Dalco Realty Pty Ltd v Chun
[2024] QCATA 123
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- Dalco Realty Pty Ltd v Chun[2024] QCATA 123
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Dalco Realty Pty Ltd v Chun[2024] QCATA 123
Dalco Realty Pty Ltd v Chun[2024] QCATA 123
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Dalco Realty Pty Ltd v Chun [2024] QCATA 123 |
PARTIES: | dalco realty pty ltd (applicant/appellant) v sungmin chun (respondent) |
APPLICATION NO/S: | APL 118-23 |
ORIGINATING APPLICATION NO/S: | Claim 154/22 Bundaberg |
MATTER TYPE: | Appeals |
DELIVERED ON: | 18 November 2024 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: |
|
CATCHWORDS: | LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – REGULATION OF RENT INCREASES – Lease agreement for a term – whether valid term for rent increase – whether increased rent payable under agreement to terminate tenancy agreement early – whether tenancy agreement terminated – whether obligation to pay increased rent after termination – former tenant entitled to recover overpaid rent Residential Tenancy and Rooming Accommodation Act 2008 (Qld) s 91, s 277 Fogarty v Hughes [2024] QCAT 273 Hiscox v P B G Realty [2019] QCATA 112 Kiriri Cotton Co v Dewani [1960] AC 192 Lobato v Gardian Real Estate Pty Ltd [2021] QCATA 130 |
APPEARANCES & REPRESENTATION: | 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
- [1]On 23 November 2022 the respondent filed in the Tribunal an application for a minor civil dispute – residential tenancy dispute, naming as respondent the appellant.[1] The respondent sought payment of most of the rental bond from the Residential Tenancy Authority (“RTA”), and to recover what was described as wrongly paid increased rent, although the reasons for the claim also sought in effect a declaration that no more money was owing, and compensation for difficulties caused to the respondent, in no defined amount.
- [2]On 24 March 2023 the application came on for hearing before a Member in Bundaberg.[2] At the end of the hearing the Member ordered that the bond be paid, as to $1,360 to the respondent and as to $140 to the appellant, and that the appellant pay the respondent $1,178.76 as overpaid rent, and the filing fee of $130.17. The Member also said that the respondent was not liable to pay rent for the period after he vacated the property. The Member gave written reasons for the decision.
- [3]On 20 April 2023 the appellant filed in the Tribunal an application for leave to appeal. Because the proceeding was a type of minor civil dispute, the appellant requires the leave of the Appeal Tribunal in order to appeal.[3] Leave is usually only granted where there is a reasonable argument that there is an error which should be corrected and an appeal is necessary to correct a substantial injustice to the applicant,[4] although it may also be granted when the application raises an issue of general importance on which the decision of the Appeal Tribunal would be useful.[5] The requirement for leave to appeal reflects a legislative intention that ordinarily parties to a minor civil dispute will be confined to one judicial determination of the dispute.
Background
- [4]The parties entered into a General Tenancy Agreement in Form 18(a) dated 2 December 2021 in respect of residential premises for a fixed term from 1 December 2021 to 30 November 2022, at a rent of $425 per week. The tenancy and the agreement were subject to the Residential Tenancy and Rooming Accommodation Act 2008 (Qld) (“the Act”). Part 3 of the agreement included a number of special terms, one of which said: “A rent review of the property will be conducted every six (6) months – 30/5/2022.” The agreement however contained no information as to the basis on which the review was to occur.
- [5]The agreement also contained the following terms:
- 2Terms of a general tenancy agreement:
- [(1) and (2) refer to the standard terms of the agreement, and the Act.]
- (3)The lessor and tenant may agree on other terms of this agreement (special terms).
- (4)A duty or entitlement under the Act overrides a standard term or special term if the term is inconsistent with the duty or entitlement.
- (5)A standard term overrides a special term if they are inconsistent.
- 10Rent Increases – ss 91 and 93
- [(1) – (4) dealt with increases for a periodic tenancy.]
- (5)However, if this agreement is a fixed term agreement, the rent may be increased before the term ends only if a special term –
- (a)provides for a rent increase, and
- (b)states the amount of the increase or how the amount of the increase is to be worked out.
- (6)A rent increase is payable by the tenant only if the rent is increased under this clause.
