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Coelho de Barcelos & Anor v Yamanishi[2025] QCAT 37

Coelho de Barcelos & Anor v Yamanishi[2025] QCAT 37

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Coelho de Barcelos & Anor v Yamanishi & Anor [2025] QCAT 37

PARTIES:

ANDRE FELIPE COELHO DE BARCELOS

(applicant)

DEBORA CINTIA DE JESUS CASSIMIRO

(applicant)

v

MIA YAMANISHI

(respondent)

SEIYA YAMAGUCHI

(respondent)

APPLICATION NO/S:

Q8697-24

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

29 January 2025

HEARING DATE:

7 November 2024

HEARD AT:

Brisbane

DECISION OF:

Member Gaffney

ORDERS:

The Residential Tenancies Authority pay the rental bond as follows:

  1. 1.to Andre Felipe Coelho de Barcelos, $438;
  2. 2.to Debora Cintia de Jesus Cassimiro, $438;
  3. 3.to Mia Yamanishi, $1,362;
  4. 4.to Seiya Yamaguchi, $1,362.

CATCHWORDS:

CIVIL LAW – CIVIL TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where the parties were cotenants under a fixed term residential tenancy agreement (‘the lease’) – where the Applicants initiated an early termination of the lease other than as provided for under s 277 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘the Act’) (a ‘break lease’) – where the Applicants claimed the return of their contribution to the rental bond under s 137 of the Act together with moneys to be deducted from the Respondents’ contribution to the bond – where the Respondents sought the return of their contribution to the bond plus moneys to be deducted from the Applicants’ contribution to the bond – where s 137 applies only where the Tribunal has made an order about payment of a rental bond – whether the source of the Tribunal’s power to make an order about the bond is s 136D or s 430 of the Act  – whether an order made under s 430 is to be preferred in the circumstances of the case – whether an order under s 430 can be given effect under s 137 – whether the bond can be used as security for a successful claim between cotenants in light of s 111(1)(a)(ii) of the Act – where the parties exchanged messages prior to the execution of the lease –  whether the messages may be taken into account in making an order under s 430 – determination of liability as between the parties for break lease expenses, rent, stress and costs.

Bates v Horsnell [2011] QCATA 329

Capital & Harvest Pty Ltd v Bae [2023] QCATA 94

Fotia v Packer [2010] QCATA 98

Health Ombudsman v du Toit [2024] QCA 235

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355

Smolcic v Ray White Rockhampton [2021] QCATA 136

Acts Interpretation Act 1954 (Qld), s 14A(1)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 13(1), s 100, s 102

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 19(a), s 111(1)(a), s 124, s 135, s 136A(2), s 136B, s 136D, s 137, s 277, s 310, s 416, s 430

APPEARANCES & REPRESENTATION:

Applicant:

Andre Felipe Coelho de Barcelos, Debora Cintia de Jesus Cassimiro

Respondent:

Mia Yamanishi, Seiya Yamaguchi

REASONS FOR DECISION

Introduction

  1. [1]
    The parties were cotenants under a fixed term general tenancy agreement for a unit in Southport, commencing on 8 June 2024 and ending on 11 April 2025 (‘the lease’). The weekly rental was $900 ($128.57 per day), and the rental bond $3,600 (‘the bond’). Each party contributed $900 towards the bond.
  2. [2]
    The parties left the premises before the end of the fixed term, but without having brought about a valid termination of the lease under s 277 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘the Act’). That circumstance is known as a ‘break lease’.
  3. [3]
    The parties fell into dispute about their respective obligations to pay for break lease expenses, rent, cleaning and other items.
  4. [4]
    Ms Yamanishi claimed the whole of the bond.[1] The parties are seeking not only that their contributions towards the bond be returned to them, but also for additional moneys to be paid to them out of the opposing parties’ contributions to the bond.
  5. [5]
    The Applicants bring their claim against the Respondents, but not against the lessor. The Registry contacted the agent for the tenancy, Mantra Residential@Southport Central (‘Mantra’) prior to the hearing, and its representative confirmed that Mantra would not need to be heard at the hearing.
  6. [6]
    On 7 November 2024, I made directions for the matter to be determined on the papers.
  7. [7]
    I discuss the following issues in these reasons:
    1. the Tribunal’s jurisdiction to determine the dispute;
    2. whether the bond may be used as security for successful claims between the cotenants;
    3. how the tenancy ended;
    4. the issues arising from the end of the tenancy;
    5. communications between the parties prior to the execution of the lease;
    6. liability for break lease expenses;
    7. liability for rent between 10 August 2024 and 20 August 2024;
    8. liability for stress caused to Ms Yamanishi; and
    9. liability for costs.
  8. [8]
    In considering these issues, I have construed various provisions of the Act. In doing so, I have applied s 14A(1) of the Acts Interpretation Act 1954 (Qld), which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.

