Fogarty v Hughes[2024] QCAT 273

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Application

1. [1]
   This is an application for a residential tenancy dispute in Queensland in terms of which the applicant claims from the respondent repayment of $3,400.00 for rent calculated as $595 per week for 40 days paid for the period 11 July to 19 August 2020.^[1]
2. [2]
   The applicant lodged a Form 16 Dispute Resolution Request on 26 August 2020 in respect of the claim and the Residential Tenancies Authority (‘RTA’) issued a Notice of Unresolved Dispute (‘NURD’) to the parties dated 31 August 2020.
3. [3]
   The NURD notified the parties that the dispute was unsuitable for conciliation and that the applicants could choose to lodge their application with QCAT, which they did on 24 November 2020.
4. [4]
   Adherence to that procedure, the statutory provisions for which I will refer to later, is a condition precedent to the Tribunal having jurisdiction to adjudicate a non-urgent residential tenancy dispute in the minor civil dispute jurisdiction here.
5. [5]
   The Tribunal therefore has jurisdiction to adjudicate this non-urgent claim.
6. [6]
   Ms Hughes was on 27 March 2024 served by email with:

   1. Tribunal Orders dated 27 March 2024 for adjournment of the hearing to 9 May 2024 and procedural orders including for filing of an amended Application by the Applicants and service of it on her by email.
   2. Notice of Adjournment to 9 May 2024 at 2 pm.
7. [7]
   Ms Hughes was served by email with the applicants’ amended Application on 15 April 2024.
8. [8]
   I reserved my decision at the final hearing on 9 May 2024 but note that the Order in those terms is incorrectly dated 1 May 2024 due to a clerical error.
9. [9]
   The Order reserving my decision was in fact made and sent out by email to the parties on 9 May 2024 at 2:32 PM after a brief hearing that afternoon.
10. [10]
    I will correct the mistake in the date by making Orders 1 and 2 set out on the first page of these reasons.
11. [11]
    Nothing turns on it because Ms Hughes’ final submissions to which I will refer later had been filed and served on 30 April 2024.
12. [12]
    Neither Ms Hughes nor Ms Fogarty and Mr Parker attended the hearing on 9 May 2024.
13. [13]
    Ms Fogarty notified the Courthouse Southport by email on the morning of 9 May 2024 that Mr Parker was away working in India, that she was caring for her elderly sister-in-law with a terminal medical condition whose passing was imminent, and that the hearing should proceed in their absence.
14. [14]
    I am satisfied that the parties had before 9 May 2024 filed and exchanged all documentary evidence and submissions on which they wished to rely.

Facts

15. [15]
    Liability in this case is strenuously contested and I will come to that later.
16. [16]
    The essential facts are not in dispute.
17. [17]
    Ms Fogarty and Mr Parker, at the time visitors to Australia from New Zealand, became tenants of Ms Hughes in a fully furnished apartment in a residential building at Montgomery Avenue, Main Beach, Queensland, under a residential tenancy agreement.
18. [18]
    The tenancy was for a fixed term starting on 21 August 2019 and ending on 20 August 2020 at a rental of $700 per week.
19. [19]
    The Covid-19 pandemic struck in early 2020.
20. [20]
    Businesses were adversely affected and had to close, international borders began to close, and draconian quarantine and lockdown measures commenced to be imposed.
21. [21]
    In the face of universal crisis, the tenants informed the onsite manager of the property that Mr Parker’s work had shut down.
22. [22]
    In response, they were granted a 15% rent reduction on $700 per week reduced to $595.00 per week going forward.
23. [23]
    Ms Fogarty and Mr Parker also asked if they could vacate in July 2020 before the end of the lease.
24. [24]
    Ms Hughes through her managing agent responded that they would have to pay the lease out to 20 August 2020.
25. [25]
    The emails exchanged in that regard dated 29 May 2020 in content were as follows.