- [6]The appellant emailed the respondent on 27 May 2022 stating relevantly “in accordance with your lease there will be an increase to $550 per week, effective from 30/05/2022.” In his application the respondent stated that he made a dispute resolution request about this to the RTA, and that body recommended that the parties negotiate. The respondent said that there was an agreement with the appellant under which the tenancy would be terminated by agreement, he would pay the increased rent until he moved out, but that he would not have to pay anything else.
- [7]This was recorded in an exchange of emails between a friend of the respondent with better English who was helping him, and a director of the appellant. On 26 July 2022 the friend of the respondent emailed the appellant as follows:
I am writing a letter to confirm what we discussed last week and yesterday regarding tenancy at [address] on behalf of the residents. I initially informed you last week on 20 July 2022 that if the landlord will kindly agree we would like to break the lease under mutual agreement and vacate the property on 5 August 2022. Also, with regards to the rent increase, I have suggested that, if the landlord will agree, we would like to settle the amount at the rate of $425 per week for two months from 1 June 2022 and one week rent of $550. Yesterday you have informed me that the landlord is happy to break the lease without any extra costs (ie re-letting fees, cost for advertising etc) but he still wanted the rent amount to be calculated as $550 per week from 30 May 2022. I have asked for you to send me an exact calculation of the overall amount that the resident … has to pay to settle the account in the landlord’s view. I believe that the calculation will be similar to what I have estimated below:
$550 x 10 weeks (from 30 May 2022 to 8 August 2022) = $5500.
To subtract 3 days worth of rent ($550 /7 x 3) = $235.71
$5500 - $235.71 = $5,264.29
Amount that has been paid so far from the resident since 30 May 2022
$425 x 8 weeks = $3400
As discussed, I will wait for you to send me the exact amount based on your records soon. Meanwhile, I will discuss the details of our discussion with the residents … and ask how they want to proceed.
- [8]Later the same day the appellant emailed the respondent’s friend as follows:
Please be advised there is no break lease fee or advertising.
Rent calculated on a daily basis 31 May to 5 August 2022 (66 days)
$550 per week $78.57 per day times by 66 days = $5185.62
425 per week $60.71 per day times by 66 days = $4006.82
Amount owing $1178.76.
- [9]In the application to the Tribunal the respondent said that “The Mutual Agreement was that there would be no additional fees to terminate the lease, and I was to pay the difference between the normal rent and the increased rent for the period that I stayed in the property until I found a new place to rent.” He claimed that on 20 September 2022 he received a demand for rent for the period the property was vacant after he moved out. During the hearing the director of the appellant submitted that, in accordance with the usual practice, if a tenant is allowed out of a lease early, the tenant continues to be liable for the rent until someone takes over the premises.[6] He claimed that “the understanding was … that the rent had to be paid up until the period of time until somebody took over the rent.”
- [10]As I read the transcript, these propositions were put to the respondent by means of an interpreter (p 7) although it does not appear that the respondent made any specific response to them. It is not at all clear that he was given the opportunity to do so. The friend who had assisted with the negotiations sought to be heard at this stage, on the basis that he was the one who had negotiated with the agent, but the Member refused to hear him, saying that there should have been a statement from him filed ahead of the hearing: p 7, p 8.
- [11]In my opinion the refusal to hear the friend as a witness was not correct, and deprived the Tribunal of the advantage of possibly relevant evidence as to what happened next. The problem here is that the exchange of emails quoted above did not in themselves amount to a compromise of the dispute. The email from the friend to the appellant contained an offer, but indicated that the amount payable by the respondent was not finalised. An amount was proposed, but it was subject to consideration of “the exact amount based on your records”. The reply was therefore an offer. From what was stated in the claim, and indeed from the attitude of the appellant, it was accepted, but it would have been better if there had been direct evidence about this.
Reasons of the Member
- [12]The Member in written reasons pointed out that the application was not to challenge as unreasonable the rent increase under the Act s 92, but to challenge the validity of the increase based on the construction of the agreement. The Member referred to the sequence of events, and the exchange of correspondence, but did not make any findings as to the effect of this exchange. His decision turned on the proposition that the special condition in the agreement was insufficient to satisfy the requirements of Clause 10(5). Hence the attempt to increase the rent was invalid. He found that the tenancy agreement was terminated by mutual agreement, and said that an agreement to bring the tenancy to an end may include some compensation to the owner, but here the reason was the invalid increase in the rent. His approach appears to have been that, because the rent increase was invalid, the following agreement was also ineffective to increase the rent. He therefore ordered the refund of the additional rent, that the bond be refunded to the respondent apart from an amount for cleaning the unit, ordered the appellant to pay the filing fee, but rejected claims for the cost of moving, and time spent in negotiation and in the conduct of the application.