The Tribunal’s jurisdiction

  1. [9]
    In the initiating application, the Applicants nominated s 137 as the provision of the Act which entitles them to the return of their bond contribution, and to moneys from the Respondents’ contribution to the bond.[2]
  2. [10]
    Section 137 (‘Payment under tribunal order’) provides:
  1. (1)
    This section applies if—
  1. (a)
    a tribunal makes an order about payment of a rental bond; and
  2. (b)
    the authority is given a copy of the order.
  1. (2)
    The authority must pay the rental bond in accordance with the order.
  1. [11]
    The ‘authority’ referred to is the Residential Tenancies Authority (‘RTA’).[3] The RTA may only pay the bond after the Tribunal makes an order about how the bond is to be paid. That requires me to identify the source of the Tribunal’s power to make an order about payment of the bond.
  2. [12]
    There are in my view two sections of the Act which may empower the Tribunal to make an order about the payment of the bond in this case:
    1. s 136D of the Act; and
    2. s 430 of the Act.
  3. [13]
    I consider s 430 is both a valid and the more appropriate source of power to make the order in this case. To explain why I have reached this conclusion, I set out below the terms of s 136D and s 430, why they each could apply to this case, why s 430 is more appropriate, and why an order under s 430 can be put into effect under s 137, even though these sections are located in different parts of the Act.

Section 136D of the Act

  1. [14]
    Under s 136D (‘Tribunal order about payment of rental bond’), the Tribunal ‘may’ make any order about payment of the rental bond the Tribunal considers appropriate, having regard to:
    1. the efforts made by, in this case, the cotenants, to comply with their obligations under s 188(4) of the Act;[4]
    2. the lessor and cotenants’ compliance with the Act for the agreement[5] (meaning, the residential tenancy agreement);[6] and
    3. the evidence supporting any claim on all or part of the bond.[7]
  2. [15]
    For s 136D to apply, the case must come within one of the scenarios referred to in Subdivisions 2, 3 or 3A of Division 3 of Part 3 of Chapter 2 of the Act. Section 135(1), in Subdivision 3, describes the scenario applicable to this case: there is more than one bond contributor, and only some but not all of the contributors have applied to the RTA to be paid the bond (Ms Yamanishi in this case) and this has not been done jointly with the lessor.
  3. [16]
    The lessor and each of the bond contributors who did not apply for the bond (Mr Yamaguchi and the Applicants) were and are therefore “interested persons”[8] who were each then entitled to make a dispute resolution request to the RTA,[9] and, if the matter failed to resolve during the required conciliation process, were entitled to apply to the Tribunal for an order about the payment of the bond.[10]
  4. [17]
    In this case Mr Coelho de Barcelos was an interested person, made a dispute resolution request,[11] and applied, with Ms de Jesus Cassimiro, for an order about the payment of the bond. I am therefore satisfied that the Tribunal has power to make an order about the bond under s 136D.
  5. [18]
    However, by the use of the word ‘may’ in s 136D(2), the Act confers a discretion on the Tribunal not only as to what order to make, but as to whether to make an order about the bond at all.

Section 430

  1. [19]
    Section 430 of the Act (‘Disputes between cotenants or coresidents about rental bonds’) provides:
  1. (1)
    If there is a dispute between cotenants or coresidents about a rental bond for an agreement, any cotenant or coresident may apply to a tribunal for an order, and the tribunal may make any order it considers appropriate, to resolve the dispute.
  2. (2)
    The tribunal may not make an order under this section without giving the lessor or provider an opportunity to be heard on the application.