    1. Email of Ms Fogarty to Ms Hughes’ managing agent asking that they approach the owner ‘to see if it is possible to vacate 1 month earlier, say the 23^rd of July’.
    2. Email of Ms Hughes to her managing agent saying the tenants would have to pay out the contract until August 20 because she was unable to move herself and was locked into a fixed rental contract until August - but of course they could vacate in July ‘however the rent will need to be paid until the end of the contract on August 20’.
26. [26]
    In acceptance, Ms Fogarty and Mr Parker paid rent in full to the end of the fixed term of the lease.
27. [27]
    They left Australia for New Zealand on 23^rd July 2020.
28. [28]
    Ms Fogarty and Mr Parker asked for their bond back but were told it would be done in August 2020 after a final inspection of the property when Ms Hughes returned.
29. [29]
    That duly occurred.
30. [30]
    The bond is not in issue.
31. [31]
    Soon after leaving for New Zealand, Ms Fogarty discovered that the apartment had become occupied by guests of Ms Hughes from as early as 11 July 2020.
32. [32]
    That occurred without the tenants’ consent.
33. [33]
    Ms Fogarty and Mr Parker protested the fact and asked for the balance of rent to be repaid from that date.
34. [34]
    Ms Hughes refused.

Ms Hughes’ Defence

35. [35]
    Ms Hughes defence to her former tenants’ claim is gleaned from a variety of documents filed in the proceeding, to which I now turn.

Email 13 August 2020

36. [36]
    In response^[2] to an email dated 12 August 2020, Ms Hughes said that her tenants elected to pay rent in full to the end of the fixed term of the lease notwithstanding Covid-19 remedial legislation that may have entitled them to leave on better terms than they did, of which the tenants were apparently unaware.
37. [37]
    Ms Hughes said that the demand for a rent refund was an attempt by Ms Fogarty and Mr Parker to blame her for their ignorance.
38. [38]
    She said that ‘the tenants have not suffered any loss as a result of my actions’.

Response filed 11 January 2021

39. [39]
    In her Response filed on 11 January 2021, Ms Hughes says that the application is misconceived and without merit.
40. [40]
    She says amongst other things that there are no allegations on page 8 of the application that could support the claim.
41. [41]
    It is therefore necessary that I recite parts of what is stated on page 8 of the application. They have not essentially changed.
42. [42]
    Ms Fogarty and Mr Parker by their then agent Jacqui Hensleigh on their behalf said the following:

In the meantime Ms Fogarty found out that the apartment was being occupied by other people from the 11^th of July. Both Ms Fogarty and Mr Parker commented that since they had paid the rent up to the 20^th of August due to the owner not letting them out of their lease under Covid-19 and the fact that the owner had not released their bond to them upon vacation but was letting other people stay in the property, they believe their rent should be reimbursed from the moment another occupant took possession of the property.

At no time did anyone seek their approval or permission to stay in the apartment given that they were apparently responsible for it until the expiry of the lease. They are seeking reimbursement of $3,400 being 40 days rent based on a weekly rent of $595 and covering the period 12/07/20 – 20/08/20.

43. [43]
    Ms Hughes repeats that what occurred is that the applicants decided to vacate before the end of the lease and she required payment of rent for the entire lease period, the tenants agreed, and they paid the rent to the end of the tenancy.
44. [44]
    I will return later to the issue of whether the claim in the quoted respects discloses a cause of action.
45. [45]
    Ms Hughes also said that the Respondent at that time was the lessor’s agent, not the lessor, so it follows that the Tribunal could not make any orders against Ms Hughes.
46. [46]
    Two points arise in that connection which it is convenient to deal with now.
47. [47]
    First, Ms Hughes was subsequently named as, and is, a respondent in her own right, rather than through her agent, originally named in this proceeding as Jamesimone Pty Ltd, The Waratah Main Beach Apartments, 22 Montgomery Avenue, Main Beach, 4217.
48. [48]
    My perusal of the lease confirms that Ms Hughes’ agent was named in the tenancy agreement as James Hall – The Waratah Main Beach Apartments, 22 Montgomery Avenue, Main Beach, Qld 4217. Reference to Mr James and Mrs Simone Hall appear in later correspondence from the managing agent.
49. [49]
    Second, section 206(3) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘the RTRAA’/‘the Act’) provides that if details of the agent^[3] are given to the tenant in the tenancy agreement, then the agent stands in the lessor’s place for a prescribed proceeding and, for example –

    1. The proceeding may be taken against the agent as if the agent were the lessors; and
    2. The Tribunal may make an order against the agent as if the agent were the lessor.
50. [50]
    Nothing turns on the nomination.
51. [51]
    Elsewhere in correspondence from the managing agent there is reference to the managing agents as James and Simone Hall, Resident Building Managers, The Waratah Main Beach Apartments.^[4]
52. [52]
    For completeness, I note that Ms Hughes’ Response refers to other matters including the bond which was ultimately refunded to the tenants.
53. [53]
    She says that her agent went out of its (sic) way to assist the tenants with an agreed rent reduction and shipping their car back to New Zealand.
54. [54]
    So much is true and nothing turns on it.

