Kasim v Bondfield[2015] QCAT 76

APPEARANCES:

REASONS FOR DECISION

1. [1]
   This is a claim brought by Mr Kasim who owns a house in Auchenflower, for compensation arising from a break lease by the Respondents whom he says were his tenants.  The Respondents have brought a counter application seeking repayment of two weeks’ rent that they had paid.
2. [2]
   The main issue between the parties is whether a residential tenancy agreement in respect of the house was made at all. 
3. [3]
   When Mr Kasim provided the tenancy agreement to the Respondents he made it clear that he required all three of them to sign it before he would regard it as effective.  Two of the Respondents signed but the third Ms Ferrier, did not. 
4. [4]
   But when Ms Ferrier explained that she not available to sign it because she was away but that they all still wanted to rent the house, Mr Kasim said that he was willing to wait for the signed tenancy agreement and “don’t worry the house is yours”.
5. [5]
   On the day when the tenancy was supposed to start, Mr Kasim gave possession of the house to the Respondent Mr Huehne, who took possession also on behalf of the others.   By that time, all three Respondents had taken the usual steps to become tenants, including paying two weeks rent in advance and organising payment of the rental bond. 
6. [6]
   The following day, the Respondents informed Mr Kasim that they would not be taking the house after all, saying it was not in as good a condition as they had expected.  Despite retaining the keys, none of them actually moved in.
7. [7]
   The two Respondents who had signed the agreement did so without first inspecting the house.  Ms Ferrier knew the house and had expressed to strong desire to become a tenant. 
8. [8]
   If there was a tenancy agreement made, the Respondents say that they were justified in ending it because the house was in disrepair and unclean and because it was represented in an advertisement as much nicer than it really was.

The facts

9. [9]
   Prior to the events with which I am concerned in this case, the house was tenanted by others.  Ms Ferrier’s second cousin was one of the tenants and so Ms Ferrier was a regular visitor there.  She liked the house.  She was friendly with the other two tenants.  Ms Ferrier was aware that those tenants were moving out of the house on 31 January 2014, so she went about trying to secure a tenancy of the house for herself and her friends (the other two Respondents) starting immediately afterwards.  Ms Ferrier knew the house well enough to be able to decide at an early stage which room she was going to be occupying if she secured the tenancy.
10. [10]
    On 10 January 2014 Ms Ferrier contacted the owner Mr Kasim by email and indicated that she and her two friends were very keen to take a tenancy of the house starting on 1 February 2014.  She said they would “absolutely love to live there”.  That same day there was email correspondence between them in which a rent of $600 per week was agreed.  This was $30 a week more than the existing tenants were paying.
11. [11]
    Then as Mr Kasim has requested, later on 10 January 2014 all three Respondents made a formal written rental application to him.  This was organised by Ms Ferrier who collated all the documentation and forwarded it to him.  The documents included proof of identification and financial status documents for all three of them.
12. [12]
    At the same time Ms Ferrier also provided a written guarantee from her mother for the rent and for the “terms of lease”.   Mr Bondfield also provided a written guarantee from his mother for the rent and for the rental bond.  Ms Ferrier submitted both of these to Mr Kasim.
13. [13]
    Mr Kasim responded on the same day by sending to all three Respondents the Pocket Guide to Tenants (Form 17a) published by the Residential Tenancies Authority (the RTA), and arranging to meet them the following day at the house, on 11 January 2014.
14. [14]
    On 11 January 2014 the meeting at the house was attended by Mr Kasim and Mr Huehne and Mr Bondfield.  The original intention was that they would be able to enter the house and look around.  The existing tenants had agreed to this.  However, none of the existing tenants were there and Mr Kasim did not have the keys, so this could not be done.  Instead, Mr Kasim talked to Mr Huehne and Mr Bondfield in the yard of the house without going in. 
15. [15]
    On this day Mr Kasim gave Mr Huehne and Mr Bondfield a number of documents relating to the prospective tenancy. In particular, he provided a written tenancy agreement on the standard form (Form 18a) prepared in the names of all three prospective tenants, and showing a commencement date for the tenancy of 1 February 2014 and a fixed term of 12 months.  He asked that they and Ms Ferrier sign this and return it to him.
16. [16]
    Amongst the other documents he provided that day was a bond lodgement form (Form 2) showing all three Respondents as tenants, and giving the details of the tenancy as starting on 1 February 2014 and ending on 31 January 2015.
17. [17]
    On 11 January 2014 both Mr Huehne and Mr Bondfield signed the bond lodgement form.  This showed that they had each provided $800 towards the bond of $2,400.   At about the same time they provided this money to Ms Ferrier. 
18. [18]
    On 12 January 2014 Mr Kasim sent the following email to all three tenants:-