(emphasis added)

  1. [20]
    As this is a dispute between cotenants about a rental bond and the application has been made by two of the cotenants, section 430 applies to this case.
  2. [21]
    I note that s 430 does not actually state that the Tribunal may make an order about the rental bond, but that is implicit from the wording of the section. It would be an absurd result if a cotenant could apply to the Tribunal for an order under s 430 in a dispute about a rental bond, only to find the Tribunal lacked the power to make an order about the rental bond under that section.
  3. [22]
    In Fotia v Packer (‘Fotia’),[12] a decision of the President of the Tribunal,[13] which is the only published decision on s 430 which I have located, no issue was taken with the order for the payment of the bond made by an Adjudicator at first instance.
  4. [23]
    I conclude that s 430 empowers the Tribunal to make an order about the payment of the bond.

Why is section 430 the more appropriate source of power?

  1. [24]
    Section 136D is more applicable to disputes involving the lessor, which is not the case here. For example, under s 136D(2)(a)(ii), the Tribunal is required to have regard to the compliance of the lessor with the Act.[14]
  2. [25]
    As can be seen from the wording of s 430, the discretion to make an order is not regulated in the same way as s 136D – there are no matters which the Tribunal must ‘have regard to’. The order must be ‘appropriate’. ‘Appropriate’ is defined in the Macquarie Dictionary[15] to mean, relevantly, ‘suitable or fitting for a particular purpose, person, occasion etc.’ The order must also be one I consider to be fair and equitable to the parties.[16]
  3. [26]
    Given that the Tribunal is not obliged to make an order under s 136D, it is open to the Tribunal, and preferable, to make an order under s 430 about the payment of the bond.

Why an order under s 430 can be given effect under s 137

  1. [27]
    Section 137 is silent as to the provision under which the Tribunal is to make the order which is then put into effect by the RTA. There are indications in the Act which suggest that section 137 should apply only to orders under s 136D rather than s 430:
    1. s 137’s proximity to s 136D, and its location in the same subdivision of the Act (Subdivision 4 of Division 3 of Part 3 of Chapter 2), compared with the location of s 430 in Chapter 6 of the Act;
    2. s 124 of the Act, which states that the RTA ‘may pay a rental bond only under this Division’, being Division 3 of Part 3 of Chapter 2; and
    3. the heading to Subdivision 4, which reads ‘General process for payment of rental bond if interested persons for the payment’.
  2. [28]
    However, if s 137 were construed to be limited to facilitating payments pursuant to orders under s 136D, it would not only ignore the fact that this is not what is provided for in the section, it would also undo an obvious purpose of s 430 of the Act, which is to make an order how a bond should be paid as between cotenants. This is because there is no mechanism in the Act, other than s 137, by which an order under s 430 may be given effect by the RTA.
  3. [29]
    In my view s 137 is clear and unambiguous, and should not be limited in its operation.
  4. [30]
    I conclude that the RTA is required under s 137 to pay the bond to the parties in accordance with an order made under s 430.

Can the bond be used as security for successful claims between cotenants?

  1. [31]
    Before considering the merits of the parties’ claims, I consider whether the Tribunal would be empowered to make an order about the bond which would have the effect that one or more cotenants is to be compensated for the acts of another or other cotenants by adjusting the shares in which the bond is to be returned to them. In other words, can the bond be used as a source of security for successful claims between the cotenants, not merely as a source of security from which to compensate the lessor for any breach of the lease. It would seem to further the purpose of s 430, which is to make an appropriate order to resolve a dispute about a bond, to allow a cotenant to access another cotenant’s bond in a meritorious case.
  2. [32]
    However, this would appear to be contrary to s 111(1)(a) of the Act (‘Meaning of rental bond’), which provides that a rental bond is an amount paid by or for the tenant and ‘intended to be available for the financial protection of the lessor against the tenant breaching the agreement’ (emphasis added).
  3. [33]
    I note that in Smolcic v Ray White Rockhampton (‘Smolcic’),[17] it was stated by Judicial Member McGill SC,[18] considering s 137 of the Act:[19]
  1. [11]
    The rental bond is a form of security paid by the tenant to guard against a failure by the tenant to pay rent, or otherwise to perform the tenants’ obligations in respect of the tenancy.

…

  1. [12]
    Subject to any proper claim by the lessor, the bond remains what it has always been: the property of the tenant. Under the Act it has been paid to the RTA, as a sort of statutory trustee, but it simply provides a form of security, to the amount of the bond, for any legitimate claim brought by the lessor. Subject to any such claim, it remains the property of the tenant, and the tenant is entitled to the return of it.

