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Price & Price v McGrath Property Management[2023] QCATA 165

Price & Price v McGrath Property Management[2023] QCATA 165

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Price & Price v McGrath Property Management [2023] QCATA 165

PARTIES:

IAN PRICE AND SIGNE PRICE

(applicants)

v

McGRATH PROPERTY MANAGEMENT

(respondent)

APPLICATION NO/S:

APL281-22

ORIGINATING APPLICATION NO/S:

T604/22

MATTER TYPE:

Appeals

DELIVERED ON:

11 December 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

  1. Leave to appeal is refused.

CATCHWORDS:

APPEAL – GENERAL PRINCIPLES – leave to appeal – minor civil dispute – residential tenancy dispute – where tenants under residential tenancy agreement purported to terminate agreement for breach – where tenants vacated premises – where tenants did not give notice to remedy breach or of intention to leave in prescribed form pursuant to Residential Tenancies and Rooming Accommodation Act 2008 (Qld) – where agent did not advise tenants of failure to serve notice in prescribed form – where agent (for lessor) brought successful claim in Tribunal for compensation including lost rent – whether Adjudicator erred in failing to find there was agreement to end tenancy agreement – whether conduct of agent resulted in termination of tenancy agreement having been accepted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 277, s 301, s 325, s 327, s 362

Berry v Treasure & Anor [2021] QCATA 61

Jasmin Solar Pty Ltd v Trina Solar Australia Pty Ltd (2015) 331 ALR 108

Lobato v Gardian Real Estate Pty Ltd [2021] QCATA 130

Saxer v Hume [2022] QCATA 25

REPRESENTATION:

APPEARANCES:

Self-represented

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

Introduction

  1. [1]
    By an Application for leave to appeal or appeal filed on 20 September 2022 (the Appeal Application), the Applicants seek leave to appeal, and to appeal, a decision made by the Queensland Civil and Administrative Tribunal (the Tribunal) on 5 September 2022 (the Decision).
  2. [2]
    The Decision was made in a proceeding commenced by the Respondent to the Appeal Application (MPM) by an Application for minor civil dispute – residential tenancy dispute filed on 7 June 2022 (the MCD Application). MPM’s claim in the amount of $6,422.90 was brought, as agent for the lessor, for ‘Reimbursement to owner to recover invoice for rent arrears’. The claim arose out of the early termination of a Residential Tenancy Agreement (the tenancy agreement) between the Applicants (as tenant) and the lessor in respect of residential premises situated on the Gold Coast (the property) for a fixed term from 29 September 2021 to 27 September 2022 (the term).
  3. [3]
    The hearing of the MCD Application proceeded on 5 September 2022. By the Decision, the Tribunal (constituted by an Adjudicator) ordered that the Applicants pay to MPM the claimed amount of $6,422.90 within 28 days.

The Grounds of Appeal

  1. [4]
    The Grounds of Appeal set out in the Appeal Application are stated as follows:

From the very beginning and throughout our dealings with the Respondent all communication from the Respondent was informal and very casual either via email or text message. There was no use of common forms regarding, entry notices, repair etc. as otherwise dictated in the contract. Applicant therefore had a legitimate expectation that this form of communication was not only accepted but preferred by the Respondent. The Applicant and the Respondent agree that the conditions of break of lease were present so the current case only concern the question of the form of communication used when Applicant was terminating the lease and whether it should be Applicants [sic] responsibility – as tenants and as foreigners – that they followed a custom that the Respondent openly preferred and used throughout our dealings. The leased [sic] was terminated by letter attached to an email using the emailadress [sic] that had been used for communication by the Respondent. The casual communication from the Respondent continued after the termination letter was sent which naturally let us to believe that the termination letter was accepted. If Respondent wished to change the means of communication, they should have notified us immediately after receiving the termination letter as they have a legal obligation to minimise any costs. It was clearly in the Respondents [sic] economic interest not to notify us. Finally, Respondents [sic] new lease contract does not document rent shortfall it only documents that Respondent chose to prioritise an 18 months fixed lease.

The Orders sought

  1. [5]
    The Orders sought in the Appeal Application are stated as follows:

We, as Applicants, don’t believe we should be held financially responsible for following the means of communication consistently used by and initiated by the Respondent. We would therefore ask the tribunal to acknowledge the termination letter as a de facto termination.