Hi All

Just wondering is all of you have signed the agreement?  I will be in Brisbane this Wednesday and can collect it from you (let me know where) after lunchtime.  Otherwise you will need to post it to me.

I need the agreement back as soon as possible to confirm your tenancy.

Regards

Saufi

19. [19]
    Mr Kasim sent other emails emphasising his desire for the tenancy agreement to be signed by all the Respondents.
20. [20]
    Mr Huehne responded to this email by saying that he and Mr Bondfield had signed the tenancy agreement but they were still waiting for Ms Ferrier to sign it.
21. [21]
    Two days later on 14 January 2014 these text messages passed between Ms Ferrier and Mr Kasim:-

Ms Ferrier:  Hi Saufi Alastair Nate and I are still very keen to take (the house) but I can’t get to Brisbane until this weekend is it possible for me to sign the lease on Saturday morning?  I am looking after my family’s house in Roma and the earliest I can get away is Friday afternoon

Mr Kasim: Yes I can wait I just wanted to make sure that you still want it as other people are also interested but don’t worry the house is yours :-) If you could pay your share of the bond ($800) electronically to one of the boys maybe they can made a cheque to RTA before you are back in brsbe.

Ms Ferrier: Great that is no problem. I just called my parents they said the transferred the money so it will turn up any day now.  Thank you

22. [22]
    Ms Ferrier did comply with Mr Kasim’s request to pay her share of the bond.  In fact she organised the bond payment.  She received $800 from her parents as her share of the bond.  She received $800 from each of the other two Respondents.  Then she organised and obtained a bank cheque drawn in favour of the Residential Tenancies Authority for $2,400.  At some subsequent time, she provided this cheque to Mr Huehne to give to Mr Kasim.  At some point which is unclear, Ms Ferrier also signed the bond lodgement form or placed her signature on it electronically.
23. [23]
    On 24 January 2014 Mr Kasim provided the Respondents with some special terms to be added to the tenancy agreement.
24. [24]
    On 30 January 2014 arrangements were being made for the agreed handover day of 1 February 2014.  These text messages passed between Mr Kasim and Mr Ferrier:-

Ms Ferrier:  Hi saufi would it be possible to meet a bit later to get the keys etc on Saturday? Gemma

Mr Kasim: What time?

Ms Ferrier: After 1 would be great!

Mr Kasim: I rang Nathan and he said that he can collect the keys for you and alastair.  He will be there at 10.30am.  As long as you have signed all documents you don’t need to be there so please ensure all signed doc are with him.  Also the rent money is still not in the account can you check please?

25. [25]
    Mr Kasim was referring in that last text message to the two weeks’ rent in advance.  In the days leading up to 31 January 2014 Mr Huehne and Mr Bondfield paid their share of this to Ms Ferrier.  She added her share to this and paid the two weeks’ rent of $1,200 to Mr Kasim on 31 January 2014 by direct payment into his bank account.
26. [26]
    On 1 February 2014 Mr Kasim met Mr Huehne at the house.  Mr Huehne was there with his girlfriend. 
27. [27]
    Mr Huehne gave Mr Kasim the following documents relating to the tenancy.