Submissions filed/dated 20 March 2024

55. [55]
    Submissions numbered 1 to 3 by Ms Hughes in her submissions dated 20 March 2024 need not be repeated here.
56. [56]
    They relate to the history of the proceeding and two successful appeals by her against decision previously made by different adjudicators in circumstances where she was denied natural justice.
57. [57]
    See in that regard the Appeal Tribunal’s decisions in the matters of Hughes v Fogarty [2022] QCATA 190 per Member Dr J R Forbes; and Hughes v Fogarty & Anor [2024] QCATA 21 per Member M Lember.
58. [58]
    What is however pertinent is that the outcomes in the Appeals did not involve adjudication of the merits of the claim which on each occasion the Appeal Tribunal sent back for rehearing by a different adjudicator to the previous one.
59. [59]
    Submission numbered 4 of Ms Hughes repeats an earlier assertion that there is no proper factual basis for deciding against her.
60. [60]
    That submission concerns the question of liability which is the issue to be decided.
61. [61]
    Reciting Ms Hughes’ words:

    1. The applicants informed me that they were departing the property early and returning to New Zealand because of COVID travel restrictions.
    2. I had previously reduced the rent because of COVID and asked them to pay the balance of the rent owing.
    3. The applicants agreed to do so, without making any complaint or raising any issue at that time.
    4. Pursuant to that agreement – and not the lease – the applicants subsequently paid these monies in a lump sum when they departed the property.
    5. The applicants are now seeking to retrospectively set aside an agreement they willingly entered into and complied with.
    6. There can be no proper basis for doing so.
    7. The applicants removed all their belongings from the property, handed over the keys and the electricity account was transferred back into my name.
    8. The applicants then returned to New Zealand – and COVID travel restrictions made it impossible for them to come back to Australia.
    9. After the applicants abandoned the property, I was entitled (sic) to have someone look after it until I returned to the Gold Coast.
    10. The property had been rented furnished with artworks, a library and the large deck and verandah contained numerous plants that required looking after.
    11. The lease contained a special term requiring that to be done – which the applicants were unable to comply with after returning to New Zealand.
    12. Shortly before I leased the property the main doors to my building foyer were smashed in.
    13. I had been concerned since that time that my artworks may be stolen.
    14. My apartment is on the first floor and the deck and verandah are easily accessible.
    15. I also did not charge the applicants for the bond clean that cost $600 that they were obliged to pay for under the lease.
    16. The applicants who have been represented throughout these proceedings by an experienced real estate agent brought proceedings against my managing agent – not me.
    17. If the applicants thought they had an arguable case against me, they would have no doubt issued proceedings against me.
    18. They did not do so.
62. [62]
    Ms Hughes says that the proceedings should be dismissed for those reasons.
63. [63]
    She submits that ‘QCAT should put an end to this legal travesty, which has already dragged on far too long’.

Applicants reply submissions emailed 23 April 2024

64. [64]
    It is convenient to interpose and summarise the applicants’ reply to those of Ms Hughes’ submissions at this point.
65. [65]
    Ms Fogarty and Mr Parker emailed their submissions in reply to the Tribunal and Ms Hughes on 23 April 2024.
66. [66]
    Ms Fogarty and Mr Parker state the following.

    1. Ms Hughes illegally allowed ‘friends’ to move in and occupy the apartment after their departure on 27 June 2020.
    2. They did not agree to any variation of the lease to permit that.
    3. They left the keys and fobs and remotes and personal car keys on the kitchen bench as agreed with the managing agent.
    4. Their electricity account final reading was on 10 July 2020, having left on 27 June 2020.
    5. An online electricity account check showed that electricity consumed by occupants in that interval was $40 in their absence.
    6. That proves Ms Hughes allowed friends to occupy the apartment before 10 July 2020, not after 11 July 2020 as asserted.
    7. They did not abandon the property.
    8. They arranged with the managing agent to water the external plants on their behalf for which they gave the agent a $200 restaurant voucher in appreciation.
    9. The Waratah Main Beach Apartment Building is residential only, no holiday rentals or BnB letting is permitted.
    10. There are extensive security arrangements in place for the building.
    11. Security includes surveillance cameras, fencing on 3 sides, main door and lift door access only by electronic fob, the apartment has two locks on the entry door including a ‘dead bolt’ lock, and fire escapes require a key to enter the ground floor and the apartment floor.
    12. The apartment is directly above the Manager’s apartment below.
    13. In that regard ‘one would have to be Houdini to climb to the deck of the apartment and then have keys to enter, let alone gain entry through the main entrance’.
    14. At no time throughout the tenancy did Ms Hughes express any concern for the security of her artwork, let alone the library.
    15. Ms Fogarty and Mr Parker always informed the managing agent when they were away during the tenancy on extended overseas trips.
    16. The apartment was left immaculate as confirmed by inspection of the managing agent prior to their departure.
    17. They (the applicants) agreed a final wash down of outside windows and decks could come out of the bond for the ‘bond clean portion’.
    18. In an email (Attachment 8(b)) from the managing agent to Ms Fogarty dated 6 August 2020, James Hall said the following –