Furthermore we don’t find that a rent shortfall of $100/week has been documented for the remaining time of our lease, since the new lease provided by the Respondent shows a negotiated fixed 18 months contract ending 14 September 2023 which exeeds [sic] our remaining lease period by 66%. The Respondent has therefore not suffered a loss. We would therefore ask the tribunal to disregard the claim of rent shortfrall [sic] put forward by the Respondent.

Finally, we would like for the tribunal to acknowledge that the rental bond of $6,400 which has already been paid to the Respondent as full and final settlement.

Leave to appeal is required

  1. [6]
    An appeal against a decision by the Tribunal in a proceeding for a minor civil dispute may be made only if the party has obtained the Appeal Tribunal’s leave to appeal.[1]
  2. [7]
    As to the Tribunal’s approach to an application for such leave, I respectfully adopt the following observations of Judicial Member DJ McGill SC:[2]

… As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29.

(citation omitted)

  1. [8]
    Further, as was said by Justice Daubney, President, in Berry v Treasure & Anor:[3]

There is no automatic right of appeal against minor civil dispute decisions. I respectfully adopt and endorse the following observations by the former President, Justice Alan Wilson, in Durrand v Karaolis:

The Queensland Parliament has made it clear, in the QCAT Act, that so far as possible minor civil disputes of this kind are to be resolved by a simple procedure which is speedy, inexpensive and final. That conclusion is reinforced by the fact that before a party can appeal a decision in this jurisdiction it must obtain leave from the Appeal Tribunal … In other words, there is not an automatic right to appeal these decisions; rather, an applicant must first establish that it has a right to a grant of leave.

(citation omitted)

MPM’s claim

  1. [9]
    At the hearing, MPM’s representative articulated the following components and calculation of the claim (which appear to be corroborated by the Statement headed ‘Tenant History’ which formed part of the documentation provided in support of the Application):
    1. a ‘break lease’ fee or ‘reletting cost’ of $1,650.00;
    2. an advertising fee of $250.00;
    3. a bond clean including carpet and flea control of $930.00;
    4. mowing, edging and green waste disposal of $88.00;
    5. water usage of $221.34;
    6. pool service, including chemicals, of $212.14;
    7. 30 days of rent to 17 March 2022[4] of $6,857.14;
    8. an additional sum for a shortfall of rent of $2,614.28 for the balance of the term (resulting from a shortfall of $100.00 per week based on the rent paid by the incoming tenant).[5]
  2. [10]
    After the Applicants’ bond of $6,400.00 was applied, the balance claimed was $6,422.90.

The Reasons for the Decision

  1. [11]
    The Adjudicator gave oral reasons for the Decision at the conclusion of the hearing.
  2. [12]
    The Adjudicator’s material findings were that:
    1. there was no agreement between the Applicants and the lessor (by MPM) that the tenancy agreement was ended early because there had been no ‘meeting of minds’;
    2. the Applicants had not lawfully ended the tenancy agreement because they had not served a Form 11 or a Form 13 as required under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the RTA);
    3. in the above circumstances, clause 7 of the tenancy agreement applied, and the Respondent was entitled to recover the amount claimed;
    4. with respect to the claimed loss of rent of $100.00 per week under the new tenancy agreement, the claim for the reduced rent was justified in the circumstances having regard to the lessor’s obligation to mitigate their loss under s 362 of the RTA.

Relevant provisions of the tenancy agreement

  1. [13]
    ‘Standard Term’ clause 36 of the tenancy agreement provided:
  1. This agreement ends only if –
  1. the tenant and the lessor agree in writing; or
  1. the lessor gives a notice to leave the premises to the tenant and the tenant hands over vacant possession of the premises to the lessor on or after the handover day; or
  1. the tenant gives a notice of intention to leave the premises to the lessor and hands over vacant possession of the premises to the lessor on or after the handover day; or
  1. a tribunal makes an order terminating this agreement; or
  1. the tenant abandons the premises; or after receiving a notice from a mortgagee under section 317, the tenant vacates, or is removed from, the premises.