Appellant’s submissions
- [13]The grounds of the proposed appeal were stated to be that no consideration was given to the terms of the earlier agreement from the dispute resolution process; that the tenant was to be responsible for the rent up until a new lease commenced; that the matter, as a rental increase dispute for a fixed term agreement, must be dealt with before the agreement ends; and that the tenancy was not terminated by agreement on 5 August 2022, the tenants remained in the property past that date. The appellant sought that the respondent pay compensation for the period of the vacancy period in the sum of $3,242.65, as well as the cleaning fee of $140.
- [14]In an attached document the appellant submitted that the rent increase occurred in accordance with guidelines issued by the RTA. It was submitted that the matter proceeded to a dispute resolution process as a rent increase dispute, and RTA records showed that the matter was resolved, and the terms of the agreement were the accepted industry standard where the tenant was responsible for the rent up until the commencement of the new lease. It was claimed that during the negotiations the respondent’s friend was told that the landlord would not accept the rent at the old rate, nor would he terminate the tenancy on 5 August. It was also submitted that the keys were not returned until 8 August 2022. The appellant submitted that this was a rental increase dispute, and in those circumstances the application could not be made to the Tribunal once the agreement ended.
- [15]In written submissions filed on 17 August 2023 the appellant also submitted that the termination by mutual agreement must be in writing, which was not the case here. It was submitted (again) that there was no written or verbal agreement with the respondent to terminate the lease on 5 August 2022, and that the lease in fact terminated on 9 September 2022, in accordance with the resolved dispute negotiation with the RTA. It was suggested that the failure of the respondent to claim the return of the bond earlier was inconsistent with termination in early August. It was also submitted that the application was out of time because it had to be brought under the Act s 92.
Consideration
- [16]No submissions in writing have been filed by or on behalf of the respondent. He hardly needed to, since almost every proposition of law in the submissions made on behalf of the appellant was wrong or inapplicable. To deal first with the appellant’s abortive attempt to increase the rent, rent increases are governed by the Act s 91, which at the relevant time provided (relevantly):
- (1)This section applies to increases in rent for the following—
- (a)a periodic agreement;
- (b)a fixed term agreement, during the term of the agreement.
- (2)If the lessor proposes to increase the rent, the lessor must give written notice of the proposal to the tenant in the way required by this section.
- (3)The notice must state—
- (a)the amount of the increased rent; and
- (b)the day from when the increased rent is payable.
- (4)The day stated must not be earlier than 2 months after the notice is given.
- (5)Subject to an order of a tribunal under section 92, the increased rent is payable from the day stated in the notice, and the agreement is taken to be amended accordingly.
- (6)However, if the agreement is a fixed term agreement, the rent may be increased before the term ends only if the agreement—
- (a)provides for a rent increase; and
- (b)states the amount of the increase or how the amount of the increase is to be worked out.
- (7)A rent increase is payable by the tenant only if the rent is increased under this section.
- [17]The agreement in this case was a fixed term agreement, so the rent could be increased only if subsection (6) were complied with. I agree with the Member that in the case of this agreement, the special term as drafted did not comply with s 91(6)(b). Merely to say that the rent will be reviewed after six months states nothing about how the amount of the increase is to be worked out. The appellant argued that “reviewed” meant a “market review”, but that outcome can be achieved only by implication. It may be that at common law a reference to a rent review would imply a “market review”, although there are other ways rent can be reviewed: for example, it could be reviewed to allow for changes in the consumer price index during the period, either for the whole index or just for the housing sector of the index.[7] I expect that, to avoid uncertainty, it would be necessary to be specific about a comparable market for the rental property, by reference to which the rent is to be reviewed.[8]
- [18]I have however not researched the question of whether such an outcome would be implied at common law, because what is clear is that s 91(6)(b) requires that how the amount of the increase is to be worked out be stated. That is a requirement as to the express terms of the agreement. Plainly that is not what occurred with this lease. Indeed, I cannot understand how anyone could think that the special term in this agreement could meet the requirements of the Act s 91(6)(b). It follows that the effect of the section is that the appellant had not just failed to comply with the requirements to increase the rent, it was prohibited by subsection (7) from requiring the respondent to pay an increase in the rent. The rent could not be increased in any way before the expiry of the term. Contracting out of the requirements of the Act is prohibited,[9] and it follows that, if there was an agreement between the parties to terminate the tenancy but for a higher rent to be paid until then, that agreement was void to the extent that it sought to exclude the application or operation of s 91(7). Note that this provision does not make such an agreement void, only that part of the agreement which would otherwise conflict with the term of the Act.
