Sharma v Kirkston Holdings Pty Ltd
[2025] QCATA 1
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- Unreported Judgment
- Sharma v Kirkston Holdings Pty Ltd[2025] QCATA 1
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Sharma v Kirkston Holdings Pty Ltd[2025] QCATA 1
Sharma v Kirkston Holdings Pty Ltd[2025] QCATA 1
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Sharma v Kirkston Holdings Pty Ltd [2025] QCATA 1 |
PARTIES: | donald lalesh sharma (applicant/appellant) v kirkston holdings pty ltd (respondent) |
APPLICATION NO/S: | APL060-23 |
ORIGINATING APPLICATION NO/S: | MCD195-23 Brisbane |
MATTER TYPE: | Appeals |
DELIVERED ON: | 7 January 2025 |
HEARING DATE: | 1 October 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Member Howe |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where tenants vacated early – where the tenants claimed the bond – where that was opposed by the lessor – where the tenants sought conciliation on the bond through the Residential Tenancies Authority – where the tenants commenced minor civil dispute proceedings in the Tribunal – where an Adjudicator ordered the bond paid out to the lessor and made additional orders for payment by the applicant tenants of compensation to the lessor – where the lessor had not filed a counter application in the Tribunal for payment of compensation in addition to the bond – where the tenants sought leave to appeal Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 136D, s 419, s 420, s 421 Pickering v McArthur [2005] QCA 294 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | No appearance |
REASONS FOR DECISION
- [1]The appellant, Mr Sharma, together with his partner (jointly referred to as ‘the tenants’), entered into a three month residential tenancy agreement with the respondent company (‘Kirkston’).
- [2]The period of the tenancy was from 24 August 2022 to 23 November 2022 at a rent of $330 per week.
- [3]Kirkston gave the tenants a Form 12 Notice to Leave of two months effective from 29 September 2022 and ending 29 November 2022.
- [4]Mr Sharma requested more time to find another property and Kirkston agreed to another two month tenancy commencing 24 November 2022 and ending 31 January 2023, but at a rent of $350 per week. A second tenancy agreement was executed between the parties to that effect.
- [5]In early December 2022 the applicant informed the respondent that the tenants had found another property. The tenants vacated on 13 December 2022.
- [6]The respondent listed the property with real estate agents who advised it would take some time to rent given the Christmas closure.
- [7]Kirkston however was contacted by a former tenant of the property who agreed to take the property again from 8 January 2023.
- [8]Mr Sharma applied to the Residential Tenancies Authority to recover his bond. That was opposed by Kirkston who claimed there were arrears of rent of $390 outstanding as at 13 December 2020 and break lease rent owing for the period 14 December 2022 to 7 January 2023 in the amount of $1280. Kirkston also claimed for the cost of repairs to the toilet and for pest treatment of $300.
- [9]Mr Sharma commenced minor civil dispute – residential tenancy dispute proceedings in the Tribunal and the matter came on for hearing on 1 March 2023. An Adjudicator ordered the Residential Tenancies Authority to pay out the bond it held in the amount of $1,280 to Kirkston and also ordered that Mr Sharma pay Kirkston the additional sum of $558.
- [10]Mr Sharma wants to appeal that decision.
- [11]Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1]
- [12]Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2]
Grounds of appeal
- [13]Mr Sharma’s grounds of appeal are broad brush. He agitates as follows:
- The tenants were not obliged to have a pest treatment done before vacating the property;
- The tenants had two rent increases over a four month period which was illegal;
- The tenants were not liable for toilet repairs because the Adjudicator should not have accepted the evidence comprising a false plumber’s invoice;
- The evidence accepted by the Adjudicator concerning payment of a plumber’s invoice for toilet repairs should not have been accepted;
- The break lease rent allowed Kirkston by the Adjudicator occurred because the lessor (Ms Elkerton, officer of Kirkston) was away interstate;
- The tenants had adhered to the requirements of the Form 29 (sic) Notice to Leave.
- [14]He then goes on to claim recovery of the full bond plus the sum of $2,000 representing “relocation costs”.
- [15]The claim for $2,000 relocation costs was never raised as an issue in dispute before the Adjudicator below. It need not be addressed further. Nor was the matter of two rent increases within a four month period. It is not appropriate to raise novel issues before the Appeal Tribunal for the first time where the issues have not been raised before the primary Tribunal and the opponent given opportunity to address and test the issue below.
- [16]The cost for the pest treatment was not allowed by the Adjudicator and therefore need not be considered save in passing.
- [17]The Adjudicator noted the issues in dispute at outset of the hearing to be the claims made by Kirkston for arrears of rent $390, rent claimed by Kirkston for the period from 14 December 2022 to 7 January 2023 in the amount of $1,280 and the costs of repairing a toilet of $300. Mr Sharma’s claim for the bond was approached as responding to the claim by the lessor, rather than the primary issue in dispute, which perhaps led the Adjudicator astray.
Rent in arrears $390
- [18]Mr Sharma claimed he had paid all rent due up to 14 December.
- [19]That was not accepted by the Adjudicator who calculated an amount of $390 was unpaid. Kirkston relied on a rent ledger kept by the company put in evidence.
- [20]Mr Sharma relied on a bank statement in his partner’s name as his ledger which he said showed additional rent paid. All the payments listed there however were also recorded in the Kirkston ledger and the bank statement did not cover the early period of the tenancy. Based on the Kirkston ledger there was a shortfall of $390 as at 14 December 2022.
- [21]The Adjudicator was entitled to conclude there had been a shortfall in rent paid.
- [22]Mr Sharma cannot succeed on appeal against the award of $390 for rent outstanding as at 14 December 2022.