Note: For when a notice to leave or a notice of intention to leave may be given and its effect and when an application for a termination order may be made to a tribunal, see the information statement.

  1. Also, if a sole tenant dies, this agreement terminates in accordance with section 277(7) or (8).

Note: See the information statement for details.

  1. [14]
    ‘Standard Term’ clause 44(1) of the tenancy agreement provided:

A notice under this agreement must be written and, if there is an approved form for the notice, in the approved form.

Note: See the information statement for a list of the approved forms.

  1. [15]
    ‘Standard Term’ clause 7 of the tenancy agreement provided:
  1. This clause applies if –
  1. this agreement is a fixed term agreement; and
  1. the tenant terminates it before the term ends in a way not permitted under the Act.
  1. The tenant must pay the reasonable costs incurred by the lessor in reletting the premises.

Note: For when the tenant may terminate early under the Act, see clause 36 and the information statement. Under section 362, the lessor has a general duty to mitigate (avoid or reduce) the costs.

Relevant provisions of the RTA

  1. [16]
    At the date of the tenancy agreement, s 277 of the RTA provided:[6]
  1. A residential tenancy agreement ends only in a way mentioned in this section.
  1. A residential tenancy agreement ends by written agreement of the lessor and tenant.
  1. A residential tenancy agreement ends if—
  1. the lessor gives a notice to leave the premises to the tenant; and
  1. the tenant hands over vacant possession of the premises on or after the handover day.

Notes—

1 See section 326 for requirements for the notice.

2 See sections 329 and 330 for requirements about the handover day.

  1. A residential tenancy agreement ends if the tenant—
  1. gives a notice of intention to leave the premises to the lessor; and
  1. hands over vacant possession of the premises on or after the handover day.

Notes—

1 See section 327 for requirements for the notice.

2 See sections 331 and 332 for requirements about the handover day.

  1. A residential tenancy agreement ends—
  1. if a tribunal makes an order terminating the agreement; or
  1. if the tenant abandons the premises.

Notes—

1 See chapter 5, part 1, division 6 for the making of termination orders by the tribunal.

2 See chapter 5, part 1, division 8 for alternative procedures the lessor needs to follow in the case of abandonment of the premises.

  1. A residential tenancy agreement ends if, after receiving a notice from a mortgagee under section 317, the tenant vacates, or is removed from, the premises.
  1. If a sole tenant dies, the residential tenancy agreement ends on the earliest of the following—
  1. 2 weeks after the tenant’s personal representative or relative gives the lessor or lessor’s agent written notice that the agreement ends because of the tenant’s death;
  1. 2 weeks after the lessor or lessor’s agent gives the tenant’s personal representative or relative written notice that the agreement ends because of the tenant’s death;
  1. the day agreed between the lessor or lessor’s agent and the tenant’s personal representative or relative;
  1. the day decided by the tribunal on application by the lessor or lessor’s agent.
  1. However, if no notice is given, or agreement or application made, under subsection (7), the residential tenancy agreement ends 1 month after the tenant’s death.
  1. Nothing prevents the withdrawal of a notice or application under subsection (7) so that a day may be agreed under subsection (7)(c).
  1. [17]
    Section 301 of the RTA provides:
  1. If the tenant believes on reasonable grounds that the lessor has breached a term of the agreement and the breach has not been remedied, the tenant may give a notice to the lessor requiring the lessor to remedy the breach within the allowed remedy period.
  1. This section does not apply to an agreement for a short tenancy (moveable dwelling).

Notes—

1 See section 325 for requirements for the notice.

2 See section 328 and schedule 2, definition allowed remedy period.

  1. [18]
    Section 325 of the RTA provides:
  1. A notice to remedy breach must be in the approved form.
  1. The approved form must provide for the notice—
  1. to be signed by or for the party giving the notice; and
  1. to include particulars of the breach; and
  1. to state the day by which the party to whom the notice is directed is required to remedy the breach.
  1. [19]
    Section 327 of the RTA provides:
  1. A notice of intention to leave premises must—
  1. be in the approved form; and
  1. be signed by or for the tenant; and
  1. identify the premises; and
  1. state the tenant intends handing over vacant possession of the premises to the lessor on the day stated in the notice (the handover day); and
  1. state—
  1. the ground on which the notice is given; or
  1. that the notice is given without ground; and
  1. unless the notice is given without ground—give particulars of the ground on which the notice is given.
  1. The handover day stated in the notice of intention to leave must not be before the end of the minimum notice period for the notice.
  1. A notice of intention to leave given for a periodic agreement is not ineffective because the handover day is not—
  1. the last day of a period of the tenancy; or
  1. another day the tenancy would have ended if this Act had not been enacted.