    1. (a)
       The tenancy agreement signed by himself and Mr Bondfield.
    2. (b)
       The bank cheque in favour of the RTA for the bond which Ms Ferrier had given to him so that he could give it to Mr Kasim.
    3. (c)
       The bond lodgement form signed by all three Respondents.
28. [28]
    Mr Kasim gave Mr Huehne two sets of keys and a keys management form which he initialled.  These keys were for Mr Huehne and Mr Bondfield.  Mr Kasim’s intention was that Ms Ferrier could get her keys from the outgoing tenants who had temporarily retained a set.  To him, this seemed appropriate since she was related to one of the outgoing tenants and was friendly with the others.
29. [29]
    Mr Kasim also produced an entry condition report which he proceeded to complete in Mr Huehne’s presence.  The two men took the opportunity to go round the house.  Mr Huehne identified some maintenance issues which he asked Mr Kasim to deal with, and Mr Kasim agreed to do so.  One was the stove: Mr Huehne was of the view that it was unusable.  Although Mr Kasim disagreed with this, he agreed to have it replaced.  In fact he did do this about a month later. 
30. [30]
    Mr Kasim left the entry condition report with Mr Huehne for completion.
31. [31]
    Mr Huehne asked if he could paint the master bedroom a different colour.  Mr Kasim said he would come back to him on this.  They discussed the absence of a remote control for one of the air conditioners and it they agreed that Mr Huehne would purchase another and that Mr Kasim would reimburse him.  Mr Huehne and Mr Kasim read the water meter together and the reading was inserted on the tenancy agreement.
32. [32]
    At that meeting, Mr Kasim returned the tenancy agreement to Mr Huehne.  It still required Ms Ferrier’s signature and the idea was that Mr Huehne would give it to her to sign.
33. [33]
    After this, Mr Kasim left Mr Huehne with his girlfriend at the house.  When Mr Huehne had finished at the house he secured it using the keys which Mr Kasim had given to him.
34. [34]
    Neither Mr Kasim nor Mr Huehne said that the handover of possession was conditional upon anything else occurring, such as a satisfactory inspection of the property, a final affirmation, or for that matter Ms Ferrier’s signature on the tenancy agreement.
35. [35]
    After the meeting Mr Kasim sent the bond cheque to the RTA and prepared a receipt for the rent in advance, describing it as being for rent from 1 to 14 February 2014 and naming all three Respondents on this document.  He also signed the bond lodgement form as lessor.
36. [36]
    Meanwhile Mr Huehne had decided that he did not like the house after all.  He contacted Mr Bondfield and Ms Ferrier and showed them some photographs that he had taken on his mobile phone.  They agreed that they would not be taking the house after all. 
37. [37]
    On 2 February 2014 Mr Huehne sent an email to Mr Kasim as follows:-

Dear Saufi

Upon inspection of the condition of the house on Saturday (1^st February 2014), which did not meet our expectations and standards, we have decided not to proceed with the lease at (the house).  Could you kindly return our payment to Gemma’s bank account.

Regards

Nathan Huehne

38. [38]
    On 2 February 2014 Ms Ferrier also asked Mr Kasim by text message for the rent to be returned.
39. [39]
    In the ensuing correspondence Mr Huehne persisted that there was no tenancy agreement because it had not been signed by all three prospective tenants, and referred to having had legal advice to that effect.  On that basis he stated quite clearly that the Respondents would not be moving into the house.  At the same time however, he gave the reason for not moving as the poor condition of the house.

Was there a tenancy agreement?

40. [40]
    In Queensland, residential tenancies are governed by the provisions of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the RTRAA). 
41. [41]
    The relevant part of section 12 of that Act reads:-

3. (1)
   A residential tenancy agreement is an agreement under which a person gives to someone else a right to occupy residential premises as a residence.