(footnotes omitted)

  1. [34]
    In order for the Tribunal to be empowered to make an order compensating the Applicants or the Respondents from the other’s share of the bond, I must construe s 111(1)(a) as subject to s 430, that is, the bond is available as a form of security for the lessor, but may be used as a source of funds from which to pay a successful claim by a cotenant against another cotenant if the Tribunal makes an order to that effect under s 430.
  2. [35]
    In Project Blue Sky Inc v Australian Broadcasting Authority,[20] it was held by McHugh, Gummow, Kirby and Hayne JJ:

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

(footnotes omitted)

  1. [36]
    In my view, harmony can be given to both provisions by construing s 111(1)(a) as subordinate to s 430, particularly as s 111(1)(a) does not purport to regulate the exercise of power under s 430.
  2. [37]
    I note that Smolcic did not involve a dispute between cotenants, and reference was not made to s 430. I consider the decision is distinguishable in this case.
  3. [38]
    In Fotia, there seemed to be no objection in principle to the Tribunal making an order that the cotenant be allocated moneys from the other cotenant’s share of the rental bond; the difficulty was that it would have been improper to make that determination in the Tribunal’s minor civil disputes jurisdiction in the circumstances of that particular case.[21]
  4. [39]
    I conclude therefore that I am not precluded by the decisions in Smolcic or Fotia from making an order for a redistribution of the bond moneys amongst the cotenants as a result of the acts of another or other cotenants if that is the appropriate, and fair and equitable order to make.

How the tenancy ended

  1. [40]
    The end of the tenancy was initiated by the need for the Applicants, who are husband and wife, to return to Brazil, due to an increase in their student visa fees, and in the case of Mr Coelho de Barcelos, the need to assist his elderly parents.[22] Mr Coelho de Barcelos advised Mantra by email of 22 July 2024 of the Applicants’ intention to leave.[23]
  2. [41]
    Mantra advised by email dated 23 July 2024 that a break lease fee of $900 plus GST and an inventory fee of $155 was payable and that an advertising fee would be payable unless alternative tenants were found. Mantra enclosed a copy of an ‘Agreement to terminate fixed lease agreement’.[24] The amount of $1,130 was paid by the Applicants,[25] representing the break lease fee, advertising and inventory fee. The Applicants vacated the premises on 10 August 2024 and returned on 11 August 2024 to clean their ‘allocated areas’.[26]
  3. [42]
    The Respondents found a new place to live, and moved out on 9 August 2024[27] and were paying rent for their new tenancy from that date.[28]
  4. [43]
    The Applicants allege that it was agreed by all parties that they vacate the premises and hand back the keys on 12 August 2024.[29]
  5. [44]
    A professional cleaning service was engaged to clean the mattress, cushions, chairs and bathroom glass for $250, with the Applicants paying $125.[30]
  6. [45]
    Extra cleaning was carried out for $88, which was arranged by Ms Yamanishi, for which the Applicants are prepared to contribute $44.[31]
  7. [46]
    A new tenant moved in on 21 August 2024.[32] The Applicants say that Ms Yamanishi claimed that rent was required to be paid to 20 August 2024, although they say no confirmation of this was provided by Mantra.[33]
  8. [47]
    A ‘tenant invoice summary’ created by Mantra on 15 August 2024 sets out the invoices for the break lease fee, advertising, inventory and cleaning fees and records that as of that date rent was paid to 16 August 2024.[34]
  9. [48]
    Items at the property had to be replaced, at a cost of $48.50, for which the Applicants are willing to contribute half ($24.25).[35]

The issues arising from the end of the tenancy

  1. [49]
    The end of the tenancy gave rise to a number of issues as to who should be liable, and to what extent, for:
    1. break lease expenses of $1,310;
    2. rent from 10 August to 20 August 2024;
    3. additional cleaning of $88.00;
    4. items purchased at Kmart for $48.50;
    5. stress allegedly caused to Ms Yamanishi;[36] and
    6. costs of the application.
  2. [50]
    Items (c) and (d) are conceded by the Applicants. It is therefore appropriate that they pay to the Respondents a total $68.25 ($44 + $24.25), being half the cost of the items in question, such that Respondents should each have 50% of this amount deducted from their respective contributions to the bond.
  3. [51]
    I deal with each of the remaining issues in turn, but before doing so I discuss some important communications between the parties prior to the execution of the lease.