Note—

See also section 349(2).

  1. A notice of intention to leave given for a fixed term agreement is not ineffective merely because the handover day is earlier than the day the term ends unless the minimum notice period for the notice must not end before the day the term ends.
  1. Subsection (4) does not prevent a notice of intention to leave being given to a lessor at any time before the end of the term of the fixed term agreement.
  1. In this section—

minimum notice period, for a notice of intention to leave, means the notice period stated for the notice in schedule 1, part 2.

  1. [20]
    Section 362 of the RTA provides:
  1. This section applies to the lessor if the lessor incurs loss or expense because of—
  1. the tenant’s failure to hand over vacant possession of the premises after a termination order is made by a tribunal; or
  1. the tenant’s abandonment of the premises; or
  1. another act or omission of the tenant.
  1. This section applies to the tenant if the tenant—
  1. incurs loss or expense because of an order made by a tribunal or registrar declaring that the tenant abandoned the premises on a stated day; and
  1. contends that the premises were not abandoned or were only abandoned on a day after the day stated.
  1. The lessor or tenant—
  1. must take all reasonable steps to mitigate the loss or expense; and
  1. is not entitled to receive compensation for any loss or expense that could have been avoided by taking the steps.

The Applicants’ case at the hearing

  1. [21]
    In essence, the Applicants contended that they had brought the tenancy agreement to an end on 13 February 2022 (on one of two alternative bases, first, by agreement with MPM on behalf of the lessor or, second, by reason of breaches of the tenancy agreement by the lessor concerning the state of the premises including, amongst other matters, faulty electrical work and the ingress of water (in respect of which numerous complaints had been made to MPM and which were summarised in the Applicants’ letter to vacate of 13 February 2022).

The Applicants’ arguments on the Appeal Application

  1. [22]
    Having regard to the Grounds of Appeal contained in the Appeal Application, the Applicants’ primary submissions received on 18 November 2022, and the Applicants’ reply submissions, the Applicants rely, in essence, upon the following arguments:
    1. that, on the facts, MPM accepted the termination by the Applicants having regard to the Applicants’ letter purporting to terminate the tenancy agreement and MPM arranging for new open houses within a few days without notifying the Applicants that the termination was not accepted;
    2. that the (informal) ‘mode of communication’ adopted by the parties was understood by the Applicants as the preferred mode of communication and that, consequently, MPM was bound by this ‘custom’ or course of conduct;
    3. that MPM, as a professional rental manager, owed a ‘standard of care’ towards the Applicants as ‘non-professionals’ yet failed to advise the Applicants of the failure to comply with the formalities of terminating the tenancy agreement and the Applicants were misled into believing the termination was valid;
    4. with respect to the loss of rent, MPM had not suffered a loss because the new lease was for a fixed 18 months contract ending 14 September 2023 which exceeded the lease period on the tenancy agreement by 66%.

Addressing the Applicants’ arguments

  1. [23]
    In Lobato v Gardian Real Estate Pty Ltd, it was said by Judicial Member D J McGill SC:[7]

The problem confronting the tenants in this case arises from the fact that they had entered into a tenancy for a term, and they did not take the steps necessary to bring that lease to a premature end. As a matter of contract, a tenancy for a term binds both parties to continue the tenancy until the end of the term. In the Act however the legislature has provided certain mechanisms by which a tenancy for a term can be brought to a premature end. Relevantly, a tenant can apply to the Tribunal seeking an order that the tenancy end on the ground of excessive hardship, under the Act s 310, and if such an application is made, the Tribunal can make that order: the Act s 343. It is also possible of course for the parties to bring the tenancy to an end by agreement, but assuming that no agreement is achieved, an application to the Tribunal is necessary.

Was there an agreement that the tenancy agreement had ended?