42. [42]
    Ms Ferrier did not sign the agreement.  However, by itself this does not mean it is not enforceable against her.  The same applies if a lessor does not sign.  This is because of section 12(3) of the Act which reads:-

3. (3)
   Subsection (1) also applies whether the agreement is—

1. (a)
   wholly in writing, wholly oral or wholly implied; or

2. (b)
   partly in a form mentioned in paragraph (a) and partly in 1 or both of the other forms.

43. [43]
    And although section 61 of the Act requires the lessor to ensure that the residential tenancy agreement is in writing in the standard form, subsection (6)(b) provides that if the agreement is not in writing this does not affect its enforceability.  This is underlined by section 64(5) under which the Tribunal can order a tenant to sign a residential tenancy agreement and return it to the lessor if the tenant has unreasonably failed to do this within 5 days of receiving it.
44. [44]
    The answer to the question whether or not there was a residential tenancy agreement under section 12(1) should be answered by looking at the objective facts and deciding whether they demonstrate that a contractually binding agreement was entered into between Mr Kasim and any or all of the three respondents that they could occupy the house as a residence.
45. [45]
    In the earlier stages, Mr Kasim’s approach to the technicalities of commencing the tenancy was that he required all three signatures on the tenancy agreement before it could be valid.  This can be seen from his email of 12 January 2014 and the context in which it was written.  Mr Kasim was mindful of the obligation to provide a written tenancy agreement containing the standard terms required by statute and any special terms.^[1] 
46. [46]
    I am of the view that the strength of Mr Kasim’s stipulation at that time meant that it amounted to condition precedent to the creation of a contract.  He was making it clear that he would not be bound by the contract unless all three prospective tenants signed the tenancy agreement.
47. [47]
    On 14 January however, things changed.  On that day Ms Ferrier explained that she had difficulties arranging to sign the tenancy agreement and asked if it was alright if her signature on the document were to be postponed.  Mr Kasim agreed to this and said “don’t worry the house is yours”.  The reference to “yours” I think is properly understood because of Ms Ferrier’s earlier text as referring to all three Respondents who she said were “still very keen” to take the house.  Mr Kasim was justified in accepting this text as written on behalf of all three of the prospective tenants since Ms Ferrier had been acting on their behalf in gathering together the paperwork.
48. [48]
    To my mind at that point the contract was complete.  Mr Kasim had lifted the one impediment to it being binding on all parties.  By then everything of importance had been agreed: the tenancy start date, the period of the tenancy, the rent, who would be tenants, and the terms of the tenancy (which was to be on the standard form).
49. [49]
    It is notable also that Ms Ferrier paid her share of the bond as asked by Mr Kasim in his text message of 14 January.  This means she altered her position in the light of his promise that the Respondents had secured the tenancy.  If at that point Mr Kasim had changed his mind and refused to give possession he himself would have been in breach of contract.  And in equity he would be estopped from denying his promise that the tenancy would be completed.
50. [50]
    When Mr Kasim sent the special terms to the tenants on 24 January 2014, this did not change the position.  By that time, the contract having already been made, it was up to the tenants to agree to the special terms or to decline to agree to them.
51. [51]
    Further, when Mr Kasim again pressed for Ms Ferrier’s signature on the tenancy agreement in his text message of 30 January 2014, this did not change things because the tenancy agreement was already in place.  At that time he was expecting all three tenants to attend the premises on 1 February when the tenancy was due to start, and provide him with a signed tenancy agreement.
52. [52]
    As it turned out, he was provided on that day with a tenancy agreement signed only by two of the three tenants.  In accordance with his legal obligation at that time he accepted this, and gave possession of the property to the tenants by giving Mr Huehne the keys and permitting him to stay there.
53. [53]
    The analysis above is made in accordance with the case law on this subject, in particular with Masters v Cameron (1954) 91 CLR 353 at 360, where the High Court set out three possible categories into which such negotiations may fall:-

Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the subject matter of their negotiation is to be dealt with by a formal contract, the case may belong to any of three classes.

3. (1)
   It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect.

3. (2)
   It may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document.