- [19]There are two other points which I will mention, although they do not affect my decision. First, the appellant also breached the Act s 91(2), in that the required notice of the increase in rent was not given. Claiming that the notice was given at the beginning of the term is no answer, because there is no evidence that a notice which would comply with s 91(3) was given at any time. That provision requires that the amount of the increased rent be stated. No evidence of a notice at the beginning of the tenancy that after six months the rent would be $550 per week was put forward, and I would be surprised if a notice which said that was given. The other point is that, strictly speaking, there was also a breach of the Act s 93(2) on the part of the appellant, which is made a criminal offence by that section. Admittedly it was a minor example of the offence, since the increase was only one day early, but once again the appellant failed to comply with the requirements of the Act.
- [20]On the subject of evidence, I should point out two things. First, although a representative of the appellant appeared at the hearing before the Member, and gave some oral evidence, no documentary evidence was provided by the appellant before or at the hearing. The appellant has however sought to put some documentary evidence before the Appeal Tribunal. On 2 May 2023 an acting Senior Member made directions for the application, including in paragraph 8 that any party seeking to rely on evidence or a document that was not before the Tribunal file an application for such leave. The appellant did not comply with this direction, although I doubt if any of the additional evidence could be shown not to have been available to the appellant at the time of the hearing. The submissions also contain factual assertions not covered by the oral evidence of the representative at the hearing.
- [21]For as long as there have been appeals, courts (and tribunals) have adopted the approach that the initial trial or hearing is not to be regarded as some sort of “preliminary bout”, with the full case reserved for the appeal. Appeal Tribunals have adopted a very limited approach to the receipt of fresh evidence on appeal, although in some cases a degree of flexibility has been allowed to litigants in person who lack the benefit of legal assistance. But professional (and presumably duly licenced) real estate agents are expected to know how to conduct a proceeding in the Tribunal properly, although the appellant has not demonstrated such knowledge. I disregard any evidence not before the Tribunal.
- [22]Another relevant provision of the Act is s 277, which provides that a residential tenancy agreement ends only in one of the ways set out in the section. This appears to be a prescriptive provision, and there is authority that it over-rides the common law position, that a lease is a type of contract, and can be ended in the ways any contract can be ended; for example by acceptance of something which amounts to repudiation of the agreement.[10] If that analysis is correct, a situation could arise where both parties claim that they have terminated the agreement, but the agreement remains on foot. For example, if one party considers (wrongly) that the other has repudiated a contract, and purports to accept the repudiation and put an end to the contract, that will usually amount to repudiation by that party, entitling the first party to terminate. Such a situation may not be possible under the Act.
- [23]One proposition of law the appellant did have correct is that the Act s 277(a) provides for ending the agreement if the parties agree, “in a separate written document,” to end the agreement. I take it that the requirement that the document be “separate” means just that it be separate from the tenancy agreement itself, so that a provision in the tenancy agreement that the agreement terminate in certain circumstances would not be effective.[11] Nevertheless, this is an unsatisfactory provision because there can easily be a situation where the parties are agreed but without a written agreement, or both just “walk away” from the agreement. If the parties in this matter did not agree to end the tenancy, they have just walked away from it, the respondent by moving out and returning the keys,[12] and the appellant by entering into a new tenancy agreement with someone else. If the agreement were still in force, the new tenancy agreement would be a clear breach of it.[13]
- [24]The appellant submitted that the agreement ended on 9 September 2022, but has not identified any provision of s 277 which came into operation on that date. The only relevance of that date would appear to be that it would be a convenient date from the point of view of the appellant. It seems to me however that the tenancy agreement can be seen as having come to an end under the Act s 277(f), since the respondent vacated the premises, and can be seen to have abandoned them, and rent for the period after that has obviously not been paid. The Act contains provisions for a lessor to follow if the lessor wants to show that the premises have been abandoned, but it seems to me that, if the tenant has “abandoned”, that is, has moved out of the premises and returned the keys, quite openly, there is a situation where the landlord does not have to resort to the statutory mechanisms. There is nothing I can find in the Act which confines “abandonment” to a situation where those provisions have been complied with by the lessor.