  1. [24]
    The first issue to consider is the tenancy agreement had ended by written agreement between the Applicants and the lessor.
  2. [25]
    In my view, this issue involves a question of fact, namely whether the parties had reached a written agreement that the tenancy agreement had ended. The Adjudicator found that they had not. In my view, this finding was plainly open to the Adjudicator on the material and there is no reasonable argument that the Adjudicator erred in so finding.
  3. [26]
    In the Applicants’ letter of 13 February 2022, the Applicants set out comprehensive details of the various items in respect of which complaints had been made. The Applicants stated that the issues constituted ‘a disaster waiting to happen’. The Applicants stated, amongst other matters, “Regretfully, we see no other choice than to break lease and urgently look for accommodation elsewhere.”
  4. [27]
    The Applicants followed this up with an email from Mr Price to MPM sent on 16 February 2022. This email stated:

With reference to our letter sent Sunday 13 February 2022 we hereby give notice that we will vacate the property within the next 2 weeks - latest Tuesday 1 March 2022. We use funds $3,200 from our bond towards the two weeks rent.

  1. [28]
    The Applicants relied upon a series of text messages between Mr Price and the representative of MPM commencing on 16 February 2022 at 7:09 pm relating to the holding of an ‘open home’ at the premises. The messages from Mr Price included advising that they had ‘movers coming Tuesday’ and that they had ‘found a great place’. The responses from MPM included ‘Sad to see you go but hope you found a good home’ and ‘Don’t stress too much people know you are moving!’.
  2. [29]
    Ms Harris of MPM sent the following email to Mr Price (copied to Ms Price) on 25 February 2022 (at approximately 12:54 pm):

Further to our telephone conversations, we write to advise that the owner has not provided approval for ‘mutual termination’ of 30 Conifer Crescent, Broadbeach Waters.

We again remind you that the bond can not be used for payment of rent as this is a contravention of your tenancy agreement and the current arrears of $2285.71 (period 16.02.2022 - 25.02.2022) is required. Failure to do so may result in formal breach notice being remitted.

As you are aware we have had the property inspected by a Licenced Electrician to ascertain whether there is reason for concern and the Electrician has reported that the wiring, wiring connections, safety switch and switchboard have been checked and meet Electrical Safety Regulations 2002 and there is no evidence or reason to believe to the contrary.

Therefore, the standard ‘Break Lease’ terms and conditions of your tenancy agreement apply. As a reminder, these are:

-reimburse owner reasonable re-letting costs (usually 1 week’s rent plus GST)

-reimburse owner reasonable advertising costs (if incurred), and

-compensation for loss of rent (until a new tenant is found or until the end date of the agreement, whichever happens first)

-maintaining the upkeep of the property (until a new tenant is found or until the end date of the agreement, whichever happens first)

We appreciated that under s.362 of the Act, there is a duty to take reasonable steps to mitigate loss or expense for all parties. As you are aware the first open home as agreed by you was conducted on Wednesday 23.02.2022, we had 7 interested parties registered, 5 parties attended with 2 advising that the property was of further interest and would consider application. To date, neither have applied and we have reached-out but to no avail.

We acknowledge that a further open home is scheduled for tomorrow Saturday 26.02.2022 as agreed, currently no interested parties registered.

We encourage you to also promote the property to your social and professional contacts, referring them to the following link:

https://www.mcgrath.com.au/ R136659

Should you not be happy with the above please feel free to lodge a Form 16-Dispute Resolution via the RTA (see attached).

  1. [30]
    Ms Price responded to Ms Harris on the same day (at approximately 2:30 pm) by email in these terms:

We have received your email regarding the break of lease due to unsafe living conditions and owner breaches.

Firstly, according to legal standards you have accepted our termination due to the beforementioned reasons since you have not made any objections hereto before we moved out of the property. If you were of the legal opinion that our grounds for termination were not justified, you should have made that clear immediately and not wait for 12 days in which period we have frequently communicated with you and your colleague.

We have lived in an unsafe environment for 5 months due to electrical malfunctions which you have not been able to repair. It’s extremely disappointing and concerning that you wait until we have moved out of the property before you send out a licenced electrician. We continue to maintain that the property was unsafe during the time we lived there, and we refer to the document “Break of lease due to unsafe living conditions and owner breaches”.