Plumber’s invoice and claim for $300
- [23]At the hearing below the claim for this was explained by Ms Elkerton as follows. The plumber’s invoice was for $198, but she had reduced her claim to $160 because there was a tap replacement cost as part of it and she conceded that was a lessor’s maintenance item. The balance of $140 claimed was the cost for pest treatment quoted to her. She claimed the tenants were obliged to have that done on exit but they did not.
- [24]That totalled $300 which was what Kingston was claiming.
- [25]The Adjudicator noted difficulties with the plumber’s invoice. The invoice detailed the work done as Plunge WC (Build up of excess toilet paper); Replace front hose tap; test and clean-up - $180 plus $18 GST, Total $198.
- [26]The invoice was dated 27 September 2022. In the description of work in the invoice the date of call-out was given as 27 October 2021. The date due for payment was 4 October 2022.
- [27]The plumber did not give evidence.
- [28]Ms Elkerton appearing for Kirkston said the plumber had been called and did the work in September 2022, when the tenants were resident there. She suggested the plumber had simply made a mistake with dates on the invoice. He went out to the property in September when she was in Melbourne. She was only in Melbourne in September 2022 and she recalled exchanging eight emails and texts about the blocked toilet whilst there. The date due for payment on the invoice was 4 October 2022 which corresponded to a September visit. The erroneous date was the call-out date noted, a typographical error.
- [29]Mr Sharma did not agree. He admitted the plumber came, admitted there was a problem with drainage although he claimed the plumber told him it was caused by tree roots, but said that was in November 2022.
- [30]The Adjudicator found the plumber had attended to clear a blocked toilet drain and accepted that that was due to inappropriate use of the facility by the tenants. That was a conclusion he could reach on the disputed evidence before the parties, and indeed the reference in the plumber’s invoice was to a blocked toilet from excess toilet paper, not tree roots. He allowed the full plumber’s invoice for $198, but rejected the claim for the pest treatment without documentary evidence to support it.
- [31]The Adjudicator fell into minor error here with respect to the amount allowed for the plumber’s costs. Kirkston did not claim the full amount of the plumbing invoice, $198, but claimed only $160 for the work.
- [32]Leave to appeal is granted in respect of this ground of appeal, but given my findings below about Kirkston being entitled to the bond, there is no recovery by Mr Sharma of the $38 difference.
Break lease expenses
- [33]Mr Sharma left on 13 December 2022. He said Ms Elkerton was away from Brisbane and that was the cause of the delay renting. The property should have been relet immediately.
- [34]Ms Elkerton explained away the accusation of delay as follows. She said the tenants vacated on Tuesday 13 December 2022. She was “back at work” the next day, which one takes means she had returned to Brisbane. She engaged the real estate agents to re-list the property on Thursday 15 December 2022 and they attended to take photographs of the property the following Monday 19 December 2022. That was the last working week before Christmas day on the Sunday. The agents were closing their doors on Friday 23 December 2022. They were not returning to work until Monday 2 January 2023.
- [35]Ms Elkerton said in a statement of evidence that she was contacted by an old tenant on 30 December 2022 who said she was prepared to rent the property from 8 January 2023.
- [36]The Adjudicator accepted the explanation for delay and indeed that was open to him on the evidence. Mr Sharma claimed there was delay but offered no support for that proposition. He failed to take into account the Christmas closure which commonly delays such things in the December/January periods each year.
- [37]Mr Sharma’s complaint here has little prospect of success.
- [38]Having said that however, it is the case that Kirkston did not file a counter application in the proceeding. The only application before the Tribunal was Mr Sharma’s application for his bond. The claims by Kirkston concerning breach of the tenancy agreement by the tenants were relevant in assessing who was entitled to the bond. But in so far as the breaches exceeded the value of the bond, they were beyond the jurisdiction of the Adjudicator to determine by way of additional order.
- [39]By s 419 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), if a lessor or a tenant claims a breach of a residential tenancy agreement, each may apply to the Tribunal for an order about the breach. The application must be made within six months after the party becomes aware of the breach.
- [40]Section 420 states that if a party makes an application about a breach of a residential tenancy agreement, the party may seek an order for the payment of money or compensation.
- [41]Section 421 applies where the application is for the payment of compensation and specifically addresses break lease claims.
- [42]The Tribunal is an inferior creature of statute. The only powers available are those granted by statute. If the lessor wanted payment of compensation additional to the amount of the bond held by the RTA, the lessor was obliged to make an application to the Tribunal for that. It could have done that by counter application, but it did not. The lessor was not entitled to an order for those additional monies absent such application.
- [43]The issue of the bond was a separate matter. By s 136D an interested party (the tenants or lessor) may apply to the Tribunal for an order about the payment of the rental bond. S 136D(2) states the Tribunal may make whatever order it considers appropriate about the payment of the bond and goes on to list such factors for consideration as the tenants’ compliance with its obligations under s 188(4), the parties’ compliance with the Act for the tenancy agreement, and evidence supporting any claim to the bond.
- [44]In assessing how the bond should be paid out, the claims by Kirkston to outstanding rent and the costs of recovery of compensation for the toilet repair costs were therefore appropriately explored and assessed. But the only monies available for distribution (order) was the bond of $1,280.
- [45]The Adjudicator made no error in directing the RTA to pay the full bond amount of $1,280 to Kirkston, but there was no power to go on and additionally order Mr Sharma to pay more, absent a counter application by Kirkston.
- [46]Leave to appeal is granted and the appeal allowed.
- [47]The error made by the Adjudicator was an error of law. As such I am able to set aside the order made. I need simply set aside the offending part of it. To make the matter clear, subject to Mr Sharma having paid the additional amount of $558 to Kirkston, I shall order Kirkston to repay the amount paid to Mr Sharma.