- [25]In submissions on the appeal the appellant claimed that the tenants were still in the premises after 5 August, and the invoice of the removalist said that the belongings were moved on 6 August. But what matters is whether there was an agreement between the parties, and what its terms were. At the hearing the appellant claimed that it was a term of the agreement that was made that the respondent would remain liable for the rent until a new tenant for the premises was found: p 6. This is not consistent with the exchange of emails quoted above. In response to a request by the tenant to break the lease and vacate the property on 5 August, and seeking “the overall amount the resident has to pay to settle the account in the landlord’s view”, the appellant sent back a calculation which assumed that the rent was only payable to 5 August 2022. All the tenant had to do was accept the offer in that email and the result was that it was agreed that the lease was terminated, and that rent would be payable only up to 5 August 2022. If the appellant’s position were always that rent had to be paid until a replacement tenant was found, that email would have been in very different terms.
- [26]In those circumstances, it is unsurprising that the Member found that there was an agreement to terminate the lease. There was no evidence that that was in writing, and accordingly it did not terminate the tenancy agreement as required by s 277(a), but I consider that it was still effective as a consent by the appellant to the termination of the obligation to pay rent. It could be characterised as a consent to abandonment of the premises by the respondent, or perhaps as a waiver of the respondent’s obligation under the agreement to pay rent.
- [27]Curiously enough the appellant did not rely, either before the Member or on appeal, on the argument that there was a relevant provision in the special terms of the lease. Clause 50 provided that “If the tenancy is breached before the end of the tenancy specified in Item 6 despite other provisions of this agreement the lessor may claim from the tenant: (a) the rent and service charges until the lessor re-lets the premises or the end of the tenancy as specified in Item 6, whichever is the earlier,[14] and (b) the reasonable costs (including advertising costs) of re-letting and attempting to relet the premises.”[15] I consider however that there was no fatal error in failing to refer to this provision, since it is predicated on a breach of the tenancy, presumably a breach of a term of the tenancy agreement. If there is an agreement between the parties to terminate the tenancy, a “break lease” agreement, even if it is not effective to terminate the tenancy agreement because of s 277, it will still be effective as a later agreement between the parties, and will operate as a waiver of the mutual obligations of the parties under the agreement, or consent to the abandonment of the premises by the tenant, which will put an end to the tenancy agreement, if the tenant does in fact move out. Once the tenancy agreement was at an end, the obligation to pay rent also came to an end.
- [28]There are other problems facing the appellant in respect of the claim for the rent for the period up to 9 September 2022. The Act s 419 permits a claim to be made to the Tribunal about a breach of a term of a residential tenancy agreement, but by s 419(3) the claim must be made within six months after the party becomes aware of the breach. As soon as the respondent stopped paying rent, the appellant would have been aware of that fact. A claim under s 419 is not an urgent application,[16] so the appellant would have had first to go through the dispute resolution process with the RTA,[17] and there is no evidence that the appellant has done that, within the six month period or at all. So the Tribunal has no jurisdiction to entertain a claim by the appellant under s 419.
- [29]Further, under the Queensland Civil and Administrative Tribunal Rules 2009 a respondent may apply for orders against an applicant by filing a counter-application in the Tribunal, or by making a separate application to the Tribunal: Rule 48.[18] Neither step was taken, and it follows that it was futile for the appellant to ask the Appeal Tribunal for an order that the respondent pay the applicant $3,242.65 as compensation for the period of the vacancy, or for that matter for the cleaning fee, which has in effect already been paid.