3. (3)
   The case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.

In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution.  Of the two cases the first is the more common.  Throughout the decisions on this branch of the law the proposition is insisted upon which Lord Blackburn expressed in Resister v Miller (1878) 3 App. Cas. 1124 when he said that the mere fact that the parties have expressly stipulated that there shall afterwards be a formal agreement prepared, embodying the terms, which shall be signed by the parties does not, by itself, show that they continue merely in negotiation.  His Lordship proceeded: ‘… as soon as the fact is established of the final mutual assent of the parties so that those who draw up the formal agreement have not the power to vary the terms already settled, I think the contract is completed’ (at 1151): see also Sinclair, Scott & Co Ltd v Naughton (1929) 43 CLR 310 at p317.  … Cases of the third class are fundamentally different.  They are cases in which the terms of the agreement are not intended to have, and therefore do not have, any binding effect of their own … The parties may have so provided either because they have dealt only with major matters and contemplate that others will or may be regulated by provisions to be introduced into the formal document … or simply because they wish to reserve to themselves the right to withdraw at any time until the formal document is signed.

54. [54]
    Later cases have recognised a fourth category where a subsequent formal agreement may include additional terms agreed between the parties.^[2]
55. [55]
    On my finding, prior to 14 January 2014 the negotiations between the parties fell into category 3 above.  On that day in Ms Ferrier’s negotiations changed to category 1, whereas Mr Huehne’s and Mr Bondfield’s contracts were complete and did not come into any of the categories.
56. [56]
    In submissions the Respondents say that the absence of Ms Ferrier’s signature on the tenancy agreement, or Mr Kasim’s signature for that matter, made it illegal or invalid but this is incorrect because of the provisions of sections 12(1) and 61(6)(b) of the RTRAA as referred to above.
57. [57]
    Mr Huehne says that as far as he was concerned, the visit to the house on 1 February 2014 was only an inspection and was not a handover of the house.  However, if this was his view at the time, he did not express this.  Mr Kasim was reasonably of the view that although Mr Huehne and Mr Bondfield had never seen inside the house, Ms Ferrier who knew the house well, had described it to them to their satisfaction so that no inspection was necessary.
58. [58]
    Under section 60(3)(b) of the RTRAA, the Tribunal can order that a residential tenancy agreement is of no effect if it is entered into in contravention of sections 58 or 59.  Those sections include a requirement that a written tenancy agreement containing the standard terms and any special terms is provided to a tenant before a residential tenancy agreement is entered into or before any money is received other than a key deposit.  On my findings, these provisions were complied with so the agreement could not be set aside on those grounds.

Whether the tenancy could end under common law principles

59. [59]
    This question is important for the Respondents because they say that they were entitled unilaterally to end the agreement because the house was materially misrepresented to them, and also because it was in a poor condition.  Neither of these possibilities would stop a contract coming into existence.  The opportunity to rescind a contract for misrepresentation, or to bring it to an end by accepting a repudiatory breach by the other party all apply after the contract is made.
60. [60]
    So the problem with relying on these possibilities is section 277 of the RTRAA. This states:-

