Stone v Briggs[2015] QCAT 139

APPEARANCES:

REASONS FOR DECISION

Application

1. [1]
   By application filed 8 October 2014 Abraham Stone and Issac Stone claimed their bond of $720 consequent upon conclusion of their tenancy of premises 28 Thornycroft Street, Tarragindi. Mark Briggs and Lorraine Briggs as owners have counter-claimed for rental arrears, repairs, rubbish removal and partial bond reimbursement in the sum of $11,696.86.

Background and Evidence

2. [2]
   A written tenancy agreement was entered into between Mark Briggs and Lorraine Briggs (‘Mr and Mrs Briggs’) as owners of 28 Thornycroft Street, Tarragindi and Abraham Stone, Issac Stone, Jack Persson and Mark Thomas as tenants. It was for the term 17 August 2012 to 17 November 2012 at a rental of $720 per fortnight. The bond was recorded as $1,440.
3. [3]
   The general tenancy agreement dated 17 August 2012 recited at item 14 ‘services’ that each tenant was to pay ‘1/5 of bill’. At item 15 the number of persons to reside in the premises was recorded as 5. The fifth person residing at the premises it transpired was Indus Briggs, Mr and Mrs Briggs son.
4. [4]
   At the commencement of the tenancy Jack Persson, Mark Thomas and Indus Briggs occupied the three upstairs bedrooms in the main dwelling with Abraham Stone and Issac Stone sharing a large bedroom in a detached building. Each of the four student tenants were to pay $90 per week to make up the overall rent payable of $720 per fortnight ($360 per week) to Mr and Mrs Briggs. According to Abraham Stone it was indicated to him at about the time of commencement of the tenancy that he would not have to pay his share of rent because there was no separate liveable individual room available for him; that his share of rent would become payable upon occupancy of a separate liveable room.
5. [5]
   Jack Persson moved out 25 October 2012 and Mark Thomas 17 November 2012. However, those two persons left their ‘gear’ at the premises until March 2013 when the University year started. In the meantime, it appears that on 5 December 2012 Abraham Stone moved into Mark Thomas’ old room and commenced paying his share of rent from that date. Mr and Mrs Briggs asserted that it was up to Issac Stone and Abraham Stone to pay $360 per week as the two remaining paying tenants on the now periodic tenancy.
6. [6]
   In about February 2013, Kelly Matthews moved into the premises. In March 2013 Alex Beasley moved into the premises. No further written tenancy agreement was entered into at this time or at any stage later. Neither of those persons paid any bond but both commenced paying rent upon occupancy. In March 2013 both Jack Persson and Mark Thomas were paid their share of the bond of $360 each directly by Mr and Mrs Briggs. The person Alex Beasley resided in the premises for it appears a relatively short three months or so. Kelly Matthews remained in the premises residing with Indus Briggs for a considerable length of time till Indus Briggs and Kelly Matthews both left the premises it appears in about February/March 2014 taking over a period of weeks their belongings with them. Mrs Briggs said she considered Alex Beasley and Kelly Matthews sub-tenants of Abraham Stone and Issac Stone. Neither Issac Stone or Abraham Stone made any arrangements with Kelly Matthews regarding rent. Mr and Mrs Briggs rent ledger records numerous payments made by Kelly Matthews directly to Mr and Mrs Briggs.
7. [7]
   Both Abraham Stone and Issac Stone continued throughout the course of the tenancy to pay rent at the rate of $180 per fortnight each ($90 per week each).
8. [8]
   No notice to remedy breach was issued in the period December 2012 through to 25 April 2014 to any of the persons residing at the premises during that period of time. There was an assertion that a notice to remedy breach was issued to Jack Persson in late 2012 but that was only an assertion.
9. [9]
   By mid-2013 it appears the persons permanently residing at the premises were Abraham Stone, Issac Stone, Indus Briggs and Kelly Matthews. Towards the end of 2013 Abraham Stone and Issac Stone arranged to pay their rent over the Christmas holidays in order to secure residence when they came back from holidays at the end of February beginning of March 2014. They were informed upon return that Indus Briggs was in the process of moving out to return to Federal, New South Wales.
10. [10]
    Abraham Stone and Issac Stone asserted they were informed on 11 April 2014 by Mark Briggs to leave the Thornycroft Street premises. According to Abraham Stone and Issac Stone they finally moved out on 24 April 2014. That was the day they received a notice to leave nominating 11 May 2014 as their required vacate date.
11. [11]
    Abraham Stone and Issac Stone asserted that by 24 April 2014 they had effectively moved out of the house in any event. They did return on 11 May 2014 but that was for the internal cleaning, they said, of that portion of the house occupied by Indus Briggs and Kelly Matthews. They said they were paid $500 by Indus Briggs to clean that portion of the house. Indus Briggs confirmed the payment of $500 to Abraham Stone and Issac Stone.
12. [12]
    Mr and Mrs Briggs produced a rent ledger. It recorded individual payments by Issac Stone (Alex Beasley), Abraham Stone, Jack Persson, Mark Thomas and Kelly Matthews. That ledger recorded a tenancy start dated of 17 August 2012 and an end date of 11 May 2014, a total of 633 days at $360 per week. Rent was claimed at $9,488.86 being rent due at $32,548.86 less rent received at $23,060.
13. [13]
    The claim for broken window glass related to one window in the room occupied by Indus Briggs, two in the patio area and two in the detached building (granny flat). A total of $500 was claimed.
14. [14]
    Mr and Mrs Briggs claimed the cost of a rubbish removal skip at $298 for the cleaning up of general and green waste.