- [30]I should also say that it is quite clear that the application which went to the Tribunal was not an application under s 92. Although the section was mentioned (with s 137, s 419 and s 429) in the application form, it was clear enough from the relief sought and from the reasons for that relief relied on, that the basis of the claim was different. Accordingly the appellant’s submissions about the availability of relief under s 92 were not to the point. On the view I take, it also did not matter that the respondent was a day or two late in moving out, since there was no reason to think that the appellant suffered any loss or damage as a result. At best there might have been a small claim for mesne profits, but that was never pursued. There is nothing in the RTA guidelines which would justify the rent increase demanded by the appellant, which in my opinion was illegal. In those circumstances, the respondent had a restitutionary right to recover the overpaid rent.[19] The timing of the claim for the bond is I consider of no consequence. There is no time limit on making that claim to the RTA, and it was the appellant who made the first claim.
Conclusion
- [31]As I have said, there was at least one unsatisfactory aspect of the hearing, but the failure to receive evidence from the friend of the respondent was an error in favour of the appellant, and he cannot complain of it. None of the submissions made by the appellant show that the appellant has any real prospect of showing that the Member erred in any way which would assist the appellant. Apart from that, in circumstances where the origin of the whole dispute lay in the appellant’s illegal attempt to increase the rent, it is clear that the appellant has suffered no injustice as a result of the decision of the Tribunal. Indeed, I consider that any other outcome would have been an injustice to the respondent, who ought to have been allowed to occupy the premises at the original rent for the balance of the term. In those circumstances, I refuse leave to appeal.
Comments
- [32]There are two other matters which I should mention. First, I consider that the Act s 277 is quite defective in preventing a tenancy agreement from coming to an end by mutual agreement of the parties made after the tenancy is entered into, even if it is not agreed in writing. As well, the agreement should be treated as ended if both parties treat the tenancy as over, or if the tenant surrenders the premises to the lessor with the consent of the lessor. As it stands, s 277 is far too restrictive. There must be many zombie tenancy agreements which hang around long after the parties have moved on from the particular tenancies for which they provide, and merely serve to produce a risk of surprising and perhaps unpleasant consequences for one or other party.
- [33]The second is that I would expect a licenced real estate agent who works as a property manager to be better informed as to the law applying to residential tenancy agreements in Queensland than is suggested by the submissions advanced in this matter. It may be that these submissions were made because he had been instructed to appeal, and he could not identify any better ones, but the lack of understanding of the processes of the Tribunal, and the failure to engage with it at the appropriate time, which such an agent should also be able to handle, was also unsatisfactory.
- [34]The application for leave to appeal from the decision of the Tribunal of 24 March 2023 is dismissed.
Footnotes
[1] I shall for convenience identify Dalco Realty Pty Ltd as the appellant, and Sungmin Chun as the respondent.
[2] A Magistrate sitting as a Member of the Tribunal under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 171(2).
[3] The QCAT Act s 142(3)(a)(i).
[4] Berry v Commissioner of Police [2015] 1 Qd R 388 at [4]; Crime and Corruption Commission v Lee [2019] QCATA 38 at [12], citing appellate authority. See also Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17].
[5] Allen v Queensland Building and Construction Commission [2024] QCA 24 at [21]. I am also conscious of the qualification to that general statement at [22], adopting the discussion of an analogous provision in Commissioner of Police v Antonailli [2021] QCA 237 at [105] – [115].
[6] Transcript p 6.
[7] The Retail Shop Leases Act 1994 (Qld) s 27(5) identifies seven different bases for a rent review of a lease under that Act.
[8] Note the very detailed provisions for an assessment of the current market rent under the Retail Shop Leases Act s 29.
[9] The Act s 75.
[10] Hiscox v P B G Realty [2019] QCATA 112 at [16], [17]; Lobato v Gardian Real Estate Pty Ltd [2021] QCATA 130 at [20].
[11] I do not consider that there must be only one document: Acts Interpretation Act 1954 (Qld) s 32C.
[12] At common law, this would amount to surrender of the tenancy, but that possibility also does not appear to be accommodated by the Act.
[13] Apart from anything else, it would breach the covenant for peaceable possession and quiet enjoyment: Fogarty v Hughes [2024] QCAT 273, where the tenants left the premises and returned the keys, but had left their belongings there, which was held not to be abandonment.
[14] It occurs to me that this provision might be void anyway under the Act s 173(1)(a).
[15] This part might breach the requirement in the Act s 357A(1)(b) and (c), picked up by s 173(2).
[16] The Act s 415.
[17] The Act s 416.
[18] For the requirements of a counter-application, see Rule 50.
[19] Kiriri Cotton Co v Dewani [1960] AC 192.