018. Ms Doyle says that it was not fixed until 5 March 2018. I accept Ms Doyle’s evidence in that regard and find that there were ongoing issues with the front door not being lockable which were not resolved until 5 March 2018. On that basis, I find that the front door was not lockable between 8 August 2017 and 5 March 2018.
    7. (g)
      Stovetop not working due to grease and fat build up in pipes and hardware – the Tenants complained about this on 3 October 2017, 4 March 2019, 3 April 2018 and 16 April 2018. Ms Doyle says it was not fixed until 10 July 2018. Ms Gamage says that it was fixed on 19 April 2018. I accept Ms Gamage’s evidence because it is consistent with an email from Ms Gamage to Ms Doyle dated 17 April 2019. On that basis, I find that the stovetop did not work properly between 3 October 2017 and 19 April 2019.
    8. (h)
      Loungeroom ceiling fan broken and makes a loud screeching sound – the Tenants complained about this on 2 August 2017, 8 August 2017, 21 February 2018, 4 March 2018, 7 March 2018, 3 April 2018 and 9 April 2018. Ms Doyle says it was not fixed until 19 April 2018. That is consistent with the evidence of Ms Gamage and an email from Ms Gamage to Ms Doyle dated 17 April 2019. On that basis, I find that the loungeroom ceiling fan was broken and made a screeching sound between 2 August 2017 and 19 April 2019.
    9. (i)
      Bedroom ceiling fan not working properly – Ms Doyle says that she complained about this orally on 9 April 2019 and it was fixed on 19 April 2019. That is consistent with the evidence of Ms Gamage and an email from Ms Gamage to Ms Doyle dated 17 April 2019. On that basis, I find that the bedroom ceiling fan did not working properly between 9 April 2019 and 19 April 2019.
    10. (j)
      Curtain rails in loungeroom broken – Ms Doyle says that she complained about this on 4 March 2018, 9 April 2018 and 16 April 2018. Ms Doyle says it was fixed on 30 May 2018. Ms Gamage says that it was fixed on 19 April 2018. I prefer Ms Gamage’s evidence in this regard as it is consistent with the email dated 17 April 2018. On that basis, I find that the curtain rails in the loungeroom were broken between 4 March 2018 and 17 April 2018.
    11. (k)
      Roof/ceiling leak due to gutters not being cleaned– Ms Doyle says that she complained about this on 4 March 2018 and that it was fixed on 4 July 2018. I accept the evidence of Ms Doyle that there was a roof/ceiling leak due to gutters not being cleaned. On that basis, I find that there was a roof/ceiling leak when it rained due to gutters not being cleaned from 4 March 2018 to 4 July 2018.
    12. (l)
      Gutters not cleaned – I have dealt with this above. I do not consider it warrants further consideration as there is no specific detriment to the Tenants.
    13. (m)
      Sinks in kitchen blocking up – Ms Doyle says that she complained about this on 4 March 2018, 9 April 2018, 16 April 2018 and 19 April 2018 and that it was not fixed until 10 July 2018. Ms Gamage says that it was repaired on 10 April and 19 April 2018. I prefer the evidence of Ms Gamage which is consistent with the email dated 17 April 2018. On that basis, I find that the sinks in the kitchen blocked up between 4 March 2018 and 19 April 2018.
    14. (n)
      Ensuite toilet overflow – Ms Doyle says that she complained about this on 4 March 2018, 9 April 2018, 13 April 2018, 19 April 2018, 24 April 2018 and 4 May 2018 and that it was not fixed until 10 July 2018. Ms Gamage says that the Manager arranged a plumber to fix it on 27 April 2018 but that Ms Doyle did not permit him access at that time. Ms Gamage says that the subsequent delay in fixing it was due to Ms Doyle refusing the plumber access at an earlier time. I prefer the evidence of Ms Gamage as it is consistent with evidence that Ms Doyle only permitted workers to attend at a time convenient to her. On that basis, I find that the ensuite toilet overflowed between 4 March 2018 and 27 April 2018 because the subsequent delay in fixing it was due to the Tenants not permitting access to workers sooner.
    15. (o)
      Ensuite sink overflow – Ms Doyle made similar complaints regarding an ensuite sink overflow. On the same basis as the issue as the kitchen sink overflow, I find that the ensuite sink overflowed between 4 March 2018 and 19 April 2018.
    16. (p)
      Security alarm system – Ms Doyle says that she complained about the security alarm not working and that it was fixed the same day. On that basis, I find that there were no ongoing issues with the security alarm.
  4. [70]
    Accordingly, I find that the Manager failed to ensure the Property was in good repair and fit for use during the tenancy pursuant to section 185(3) of the RTRA on the following grounds:
    1. (a)
      there was only one fan setting on the rangehood and it leaked when it rained from 4 March 2018 and the issues were not resolved;
    2. (b)
      the stovetop did not work properly between 3 October 2017 and 19 April 2019;
    3. (c)
      the loungeroom ceiling fan was broken and made a screeching sound between 2 August 2017 and 19 April 2019;
    4. (d)
      the bedroom ceiling fan did not working properly between 9 April 2019 and 19 April 2019;
    5. (e)
      the curtain rails in the loungeroom were broken between 4 March 2018 and 17 April 2018;
    6. (f)
      there was a roof/ceiling leak when it rained due to gutters not being cleaned from 4 March 2018 to 4 July 2018;
    7. (g)
      the sinks in the kitchen blocked up between 4 March 2018 and 19 April 2018; and
    8. (h)
      the ensuite toilet overflowed between 4 March 2018 and 27 April 2018.
    9. (i)
      the ensuite sink overflowed between 4 March 2018 and 19 April 2018.
  5. [71]
    I have also taken into consideration the interference of the Tenants’ enjoyment of the property of having various persons attend at the property in the course of attending to those issues.
  6. [72]
    Having regard to those matters, I consider that the Tenants should be entitled to a 10% discount of rent paid. I consider that is an appropriate discount because whilst some of the matters such as the toilet overflow were very serious others such as the broken curtain rail were less serious. The problems occurred for varying periods of time, some for a relatively short time and some over a more lengthy period. Further, some of the delays in repair were due to the Tenants not permitting earlier access to workers.
  7. [73]
    On the basis that the Tenants paid $32,480.00 in rent, the discount applicable is $3,248.00.

