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Tuckett v Reig[2018] QCATA 7

CITATION:

Tuckett & Anor v Reig [2018] QCATA 7

PARTIES:

JILLIAN TUCKETT

(Applicant/Appellant)

 

and

PAULA DUNN

(Applicant/Appellant)

v

 

STEVEN REIG

(Respondent)

APPLICATION NUMBER:

APL130-17

MATTER TYPE:

Application and Appeals

HEARING DATE:

15 January 2018

HEARD AT:

Brisbane 

DECISION OF:

Justice Carmody

DELIVERED ON:

17 January 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

  1. The application for leave to appeal or appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL  –  MINOR CIVIL DISPUTE – where the parties disagree about the liability and quantum of rental compensation owing following early termination of tenancy agreement – where a break lease fee had already been paid – where apparent tribunal miscalculation as to the amount owing inconsequential – where there is no substantial injustice in need of correction on appeal and leave refused accordingly

APPEARANCES and REPRESENTATION (if any):

 

APPLICANT/APPELLANT

Jillian Tuckett and Paula Dunn

RESPONDENT

Leonie Jonas (property agent)

REASONS FOR DECISION

  1. [1]
    On 24 April 2017 the tribunal in Cairns resolved a residential tenancy dispute between the parties to this application for leave by ordering the applicants (tenants) to pay the respondent (lessor) $493.50 to be satisfied, in part, by releasing the $389 bond balance.
  2. [2]
    The applicants claim liability calculation errors led to a substantially unjust order being made instead of an award to them in the amount overpaid of $605.

The context

  1. [3]
    A fixed term general tenancy agreement (GTA) due to end on 21 July 2016 was extended on 29 August 2016 to 21 July 2017 at $410 per week rent. A bond adjustment of $40 brought the total amount of the lessor’s security to $1640.
  2. [4]
    The lessor granted the tenant’s request for early termination of the GTA on 13 February 2017 in consideration for payment of rent until a replacement tenant commenced occupation (compensation rent) plus $451 (break lease fee) to compensate the lessor for the agent’s reletting commission and sundry expenses (advertising ($100) and cleaning ($605)) payable out of the security bond. 
  3. [5]
    The tenants issued a notice of intention to leave without grounds on 1 March 2017 and gave up vacant possession on 16 March 2017. The new tenant moved into the premises on 24 March 2017.
  4. [6]
    The lessor originally claimed 2 weeks’ rent arrears of $716 ($820 minus a $104 ledger credit) but as the applicants were paying off rental arrears under an instalment plan the minor civil dispute issue for the tribunal to resolve was how much, if any, compensation rent for the period 17 March 2017 to 23 March 2017 was owed.
  5. [7]
    The tenants concede that they had to pay the break lease fee (not including GST) but disputed liability for any rental compensation.

The tribunal order

  1. [8]
    The tribunal order was made on the basis that GST was payable on the break lease and, therefore, the applicants owed a week’s rent (which was conceded) plus an extra $41 or $451.
  2. [9]
    The tribunal awarded compensation rent calculated at $493.50 and ordered $399 in compensation rent be paid from the bond (even though only $389 of the bond was left) but when all was said and done somehow managed to correctly conclude that the only amount payable out of the applicant’s own funds to settle their rental amount was $104.50.

The tenant ledger

  1. [10]
    The parties agree that the break lease fee was credited to the applicant’s rent account on 3 April 2017 and the entire rental bond was released to the property agent in two instalments of $1251 on 7 March 2017 and $389 on 26 April 2017. After adding this to the $222.50 paid on 15 May 2017 the agent claims that, according to the rental ledger, the applicants still owe $104.50 while they say they have paid more than $600 too much.
  2. [11]
    The ledger entries after that are:

3/04/2017

Rent

3/03/2017 to 3/03/2017 (Credit $359.00)

 

$95.00

   $23,984.85

7/04/2017

Rent

3/03/2017 to 3/03/2017 (Credit $386.50)

 

$27.50

$24,012.35

19/04/2017

Rent

03/03/2017 to 09/03/217 (Credit $76.50)

 

$100.00

$24,112.35

22/04/2017

Rent

10/03/2017 to 10/03/2017 (Credit $104.00)

 

$27.50

$24,139.85

26/04/2017

Rent

10/03/2017 to 16/03/2017 (Credit $83.00)

 

$389.00

$24,528.85

15/05/2017

Rent

17/03/2017 to 17/03/2017 (Credit $305.50)

 

$222.50

$24,751.35

  1. [12]
    The $389 bond transfer on 26 April 2017 is recorded as rent because there was no invoice to post against.
  2. [13]
    On my calculations by the 15 May 2017 the applicants’ overall tenancy liability for the break lease or reletting fee, compensation rent and contract cleaning had been reduced to $109.50, and not the $104.50 claimed by the agent, but whatever the shortfall the lessor is willing to waive it.
  3. [14]
    Although some mistakes have clearly been made by the parties and the tribunal in interpreting the ledger records the tenants have failed to demonstrate that the tribunal’s decision was affected by legal error or that the order needs correcting on appeal to prevent a substantial injustice. 
  4. [15]
    Accordingly, leave to appeal on this proposed ground is refused.

Were the parties denied the opportunity to mediate the dispute?

  1. [16]
    The transcript discloses that the applicants thought they were going to attend mediation prior to the hearing[1] but because the duty mediator was busy the tribunal decided to hear the matter even before the parties had any opportunity to “chat”. The applicants say that they were wrongly deprived of their mediation rights.
  2. [17]
    It is of course desirable for minor civil disputes to be settled “informally and quickly”[2] but it is doubtful whether a mediator would have affected the fairness of the outcome even though the distance between their respective positions was minimal. They had already attended the compulsory RTA conciliation required by s 416 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) and had not been able to reach an agreement (no doubt, because of the agent’s confusing ledger system) and were still dissatisfied after an item by item analysis of the books conducted on the hearing of the application. 
  3. [18]
    Leave to appeal on this ground is also refused.

Footnotes

[1] T1-2:35 to T1-3:5.

[2]QCAT Act s 3(b).

Close

Editorial Notes

  • Published Case Name:

    Jillian Tuckett and Paula Dunn v Steven Reig

  • Shortened Case Name:

    Tuckett v Reig

  • MNC:

    [2018] QCATA 7

  • Court:

    QCATA

  • Judge(s):

    Carmody J

  • Date:

    17 Jan 2018

Appeal Status

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

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