Conclusions

15. [15]
    The original written tenancy agreement involved four persons Issac Stone, Abraham Stone, Mark Thomas and Jack Persson occupying the bulk of the house at 28 Thornycroft Street, Tarragindi. This was so because Indus Briggs, Mr and Mrs Briggs son, was in occupation of one room at the time of commencement of the tenancy on 17 August 2012 through to approximately March 2014.
16. [16]
    At issue is whether all four or any one or more of those four originally named persons is liable for rent at $360 per week for the whole of the tenancy period from 17 August 2012 and claimed through to 11 May 2014. If that is the case there is clearly a shortfall in rent paid. But that was not the case for the following reasons:

    1. Each of the initial four was required to pay his $90 per week for occupancy of a room at the house. Even the written tenancy agreement refers to each tenant paying one fifth for services (all four original tenants and Indus Briggs).
    2. Mark Thomas and Jack Persson at the end of 2012 vacated their rooms leaving their ‘gear’ at the house until March 2013. Upon completing their exist at that time they were paid $360 each i.e. their one quarter of the bond each clearly indicating that they were relieved of any liability to pay rent and that there were no outstanding issues which might call in their bond. The two bond refunds were made on 12 March 2014 which if Mr and Mrs Briggs assertion that $360 per week was always to be paid the rent as at that date was already some $4,000 in arrears. Additionally there was no record of any changed arrangements either in late 2012 or March 2013 which would lead to the conclusion that either Issac Stone or Abraham Stone would assume full liability for the payment of $360 per week. According to Issac Stone and Abraham Stone there was never any discussion at all in that vein in either late 2012 or March 2013. The tenancy was clearly room by room student accommodation.
    3. Issac Stone and Abraham Stone continued to pay and Mr and Mrs Briggs continued to accept $90 per week from each of those persons for the duration of the tenancy.
    4. There was no notice to remedy breach for rent arrears issued in the period December 2012 through May 2014.
    5. Others came and went during the course of the tenancy. Kelly Matthews paid rent of $90 per week directly to Mr and Mrs Briggs in the absence of any reference to either Issac Stone or Abraham Stone indicating a separate rent payment arrangement for that person. Such accords entirely with the rent ledger produced by Mr and Mrs Briggs. Separate payments are recorded separately in respect of various persons (at least six) who came and went during the course of the tenancy. There was a latter day assertion by Mr and Mrs Briggs that Kelly Matthews was a subtenant of Issac Stone and Abraham Stone. There was no evidence to support such contention. She was Indus Briggs girlfriend.
    6. Demand for arrears of rent only appears to have come about in response to Issac Stone and Abraham Stone’s application for the remainder of the bond at $720 to be paid to them.
17. [17]
    Even if it were to be construed that $360 per week was payable pursuant to the written tenancy agreement and then the periodic agreement such claim is in any event almost completely statute barred. Dispute resolution request was lodged on 28 August 2014. The arrears of rent compensation claim is subject to a six month time limit^[1] applicable to the period at best immediately prior to the date of lodgement of the dispute resolution request. The six month time limit applies to the rent claim.^[2] Only those arrears post 28 March 2014 would in any event have ever been recoverable. But that is not the case. The ledger indicates that Issac Stone and Abraham Stone have paid their rent of $90 each per week fully up to 24 April 2014.
18. [18]
    Mr and Mrs Briggs claimed for the cost of repair to five broken windows. One window was in the room occupied by Indus Briggs. Given the rooming nature of the tenancy it is unlikely that this window would have been broken by other tenants. In any event there was no assertion to that effect.
19. [19]
    There were two broken windows in the patio area. This was a common area for use by all coming and going. Those two windows could have been broken by any number of persons given the nature of this rent room by room tenancy. In these circumstances it is not possible to impose liability on any particular tenant. Anyone could have broken these two windows.
20. [20]
    There were two broken windows in the granny flat. That was occupied by Issac Stone and apparently by Alex Beasley for a time. Given that it was Issac Stone’s continued use of this area during the course of the tenancy it is reasonable to expect that particular granny flat area to be returned in the same condition as at commencement. In those circumstances it is more than likely that the breakage occurred during the course of Issac Stone’s continued occupation of the granny flat and that such damage is referrable to his occupation. There were five broken windows repaired at a cost of $500. Given that two were in the granny flat $200 would seem a reasonable estimate.
21. [21]
    The retention of a skip appears to be for a general clean up referrable to the comings and goings of a number of tenants and occupiers not just Issac Stone and Abraham Stone. There is no reason why given the room by room student accommodation nature of the tenancy that Issac Stone and Abraham Stone should bear full responsibility for the cost of the skip.
22. [22]
    Nobody completed an exit condition report.
23. [23]
    The counter application claims $720 ‘partial bond refund already reimbursed for other co-signatories to tenancy agreement tenants M Thomas and J Persson’. Messrs Thomas and Persson were paid out in March 2013. If there were any issues they should have been addressed at that time. There is no basis for attempting to recall this money some 18 months later.
24. [24]
    The disposition of the bond held by the Residential Tenancies Authority for refund purposes will be as follows:

    1. Issac Stone ($360 less $200) - $160
    2. Abraham Stone - $360
    3. Mark and Lorraine Briggs (owners) - $890