    1. (1)
       A residential tenancy agreement ends only in a way mentioned in this section.
61. [61]
    The remainder of the section sets out ways in which the tenancy agreement can come to an end.  Several possible ways in which at common law a contract may come to an end are not included.  For example, the possibility of termination by oral agreement or by conduct is not contemplated or allowed.^[3]  Instead, the section requires termination by agreement to be effected in writing only.  Importantly for this case, rescission by a tenant because of a material misrepresentation of the property which induced the tenant to enter into the tenancy agreement is not listed in section 277.  Equally, a lessor would be unable to rescind the tenancy if the tenants had been materially misleading about their financial status.
62. [62]
    A repudiatory breach by a lessor (by for example providing a house in such poor condition that it would at common law be a repudiatory breach) is not listed in section 277 either.  Instead, the RTRAA deals with poor condition of a property by permitting the tenant to issue a Form 11 (notice to remedy) and if the remedy is not complied with, a tenant may issue a Form 13 (notice of intention to leave).  Then, upon the tenant’s departure the tenancy comes to an end.^[4]  Alternatively the tenant can apply to the Tribunal to terminate the tenancy.^[5]
63. [63]
    A Tribunal order terminating the tenancy is given in section 277 as one of the ways in which a tenancy can end.  The various grounds in which the Tribunal can make such an order are given in other parts of the RTRAA.  These grounds are circumscribed and defined.  Misrepresentation prior to the tenancy agreement being entered into is not one of the available grounds. 
64. [64]
    These provisions are clear in their terms and are a code governing tenancy agreements in Queensland.  There is no room here to apply the common law rules omitted from section 277.  It follows that neither rescission of a tenancy agreement because of a material misrepresentation nor by accepting a repudiatory breach by the lessor is available to the tenant as a means to end a tenancy.
65. [65]
    But since I have the evidence about these matters it is right that I should reach my conclusion about them in any case, should I be found to be wrong in my understanding of the effect of section 277.
66. [66]
    As for the alleged misrepresentation, the Respondents say that the house in real life was not as good as it appeared on the internet photographs.  However they have not produced the internet photographs that they are relying on.  So a comparison cannot be made.  This ground has no evidence to support it.
67. [67]
    As for the alleged repudiatory breach, the lessor’s obligations in this respect are imposed by statute by section 185(2) of the RTRAA, and these are automatically implied into the tenancy agreement.  Section 185(2) reads:-

(2) At the start of the tenancy, the lessor must ensure—

1. (a)
   the premises and inclusions are clean; and

2. (b)
   the premises are fit for the tenant to live in; and

3. (c)
   the premises and inclusions are in good repair; and

4. (d)
   the lessor is not in breach of a law dealing with issues about the health or safety of persons using or entering the premises.

68. [68]
    Upon receipt of the email of 2 February 2014, Mr Kasim asked Mr Huehne for his reasons for not proceeding with the tenancy.  Mr Huehne said:-

We are unhappy with the current condition of the house.

The stuff that need to be fixed for us to continue are as follows:-

• broken fence
• broken lattice door
• faulty door knob
• cracked window in bedroom/front bedroom
• air condition remote issues
• random patches of paint on walls through the house
• missing lights
• cracked window in tv room
• dripping tap in kitchen
• mould in shower
• bathroom in poor condition
• kitchen in poor condition
• stove top not functioning properly
• gas pipe switch
• laundry in poor condition
• bedroom blind broken

69. [69]
    Mr Huehne had raised some of these matters the day before when he was given possession of the house.
70. [70]
    Mr Kasim accepted that most of the items in the list needed attention.  He organised some repairs to deal with these.  He engaged various trades and issued a number of Entry Notices on Form 9 to enable the work to take place.  By 23 February the following repairs had been done: two palings refixed on fence, door knob tightened, glazing in bedroom replaced, new remote controls purchased for the air conditioning, missing lights replaced by electrician, window in television room reglazed, dripping tap fixed by plumber, mould in shower removed and replaced by plumber, four new taps in bathroom fitted by plumber, new range hood in kitchen delivered (awaiting installation), new stove ordered for kitchen, gas pipe switch checked ok by plumber, new trough for laundry awaiting installation.   Mr Kasim disputed the remainder of the items of complaint.
71. [71]
    That these things needed attention demonstrates that on 1 February 2014 when the tenancy started Mr Kasim was in breach of the requirements of section 185(2) in that the house was in some disrepair and in some respects was not “clean”.  The question is whether the breaches were serious enough to amount to a repudiatory breach.
72. [72]
    The house is a typical example of a Queenslander built about 1940. The photographs show the house as it was on 1 February 2014.  There is evidence from both sides about this as well.  On my finding, on handover the house was generally clean and in an average condition for its age.  It is clear to me that the house was in liveable condition.  There were breaches of section 185(2), but these were minor.  Either taken individually, or taken together the breaches were not significant enough to be a repudiatory breach.
73. [73]
    In any case it is notable that the email of 2 February 2014 from Mr Huehne was not an unequivocal rejection of the tenancy because of its condition. Instead, it suggested that the tenancy would continue if these things were fixed.
74. [74]
    I think also that Ms Ferrier had different reasons for wishing to avoid this tenancy.  She knew the house and its condition and so did not decide not to take it on because of that.  The most important reason for her decision was that she had heard from the outgoing tenants that there was a dispute with Mr Kasim about the return of their bond, and so she was concerned about Mr Kasim as a landlord.  The other reason she did not want to continue the tenancy was that Mr Huehne had decided he did not like the house.  So the condition of the house was not a reason for her decision.