When we were on holidays in Noosa a month ago the owners had some friends stay at the unit for a while – I’m not even sure how long they were there as I didn’t meet them, my relief managers dealt with them.

When I got back from holidays, I emailed the owner saying that you & Kerry had the unit spotless with nothing damaged and everything ready for the full bond clean, which was always going to occur a couple of days before the owner arrived back from FNQ. Subsequently, the bond clean is happening on 19/08 as the owner confirmed last week to me that they’ll be back on 21/08. The owner agreed that if the cleaners, me, or even the owner find anything in the unit that’s been knocked or damaged then it has occurred when the owner’s friends were in the property.

19. In an email dated 24 August 2020, the managing agent confirmed with Ms Fogarty that the owner ‘has now returned to the property and has authorised the release of your full bond on a “without prejudice” basis’.
20. In summary:

Kerry and I have endeavoured to be nothing but great tenants (including payment upfront $18,000 being 6 month’s rent). We had a wonderful working relationship with the Apartment Manager and the various supporting documents prove this. The respondent Ms Hughes has acted illegally and improperly. We ask that there is a conclusive end to this Case once and for all, and the previous rulings in our favour stand with the Respondent finally reimbursing us $3,400.

Respondent’s further written submissions dated 30 April 2024

67. [67]
    Reiterating her submissions dated 20 March 2024, Ms Hughes added the following in her submissions dated 30 April 2024.

    1. She refers to abuse of process manifestly unfair to her, an unexplained 14-month delay after the Appeal Tribunal handed down its decision dated 8 July 2022 before she was notified of that decision by QCAT.
    2. She refers to the Tribunal’s statutory obligation to deal with matters ‘in a way that is accessible, fair, just, economical, informal, and quick’.
    3. As to the Applicants’ submissions dated 24 April 2024, Ms Hughes says that she is not married to a lawyer and never has been.
    4. Insofar as the Applicants assert a failure of the agent to advise about certain provisions in COVID legislation, that has nothing to do with Ms Hughes.
    5. The proceedings should be dismissed.
    6. She rejects the allegation that she acted illegally and says that the documents and admissions made speak for themselves.
    7. The Applicants abandoned the property and after doing so they could no longer fulfil their obligations under the lease.
    8. Ms Hughes was completely unaware the Applicants had taken several extended overseas holidays but that of itself is irrelevant.
    9. Other matters referred to by the Applicants are irrelevant and ‘the documents speak for themselves’.
    10. The Applicants commenced proceedings against the managing agent despite the ‘wonderful working relationship’, they were not asked to pay rent in advance and Ms Hughes has not acted ‘illegally or improperly’.

The RTRAA

Vacant possession

68. [68]
    Section 182(1) of the Act requires that a lessor ensure the tenant has vacant possession of the premises on the day the tenant is entitled to occupy the premises under the agreement.

Quiet enjoyment

69. [69]
    Section 183(1) of the Act requires that the lessor take reasonable steps to ensure the tenant has quiet enjoyment of the premises.

Non-interference

70. [70]
    Section 183(2) of the Act requires that the lessor or lessor’s agent must not interfere with the reasonable peace, comfort, or privacy of the tenant in using the premises.
71. [71]
    The standard terms of the tenancy agreement in paragraph 19 repeat those obligations.

Subsistence of obligations throughout tenancy

72. [72]
    By necessary implication, those obligations subsist throughout and until the end of a tenancy.