Obligation to return a copy of the Entry Condition Report pursuant to section 65(5) of the RTRA

  1. [74]
    Neither party has produced a copy of the Entry Condition Report which Ms Doyle says she sent the Manager on 28 July 2017. I have not been provided with any independent verification that the Entry Condition Report was in fact received by the Manager.
  2. [75]
    I note a text message dated 15 September 2017 which is apparently from the Manager to Ms Doyle which states ‘I still missing [sic] an Entry Condition Report. Could you email me a copy please’ (pages 111 to 112, Annexure 1 to Doyle affidavit).
  3. [76]
    In the circumstances, I am not satisfied that the Entry Condition Report was in fact received by the Manager.
  4. [77]
    On that basis I find that the Manager did not fail to return a copy of the Entry Condition Report to the Tenants.

Unlawful entry of the premises in contravention of section 202 of the RTRA

  1. [78]
    Ms Doyle says that at some time on or before 13 April 2018 Ms Gamage unlawfully entered the Property in contravention of section 202 of the RTRA. Ms Doyle relies on circumstantial evidence, namely photos of the backyard area which Ms Gamage emailed to the Tenants on 13 April 2018. Ms Doyle accepts that Ms Gamage conducted an inspection of the Property on 9 April 2018 but says that Ms Gamage did not go into or inspect the back yard at that time.
  2. [79]
    Ms Gamage denies the allegations. She says that she took the photos when she inspected the Property on 9 April 2018.
  3. [80]
    I consider that it is a likely and reasonable explanation that Ms Gamage took the photos at the time of the property inspection on 9 April 2018. It is consistent with the purpose of her visit and the concern that Ms Gamage expressed at that time about the state of the garden.
  4. [81]
    On that basis, I accept Ms Gamage’s evidence.
  5. [82]
    There is no other evidence which supports a finding of unlawful entry by Ms Gamage.
  6. [83]
    Accordingly, I find that Ms Gamage did not unlawfully enter the Property.

The Tenants’ claim that the Manager not be allowed to place them on any tenancy database

  1. [84]
    It is apparent from the Counter-Application that the Manager seeks an order permitting it to submit the Tenants details to tenancy databases, and from the Application that the Tenants seek an order that that not occur.
  2. [85]
    However, there is currently no evidence before me:
    1. (a)
      That the Tenants have been listed on a tenancy database by the Manager;
    2. (b)
      That the Tenants have been issued with information concerning any proposed listing as required by section 459(2) of the RTRA; nor
    3. (c)
      As to the content of any proposed listing.
  3. [86]
    At this point in time, the Tribunal has no knowledge of the information that any proposed or actual listing may contain.
  4. [87]
    In the circumstances, I consider that it is premature for the Tribunal to make any order pursuant to section 461 or section 462 of the RTRA.
  5. [88]
    In the event that Tenants become aware of any current listing, they may make application to the Tribunal under section 461(1) of the RTRA.
  6. [89]
    In the event that the Manager gives the Tenants notice of any proposed listing as it would be required to do pursuant to section 459(2) of the RTRA, the Tenants may make application to the Tribunal under section 462(1) of the RTRA.
  7. [90]
    The Tribunal would then hear and determine the application having regard to the content of the proposed listing and the relevant circumstances.
  8. [91]
    In the circumstances, I decline to make any orders regarding listing in the tenancy database at this point in time.

What remedy should be ordered?

  1. [92]
    I turn to the issue of what remedy should be ordered.
  2. [93]
    I have calculated that the total amount that the Tenants are liable to pay the Manager is:
    1. (a)
      $1,060.57 for rent arrears, comprising:
      1. $4,308.57 for rent arrears;
      2. Less a discount of $3,248.00 for damages;
    2. (b)
      $248.20 for invoice arrears;
    3. (c)
      $1,520.00 for damages to reinstate the property to a reasonable condition, comprising:
      1. $1,100.00 for cleaning and gardening;
      2. $320.00 for changing locks; and
      3. $100.00 for missing sound system.
  3. [94]
    On that basis, it is appropriate that the rental bond of $2,320.00 is released to the Manager forthwith in part payment of that amount.
Close

Editorial Notes

  • Published Case Name:

    Jamie William Byrne & Sophie Claire Doyle v I-Sale Property Pty Ltd

  • Shortened Case Name:

    Jamie William Byrne v I-Sale Property Pty Ltd

  • MNC:

    [2019] QCAT 405

  • Court:

    QCAT

  • Judge(s):

    Garner

  • Date:

    05 Dec 2019

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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