The owner’s loss and whether it was mitigated

75. [75]
    It follows from the above that in fact it was the tenants who were in repudiatory breach by renouncing this tenancy.  Section 277 of the RTRAA sets out the only ways a tenancy can terminate, so Mr Kasim could not have ended the tenancy agreement simply by accepting the tenants’ repudiation.  The tenancy continued until something formal was done to bring it to an end under section 277.
76. [76]
    Although the tenants have not argued the question of mitigation, it is right that the Tribunal should consider this question.  The duty to mitigate is required at common law and also under section 362 of the RTRAA.
77. [77]
    The initial problem for Mr Kasim was to decide whether the tenants had definitely decided not to live in the house.  It was empty, but this could simply be because they had not yet moved in.
78. [78]
    The dilemma faced by Mr Kasim was not helped by the fact that the person who appeared to be representing all the tenants had changed from Ms Ferrier to Mr Huehne.  Ms Ferrier had previously seemed very keen to take on the house so her change of heart seemed strange.
79. [79]
    Also at first, Mr Huehne was saying two inconsistent things.  In his email of 2 February 2014, he gave a list of things which needed to be fixed “for us to continue”.  Later he claimed that there was no agreement at all but said that it was the condition of the house which had changed their mind.  Mr Kasim was dealing with many of the things on the list.  In the light of this, and the obvious misunderstanding on the Respondents’ part about whether there was an agreement at all, Mr Kasim was justified in believing that the tenancy would continue once the repair work was done.
80. [80]
    This seemed to be the case also because Mr Huehne had not returned the keys to the house.  Instead, Mr Huehne said he had given them to the outgoing tenant because she “needs to fix some stuff up”.  In hindsight it is possible to see from the emails from one of the outgoing tenants to Mr Huehne that she asked him to do this, and that he asked her to give the keys to Mr Kasim afterwards.  Although Mr Kasim was aware that Mr Huehne had given the keys to one of the outgoing tenants, this was not a formal giving back to the lessor of vacant possession, and could have been merely a temporary arrangement so that the outgoing tenant could deal with outstanding matters at the house.
81. [81]
    Also the rent had been paid up to 14 February 2014.  When no more rent was paid after that date, Mr Kasim sent text and email reminders to the Respondents and issued a breach notice on Form 11.  This gave the tenants seven days to remedy the breach, requiring the rent to be paid by 28 February 2014.
82. [82]
    Mr Kasim was aware that he could not simply enter the house with his own keys in order to obtain vacant possession.  Mr Kasim spoke to the Residential Tenancies Authority and they told him that he “had to wait”.  He decided that it was inappropriate to advertise it for reletting until he had formally terminated the tenancy. 
83. [83]
    The quickest way to end the tenancy was; to issue an abandonment notice on Form 15.  But because of the inconsistent emails from Mr Huehne and the Respondents’ failure to give him back the keys, the obvious creation and continuation of the tenancy agreement, and the rent having been paid to 14 February, Mr Kasim was justified in first issuing the breach notice requiring the rent to be paid after that date.  Once that was issued there was nothing further he could do until that passing of the remedy date on that notice which was 28 February 2014.
84. [84]
    So it was reasonable in the unusual circumstances of this case to wait until 1 March 2014 to serve a formal abandonment notice (a Form 15).  That notice was placed in the letterbox of the house and meant that if not responded to, the tenants would be taken to have abandoned the house so that the lessor would be entitled to vacant possession.  The date for this to happen on the notice was 9 March 2014.  By the operation of section 277(5)(b) of the RTRAA this terminated the tenancy and so it was terminated as from 9 March 2014.
85. [85]
    Once he had vacant possession of the house, Mr Kasim was able to advertise it for re-letting.  He decided to use letting agents to achieve this, as he had done on previous occasions.  This gave him ready access to various online promotional websites and this was clearly a reasonable approach.  The house was first advertised on 10 March 2014 and the agents organised an open house.
86. [86]
    At first the house was advertised at $600 which was the rent under the current agreement.  The outgoing tenants were paying rent of $570, but in the absence of any advice on this rent level (and there is no evidence of any such advice) the $600 would appear to be reasonable bearing in mind the Respondents had agreed this rent.  However, there was little or no interest in the house at that rent level.
87. [87]
    The agents suggested a reduction in rent and also the offer of two weeks’ free rent.  Mr Kasim accepted these suggestions.  The rent was reduced to $580, then $550 and then finally $500.  New tenants were eventually found and started a new tenancy from 13 June 2014 at $500 a week.
88. [88]
    Despite the time that it took to find a new tenant, these were reasonable efforts to relet the house and Mr Kasim was not in breach of his duty to mitigate his loss.