Entry only on notice

73. [73]
    By section 192 of the Act, a lessor (or agent) may enter the premises for specified purposes subject to notice pursuant to section 193 at times permitted by section 195.
74. [74]
    By section 197(1) of the Act, the lessor or agent may enter the premises under section 192(1)(f) to show them to a prospective tenant in certain circumstances.

Tenant’s obligation at end of tenancy

75. [75]
    By section 188(4) of the Act, a tenant must at the end of the tenancy leave the premises as far as possible in the same condition they were in at the start of the tenancy except for fair wear and tear.

Ending of residential tenancies

76. [76]
    By section 277 of the Act, a residential tenancy ends only in 1 of the following ways–

1.  the lessor and tenant agree, in a separate written document, to end the residential tenancy agreement;

2.  the lessor gives the tenant a notice to leave under section 326 and the tenant hands over vacant possession of the premises on or after the handover day for the notice;

3.  the tenant gives the lessor a notice of intention to leave under section 327 and hands over vacant possession of the premises on or after the handover day for the notice;

4.  if there is only 1 tenant for the agreement –

1.  the tenant gives he lessor a notice ending tenancy interest and hands over vacant possession of the premises in accordance with division 3, subdivision 2A; or

2.  the tenant dies;

5.  the tenant vacates, or is removed from, the premises after receiving a notice from a mortgagee or appointed person under section 317;

6.  the tenant abandons the premises and the period for which the rent has been paid has ended;

Note –

See division 8 for alternative procedures the lessor needs to follow in relation to abandonment of the premises.

7.  the tribunal makes an order terminating the agreement.

Note –

See division 6 for the making of termination orders by the tribunal.

Applications about breach of agreements

77. [77]
    By section 419(1)(a) of the Act, the section applies amongst other things if a lessor or tenant claim there has been a breach of a residential tenancy agreement.
78. [78]
    By section 419(2), the lessor or tenant may apply to the tribunal for an order about the breach.

Orders about breach of agreements – payment of money/compensation

79. [79]
    By section 420(1)(b) of the Act, the Tribunal may in that event make an order for the payment of money.
80. [80]
    By section 420(1)(e), the Tribunal may also make an order for compensation.

6-month limitation rule

81. [81]
    By section 419(3) of the Act, the application must be made within 6 months after the lessor or tenant becomes aware of the breach.
82. [82]
    By section 417(2), a reference in a provision to the making of an application about the dispute issue includes a reference to the making of a dispute resolution request to the authority (the Residential Tenancies Authority) about it.

Dispute resolution request prerequisite

83. [83]
    By section 416(1) of the Act, a lessor or tenant may only apply to a Tribunal about an issue other than pursuant to section 416(2) (an urgent issue as defined in section 415) if the applicant has first made a dispute resolution request about the issue and the conciliation process has ended without a conciliated resolution for various reasons.

QCAT Act

84. [84]
    Section 12(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) gives the Tribunal discretion to exercise minor civil dispute jurisdiction if a relevant person has applied to it to deal with the dispute.
85. [85]
    By section 12(4), relevant person means amongst other things (e) for a residential tenancy matter – a person who, under the RTRAA, may apply to the Tribunal for a decision in relation to the matter.
86. [86]
    Section 13(1) of the QCAT Act requires that the Tribunal make orders that it considers fair and equitable to the parties to resolve the dispute including, if considered appropriate, an order dismissing the application.
87. [87]
    Section 13(2)(b) provides that for subsection (1) for a claim that is the subject of a dispute under the RTRAA, the Tribunal may only make a final decision to resolve that dispute that it may make under that Act.
88. [88]
    Section 13(2)(b) of the QCAT Act does not in my opinion abrogate or qualify the general requirement in section 13(1) that the Tribunal make orders it considers fair and equitable to the parties in determining what orders it should make pursuant to the powers it has under the RTRAA.

Discussion

89. [89]
    I have carefully considered the defences raised by Ms Hughes.
90. [90]
    I am not critical of Ms Hughes for raising the plethora of defences to which she has referred. She is not a lawyer and was not represented in these proceedings by her former managing agent.
91. [91]
    None of the defences asserted by Ms Hughes have merit.
92. [92]
    The application as amended and claim of Ms Fogarty and Mr Parker do disclose a cause of action, contrary to what Ms Hughes asserts.
93. [93]
    The cause of action lies in breach, whether inadvertently or otherwise, by Ms Hughes of her tenants’ rights at the time by letting friends into occupation of the tenanted property before the tenancy had ended.
94. [94]
    Doing so breached the following of the tenants’ rights:

    1. The right even in absentia to vacant possession of the apartment until the fixed term of the lease ended by agreement.
    2. The right even in absentia to quiet enjoyment of the premises until the lease ended and to non-interference with that right.
95. [95]
    Allowing friends into occupation before the end of the tenancy also added risk to the tenants, such as the risk that Ms Hughes’ friends might, accidentally or otherwise, damage the premises, though there is no suggestion that actually occurred.
96. [96]
    Doing so potentially compromised the tenants’ obligation in absentia to return the property to Ms Hughes’ managing agent at the end of the tenancy in the same good condition as they were at the start of the tenancy, though it matters not that this did not eventuate.
97. [97]
    It also occurred without giving the tenants an entry notice as required.
98. [98]
    Ms Fogarty and Mr Parker have suffered loss and damage as a result.
99. [99]
    The measure of their loss and damage is quantified as the amount of the rent they paid to Ms Hughes for the period of occupation of the apartment by her friends.
100. [100]
     Ms Hughes’ friends stayed there rent free, at the expense of Ms Fogarty and Mr Parker.
101. [101]
     The tenancy agreement between Ms Hughes, Ms Fogarty and Mr Parker only ended by agreement in writing on the last day to which the latter paid rent, that is, the date of expiry of the fixed term of the lease.
102. [102]
     For their part, Ms Fogarty and Mr Parker were never in breach of any of their obligations under the lease.
103. [103]
     In particular –

     1. They did not break the lease.
     2. They were not in breach of the lease by leaving the furnished apartment with their personal belongings and handing back the keys to the managing agent on a date earlier than the date on which the fixed term of the lease expired to which they paid the rent on Ms Hughes’ insistence.

[I do not read clause 38 of the standard terms and conditions of the lease that provides that the tenant must return the keys to the lessor (or agent) at the end of the tenancy as implying that they may not be returned on an earlier date by arrangement.]

104. [104]
     The tenants’ vacating on a date earlier than the end date of the lease in those circumstances was not an act of abandonment of the tenancy as alleged by Ms Hughes.
105. [105]
     The right of continuing vacant possession by Ms Fogarty and Mr Parker of the apartment notwithstanding return of the keys to the agent continued in absentia until the expiry of the fixed term tenancy, to which date the tenants paid the rent.
106. [106]
     There is no substance to Ms Hughes’ contention that, by vacating and locking the apartment and leaving the keys with the managing agent, Ms Fogarty and Mr Parker compromised existing multilayered security of the apartment and building.
107. [107]
     There is no credible evidence that the security of the apartment and building was compromised either.
108. [108]
     The agent at all times had key access and control of the security and integrity of the apartment after the tenants returned the keys, that is, until the relieving agent let Ms Hughes’ friends into occupation without the consent of Ms Fogarty and Mr Parker.
109. [109]
     The rent refund claim therefore succeeds as a claim in compensation for lease breach in those circumstances.
110. [110]
     Further, it would in my opinion be unfair and inequitable for Ms Hughes to retain rent paid by Ms Fogarty and Mr Parker during the continuing tenancy in the period when Ms Hughes’ friends occupied the property as her guests at the tenants’ expense.
111. [111]
     Retention of the rent paid by Ms Fogarty and Mr Parker for that period unjustly enriched Ms Hughes in the circumstances.
112. [112]
     I have also considered whether a cause of action for reimbursement of the rent paid to the end of the tenancy lies in total failure of consideration for the rent paid from the date Ms Hughes’ guests occupied the apartment at the tenants’ expense.
113. [113]
     I conclude that the remedy for total failure of consideration is not available to Ms Fogarty and Mr Parker because at common law the failure would in effect discharge the contract whereas section 277 of the RTRAA makes plain that a residential tenancy in Queensland cannot end that way.
114. [114]
     There will be an order that Ms Hughes pay Ms Fogarty and Mr Parker the claim and filing fee.
115. [115]
     Ms Fogarty and Mr Parker should inform Ms Hughes by email of their current bank account details to which the funds in satisfaction of my orders are to be transferred.
116. [116]
     They ought to confirm with Ms Hughes whether it is an Australian or New Zealand based bank so that transfer arrangements can be made and I have endeavoured to cater for that in my drafting of orders set out on the first page of these reasons.
117. [117]
     Hopefully, the parties will not need to return to the Tribunal for clarification or renewal of the Orders I have made.