Furthermore, you have left out our second reason for breaking the lease, which is extensive owner breaches.

If you choose to go against legal standards and good practice, we will raise a counterclaim for reimbursement of $150 per week that we have rented the house due to false marketing, breach of contract and extensive owner breaches. We refer in its entirety to our termination of lease.

  1. [31]
    Ms Harris further emailed Ms Price (copied to Mr Price) on the same day (at approximately 3:58 pm) stating:

We had verbal communications with Ian prior and advised the standard break lease procedure would be followed as we were not in a position to provide a response to the reasons provided until an Electrician reattended and investigated. We advised that a response would be provided upon receipt of the Electricians findings and until such time other than the standard break lease procedure there could be no acceptance or decline.

The decision to secure alternative accommodation prior to return correspondence, given Ian was well aware of the above, is a personal undertaking.

As per standard break lease procedure, we arranged respective marketing immediately whilst the above was actioned. Chelsea tried to arrange an open home for Saturday 19.02.2022 however, this was declined and Wednesday 23.02.2022 requested and actioned accordingly.

We note, you have not breached the owner previously, nor have you remitted the required F11-Notice to Remedy Breach on the occasions listed in your email. In addition, a licenced electrician was engaged for all attendances to the property, where an electrical concern was raised and electrician required. We note, all maintenance items when reported were actioned by the owner in a timely fashion.

The owner is not obligated to accept nor do they agree to early termination, as we are facilitators of the owners instructions, should you wish to action further, we can only recommend that you follow the required process via F16-Dispute Resolution.

Our owner instructions are clear and we are committed to mitigating loss for both parties as quickly as possible.

  1. [32]
    Ms Price responded to Ms Harris’ email the same afternoon (at approximately 5:28 pm) as follows:

First of all, Ian denies that a telephone conversation of the kind that you are describing has ever taken place. It would also be highly unprofessional and irregular to have such a conversation over the phone when you receive a written termination.

Regarding notices I refer to my previous email and the termination letter that clearly outlines the dangerous living conditions and the owner breaches including dates and actions taken (not taken).

I disagree that the decision to secure alternative accommodation is a personal undertaking since we had made McGrath aware of our concerns for months prior to the termination without the electrical issues being handled and repaired. It is therefore certainly not a personal undertaking but in contrary a necessary undertaking caused by McGrath and the owner’s passivity and unwillingness to make us feel safe in the house.

Please provide the following documentation:

A document signed by a Licenced Electrician (including Name, Certification details, Queensland Licence number and contact details) that states the following:

  1. It is safe, in accordance with Electrical Safety Regulations 2002 and standards when water runs out of electrical sockets while electricity is turned on.
  1. It is safe, in accordance with Electrical Safety Regulations 2002 and standards when electrical appliances melt due to extreme heat caused by electric malfunction.
  1. It is safe, in accordance with Electrical Safety Regulations 2002 and standards when the globes in a rangehood keeps exploding with a large bang and a flash resulting in circuit breakers cutting off the power to the property.
  1. [33]
    The Adjudicator’s reference to a ‘meeting of the minds’ is a reference to one of the requirements for formation of a contract that there must be ‘consensus ad idem’, that is, whether ‘person X has manifested consent to agree with Y’.[8] The question is whether the lessor, by MPM, manifested consent to agree with the Applicants that the tenancy agreement was at an end, for the purposes of s 277(1) of the RTA.
  2. [34]
    In my view, the Adjudicator correctly found that there was no meeting of the minds (or consensus ad idem). In the 13 January 2022 letter, the Applicants did not seek express agreement from the lessor that the tenancy agreement was at an end. Rather, the Applicants’ language was that it was a ‘break lease’ situation. Further, MPM’s conduct in relation to arranging an open home (for the purpose of seeking to find a new tenant) was consistent with the lessor’s statutory obligation (under s 362 of the RTA) to take all reasonable steps to mitigate their loss. I consider that there is no reasonable argument that the Adjudicator erred in finding that there was no meeting of minds.