Communications prior to the execution of the lease

  1. [52]
    The following exchange of text messages took place between Ms Yamanishi and Ms de Jesus Cassimiro before the rental premises had been chosen:[37]

Ms Yamanishi:

How long are you planning to stay in Australia?

Ms de Jesus Cassimiro:

Our visa expires in August, but we will renew it for another 7 months

Ms Yamanishi:

Umm I see, yeah I think it’s good idea (sic) if we can do it

But we might leave here around October so you need to find new people and rent it to them or leave the place same time (sic), is it ok for you?

Ms de Jesus Cassimiro:

All right, it could be. If you find a place, tell me, we are looking for a place too.

I’ll let you know if I find it

Ms Yamanishi:

Okay

  1. [53]
    After the rental premises had been identified as suitable, the following exchange of text messages occurred between Ms Yamanishi and Mr Coelho de Barcelos:[38]

Ms Yamanishi:

Hi Andre, I heard from Seiya that you can get a new visa, is it correct?

Mr Coelho de Barcelos:

Hello Mia! Yes, the exchange agency said that I can apply for visa renewal even if I am 37 years old. As my visa will end in August, I will apply for renewal in July. But we will make the contract with the real estate agency without any problems.

(emphasis added)

Ms Yamanishi:

Great then we need to pay the bond to (sic) Real estate agent ASAP. Coz (sic) they can’t keep the room until we pay it…

  1. [54]
    In the first exchange, the Respondents, by Ms Yamanishi, conveyed that they might vacate early and that this is a risk that the Applicants would need to take. No definite assurance was given by the Applicants, by Ms de Jesus Cassimiro, that that would be acceptable. In the second exchange, the Applicants, by Mr Coelho de Barcelos, give an assurance that they will remain in the premises to the end of the lease. Ms Yamanishi indicates a willingness to proceed with the lease on the basis of that assurance.
  2. [55]
    To what extent may I take these exchanges into account in making an order under s 430? The decision in Fotia indicates that the discretion under s 430 is not constrained by matters relevant just to the tenancy itself.[39] If I am to make an appropriate order, in the sense of one that is ‘fitting’ to a case of a break lease, I consider it both valid and important to have regard to what the parties’ assurances and expectations were about how long the parties expected to stay at the premises.

Liability for break lease expenses

  1. [56]
    I turn now to the issue of break lease expenses. It is not in dispute that the situation in which the tenants found themselves was a break lease. At the time these events took place, compensation for break lease expenses could be sought by a lessor under ss 419 - 421 of the Act. However, it was open to the Applicants to apply to the Tribunal for a termination of their interest in the tenancy on the ground of excessive hardship under s 310 of the Act. If successful, that would have avoided liability for break lease expenses altogether. Unfortunately, that does not seem to be the advice the Applicants received.
  2. [57]
    The Applicants say they promptly paid the break lease expenses ‘anticipating’ that the Respondents would pay their fair share as they were given the option to continue residing at the premises if they wished.[40] They do not point to any agreement reached on that point, and the text messages filed by the parties do not reveal that there was one.
  3. [58]
    The Applicants say that the Respondents should contribute to the break lease expenses as they agreed to move out and were going to move out early in any event. As appears from the messages extracted above, this was what Ms Yamanishi stated the Respondents might do. The Applicants assert that Ms Yamanishi said that she had no intention of staying in the property because, in November 2024, she and Mr Yamaguchi would also return to her home country.[41] This is supported by a text message from Ms Yamanishi, however, she pointed out in that message, in effect, that she would have enough time by November 2024 to find someone to take over her interest in the tenancy.[42]
  4. [59]
    In my view, by initiating the break lease, the Applicants:
    1. departed from an assurance they gave the Respondents that they would stay for the whole term of the lease, which was material to the Respondents’ decision to enter into the lease with the Applicants; and
    2. deprived the Respondents of the opportunity to avoid the consequences of the break lease by ending the lease on their own terms; and
    3. failed to take steps to mitigate their loss by applying to the Tribunal for a termination order.
  5. [60]
    I am not satisfied on the evidence that the Respondents would have been required to pay some or all of the break lease expenses in any event.
  6. [61]
    I therefore take the view that it is not appropriate, nor fair and equitable, to require the Respondents to have a portion of the break lease expenses taken from their contributions to the bond.