Disposal

89. [89]
    Mr Kasim has made a number of claims which total $12,089.63.  These are listed in a spreadsheet attached to the claim form.  Only some of these claims are sustainable.  The most important one is the claim for loss of rent in the sum of $10,114.29.  This is calculated up to the date of the reletting and is based on the rent level provided for in the tenancy agreement with the Respondents.  This claim on my findings is clearly allowable.
90. [90]
    Mr Kasim has not sought to claim his continuing loss of rent at the differential of $100 per week from 13 June 2014 to the end of the fixed term of the Respondents’ tenancy.
91. [91]
    Dealing with the other claims in the spreadsheet, there is a claim for advertising costs of $249.85 and a payment of $550 paid to letting agents for their fee.  I am satisfied that these sums were paid by Mr Kasim, that they were reasonably incurred and were paid as a result of the tenants’ renunciation of the tenancy agreement.  They are payable as reasonable reletting fees by a tenant who breaks a lease under Clause 7 of the standard terms, and in Ms Ferrier’s case at common law^[6] or because of the provisions of section 52(1) of the RTRAA which applies the same clause in any tenancy agreement even if unsigned.
92. [92]
    As for the smoke alarm test and clean which cost $60, Mr Kasim says that this has to be done on any change of tenancy.  I agree that this is a requirement of section 104RD of the Fire and Emergency Services Act 1990, and I allow this sum as additional loss.
93. [93]
    There is a claim for bank interest on the loss of rent.  There is a difficulty with this claim.  Whilst by section 14 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal can award interest in claims for a debt or a liquidated demand of money section 13(2)(b) of the Act limits the decisions which can be made by the Tribunal to those which can be made under the RTRAA.  The RTRAA does not provide for interest on unpaid rent to be recovered. 
94. [94]
    I allow the cost of replacement of the front door lock in the sum of $214.15: this has to be done because the tenants failed to return to Mr Kasim the keys which he issued to them.
95. [95]
    The claims made by Mr Kasim for costs incurred in preparing for these proceedings are not appropriate under the QCAT rules.  The only cost in the claim which can be recovered is the filing fee of $294.60.
96. [96]
    The total amount I order the Respondents to pay to the Applicant is therefore $11,482.89. 
97. [97]
    As for the counter application brought by the tenants for return of the rent that they paid, this fails for the reasons given above.