The course of conduct between the Applicants and MPM

  1. [35]
    With respect to the argument referred to in paragraph 22(b) above, I consider that the manner of the communications between the Applicants and MPM do not advance the Applicants’ case. The Adjudicator found (and it is not disputed) that the Applicants did not serve a Form 11 or Form 13 (being the respective prescribed forms under the RTA). In my view, the informality of communications passing between the Applicants and MPM is not material to the failure of the Applicants to a notice in the prescribed form which is mandated by the RTA. Leaving aside the issue of whether any conduct of MPM could have amounted to a waiver of the requirement to serve a notice in the prescribed form (or an estoppel against the lessor relying upon the failure to serve such a notice), I am of the view that the conduct of MPM did not provide any arguable basis upon which such an argument could prevail. Clause 44 of the tenancy agreement made clear that a notice under the agreement must be written and, if there is an approved form for the notice, in the approved form. The conduct of MPM did not suggest otherwise.
  2. [36]
    The argument referred to in paragraph 22(c) above is related to the above argument. At all times, MPM was acting on behalf of the lessor. The Applicants have not articulated a case to support the contention that MPM owed them a ‘standard of care’. I consider that there is no arguable basis upon which it can be concluded on the material before the Adjudicator (as is necessarily implicit in the Applicants’ submission) that MPM had some positive obligation to advise the Applicants that they had failed to comply with the relevant notice requirements under the RTA, particularly given the terms of clause 44 of the tenancy agreement.

The claim for lost rent

  1. [37]
    With respect to the argument referred to in paragraph 22(d) above, I find that there is no arguable basis for such a finding. The shortfall in rent was calculated over the period comprising the balance of the original term of the tenancy agreement. In my view, that was the proper period for calculation of the amount of compensation for lost rent. Given the period of the claimed loss, I consider that the fact that the new tenancy agreement extended past the term of the original tenancy agreement did not diminish the amount of the recoverable compensation that had been claimed.

Conclusion

  1. [38]
    For the reasons set out above, I am not satisfied that there is a reasonable argument that the Decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or that the Appeal Application raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.
  2. [39]
    Leave to appeal is refused.

Footnotes

[1]Subsection 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). For completeness, given the Grounds of Appeal, leave to appeal would have been required in any event pursuant to s 142(3)(b) of the QCAT Act.

[2]See Saxer v Hume [2022] QCATA 25, [2].

[3][2021] QCATA 61, [14].

[4]The property was relet on 18 March 2022.

[5]At the hearing, MPM’s representative stated that the correct figure should have been $2,757.14 but the lower amount only was pressed.

[6]I note that s 277 was subsequently replaced (on 20 October 2021) and now provides that a residential tenancy agreement ends when, relevantly, the lessor and tenant agree, in a separate written document, to end the residential tenancy agreement (s 277(a)).

[7][2021] QCATA 130, [16].

[8]Jasmin Solar Pty Ltd v Trina Solar Australia Pty Ltd (2015) 331 ALR 108, [2015] FCA 1453, [80]-[88] (Edelman J).

Close

Editorial Notes

  • Published Case Name:

    Price & Price v McGrath Property Management

  • Shortened Case Name:

    Price & Price v McGrath Property Management

  • MNC:

    [2023] QCATA 165

  • Court:

    QCATA

  • Judge(s):

    Member Lumb

  • Date:

    11 Dec 2023

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
Berry v Treasure [2021] QCATA 61
2 citations
Jump To
Cite 1 - [2021] QCATA 61
Cite 2 - [2021] QCATA 61
Jasmin Solar Pty Ltd v Trina Solar Australia Pty Ltd (2015) 331 ALR 108
2 citations
Jump To
Cite 1 - (2015) 331 ALR 108
Cite 2 - (2015) 331 ALR 108
Jasmin Solar Pty Ltd v Trina Solar Australia Pty Ltd [2015] FCA 1453
1 citation
Jump To
Cite 1 - [2015] FCA 1453
Lobato v Gardian Real Estate Pty Ltd [2021] QCATA 130
2 citations
Jump To
Cite 1 - [2021] QCATA 130
Cite 2 - [2021] QCATA 130
Saxer v Hume [2022] QCATA 25
2 citations
Jump To
Cite 1 - [2022] QCATA 25
Cite 2 - [2022] QCATA 25

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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