Liability for rent from 10 August 2024 to 20 August 2024

  1. [62]
    The Applicants accept that rent of $514.29 (equating to four days) is payable to 20 August 2024[43] (from 16 August 2024) and are willing to pay a share proportionate to the shares in which rent was paid during the tenancy.[44]
  2. [63]
    That is not enough for the Respondents, who (in effect) say they were forced to find another place to live: they were unable to meet Mantra’s income requirements to stay on at the premises, and Mantra advised that all the tenants should move out at the same time.[45] That was not disputed by the Applicants. As a consequence, the Respondents had to pay two lots of rent from 9 August 2024.[46]
  3. [64]
    I accept the Respondents’ submissions. The Applicants’ actions are contrary to their assurance and have caused the Respondents loss in the duplication of rent. In those circumstances, it is appropriate, and fair and equitable, that the Applicants are liable for the whole of the rent from 10 to 20 August 2024, which amounts to $1,285.71. The Applicants have already paid $430 of that amount,[47] leaving an amount to be paid of $855.71, which should be borne in equal shares ($427.85 each).

Liability for stress caused to Ms Yamanishi

  1. [65]
    The Respondents submit that they were looking for the next tenant for the premises and a place to move to, but there was nothing available and they were facing a ‘crisis of livelihood’ and that this made for a lot of stress.[48] The exchanges of text messages between Ms Yamanishi and Mr Coelho de Barcelos point to a breakdown in the relationship to the point of hostility.
  2. [66]
    There is nothing in s 430 which precludes an order compensating a cotenant for disappointment and distress which results from the acts of another cotenant. But it must be appropriate for the Tribunal to make such an order. Whilst the end of the tenancy was no doubt stressful for Ms Yamanishi, I do not consider it appropriate that she should be compensated for that stress. I consider that stress caused by a break lease and a falling out between housemates at the end of a tenancy was (despite the assurance of Mr Coelho de Barcelos) an obvious risk that all of the tenants assumed when they agreed to live together.
  3. [67]
    Medical evidence of Ms Yamanishi’s medical condition was filed.[49] The Tribunal does not have jurisdiction to award damages for personal injury.[50]

Liability for costs

  1. [68]
    By ss 100 and 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party if the Tribunal considers that the interest of justice calls for such an order.[51] The claim by the Applicants has not been wholly successful. On the other hand, the Respondents failed to engage in conciliation. As the parties were so far apart I am not satisfied that the dispute would have resolved at conciliation. I am not satisfied that there are sufficient grounds to justify an award of costs in the interests of justice in all of the circumstances of this case.

Conclusion

  1. [69]
    For the reasons given I conclude that Ms Yamanishi and Mr Yamaguchi should have the whole of their contribution to the bond (each $900) returned to them. In addition, the RTA should pay to each of them $462, calculated as follows:

$68.25 (conceded items) + $855.71 (rent) / 2 = $462

  1. [70]
    The amount of $462 should be deducted from each of the Applicants’ bond contributions, leaving each an amount of $438 to be returned to the Applicants.

Orders 

  1. 1.The Residential Tenancies Authority pay the rental bond as follows:
  1. (a)
    to Andre Felipe Coelho de Barcelos, $438;
  2. (b)
    to Debora Cintia de Jesus Cassimiro, $438;
  3. (c)
    to Mia Yamanishi, $1,362;
  4. (d)
    to Seiya Yamaguchi, $1,362.

Footnotes

[1]  Applicants’ submissions filed on 16 September 2024 (‘Applicant’s original submissions’) [39].

[2]  The application is characterised by the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) as one that is not an ‘urgent application’, and a notice of unresolved dispute was filed to indicate that the dispute resolution requirements of s 416 of the Act, which apply to non-urgent applications, were satisfied.

[3]  Residential Tenancies and Rooming Accommodation Act 2008 (Qld), Schedule 2.

[4]  Ibid s136D(2)(a)(i).

[5]  Ibid s 136D(2)(a)(ii).

[6]  Ibid s 19(a).

[7]  Ibid s 136D(2)(a)(iii).

[8]  Ibid s 135(3)(b).

[9]  Ibid s 136A(2).

[10]  Ibid s 136B.

[11]  Which I infer from the notice of unresolved dispute which is addressed to him.

[12]  [2010] QCATA 98.

[13]  Alan Wilson J.

[14]  Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 136D(1)(a)(ii).

[15]  Macquarie Dictionary Publishers, 9th ed, 2023.

[16]  Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 13(1).

[17]  [2021] QCATA 136.

[18]  Cited with approval in Capital & Harvest Pty Ltd v Bae [2023] QCATA 94 [14].

[19]  Prior to the introduction of s 136D and other provisions introduced by the Housing Legislation Amendment Act 2021 (Qld).

[20]  [1998] HCA 28; (1998) 194 CLR 355 [70].

[21]  Which, as the Adjudicator found at first instance, concerned matters more suitable for determination in the Family Court: Fotia v Packer [2010] QCATA 98 [6].

[22]  Applicants’ original submissions [4]-[7].

[23]  Document 5 of the Applicants’ original submissions.

[24]  Ibid. A copy of the agreement to terminate was not filed.

[25]  Document 2 of the Applicants’ original submissions.

[26]  Applicants’ original submissions [19].

[27]  Respondents’ submissions filed on 14 October 2024 (‘Respondent’s original submissions’) [14].

[28]  Respondents’ supplementary submissions filed on 24 October 2024 (‘Respondents’ supplementary submissions’) [1].

[29]  Applicants’ original submissions [16].

[30]  Applicants’ original submissions [17]-[18].

[31]  Applicants’ supplementary submissions filed on 21 October 2024 (‘Applicants’ supplementary submissions’) [12].

[32]  Applicants’ original submissions [29].

[33]  Ibid [29].

[34]  Document M-23 of the Respondents’ original submissions.

[35]  Applicants’ supplementary submissions [15]-[16].

[36]  Respondents’ supplementary submissions, F[3].

[37]  Document M-1 of the Respondents’ original submissions.

[38] Document M-2 of the Respondents’ original submissions.

[39]  Fotia v Packer [2010] QCATA 98 [13]-[15].

[40]  Applicants’ original submissions [14].

[41]  Applicants’ original submissions [10].

[42]  Document 13 of the Applicants’ original submissions.

[43]  Which is the day before the new tenants moved in.

[44]  Applicants’ supplementary submissions [3]-[6]. A ledger provided as Document M-40 of the Respondents’ original submissions indicates rent was paid to 20 August 2024.

[45]  Respondents’ original submissions [9].

[46]  Respondents’ supplementary submissions [1].

[47]  Applicants’ supplementary submission [1].

[48]  Respondents’ original submissions (paraphrased) [12].

[49]  Documents M-41 and M-42 of the Respondents’ original submissions.

[50]  Bates v Horsnell [2011] QCATA 329 [17].

[51]  Health Ombudsman v du Toit [2024] QCA 235 [39].

Close

Editorial Notes

  • Published Case Name:

    Coelho de Barcelos & Anor v Yamanishi & Anor

  • Shortened Case Name:

    Coelho de Barcelos & Anor v Yamanishi

  • MNC:

    [2025] QCAT 37

  • Court:

    QCAT

  • Judge(s):

    Member Gaffney

  • Date:

    29 Jan 2025

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Bates v Horsnell [2011] QCATA 329
2 citations
Jump To
Cite 1 - [2011] QCATA 329
Cite 2 - [2011] QCATA 329
Capital & Harvest Pty Ltd v Bae [2023] QCATA 94
2 citations
Jump To
Cite 1 - [2023] QCATA 94
Cite 2 - [2023] QCATA 94
Fotia v Packer [2010] QCATA 98
4 citations
Jump To
Cite 1 - [2010] QCATA 98
Cite 2 - [2010] QCATA 98
Cite 3 - [2010] QCATA 98
Cite 4 - [2010] QCATA 98
Health Ombudsman v du Toit [2024] QCA 235
2 citations
Jump To
Cite 1 - [2024] QCA 235
Cite 2 - [2024] QCA 235
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
2 citations
Jump To
Cite 1 - [1998] HCA 28
Cite 2 - [1998] HCA 28
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
1 citation
Jump To
Cite 1 - (1998) 194 C.L.R 355
Smolcic v Ray White Rockhampton [2021] QCATA 136
2 citations
Jump To
Cite 1 - [2021] QCATA 136
Cite 2 - [2021] QCATA 136

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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