Adams v Kolkka [2024] QCAT 219

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Adams v Kolkka [2024] QCAT 219 PARTIES: SHANNON ADAMS (applicant) v LISA KOLKKA (respondent) TORI KOLKKA (respondent) APPLICATION NO/S: T1103/23 MATTER TYPE: Residential tenancy matters DELIVERED ON: 21 May 2024 HEARING DATE: 15 December 2023, 30 January 2024, 6 March 2024 HEARD AT: Southport DECISION OF: Adjudicator Alan Walsh ORDERS: 1. The Application filed on 4 December 2023 is dismissed CATCHWORDS: QUEENSLAND CIVIL AND ADMINISTRATIVE TRBUNAL – MINOR CIVIL DISPUTE - TENANCY DISPUTE – where applicant residential tenant of respondents – where tenancy periodic – where respondents gave informal notice to end tenancy – where notice ineffective of itself – where applicant and respondents agreed to end tenancy early by separate written agreement – where vacant possession and keys returned by applicant – where applicant subsequently sought advice and alleged wrongful eviction – whether applicant wrongfully evicted – whether applicant’s evidence truthful – whether applicant suffered compensable loss and damage recoverable from respondents – whether causal connection - whether loss and damage proved – whether loss and damage mitigated Acts Interpretation Act 1954 (Qld), s 32C Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 5, s 6, s 8, s 9, s 10, s 11, s 12, s 13, s 29, s 52, s 53, s 54, s 55, s 56, s 58, s 61, s 62, s 65, s 66, s 67, s 70, s 83, s 84, s 85, s 86, s 87, s 88, s 89, s 90, s 91, s 183, s 185, s 188, s 277, s 280, s 281, s 291, s 293, s 325, s 326, s 327, s 334, s 335, s 336, s 337, s 340, s 342, s 343, s 345, s 347, s 349, s 350, s 351, s 414, s 415, s 416, s 417, s 419, s 420, -- 1 of 13 -- 2 s 421, s 426, s 429, Schedule 1 Part 1 Division 1 and Part 2 Division 1, Schedule 2 Re Nichol [2017] QSC 220 Rush v Nationwide News Pty Ltd (No. 7) [2019] FCA 496 South West Terminal Ltd v Achter Land & Cattle [2023] SKKB 116 Emojipedia “Gestures and expressions” “Thumbs Up” APPEARANCES & REPRESENTATION: Applicant: In person, self-represented Respondent: In person, self-represented REASONS FOR DECISION Context [1] Shannon Adams is a former tenant of Lisa and Tori Kolkka. She exclusively occupied a self-contained “granny flat” at the back of their Broadbeach Waters home under a “Granny Flat Agreement” until 24 August 2023 when she left, returning one of two keys having lost the other and still owing rent. [2] In substance and character notwithstanding its bespoke content, the granny flat agreement was a residential tenancy agreement within the meaning of the provisions1 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the RTRAA). There were no shared common facilities, and it had its own separate entry. Application [3] In her application for a minor civil dispute – residential tenancy dispute, Ms Adams claims compensation of $13,100 from Mr Kolkka and Mrs Kolkka for forced eviction. [4] The claim is made up of $10,600.00 for accommodation costs and $2,500.00 for rental car hire. Defence [5] Mr and Mrs Kolkka deny liability. [6] They say that Ms Adams left the “flat” by agreement, owing rent of $1,260.00 after bond and before cleaning costs but they do not make a counterapplication and will not pursue reimbursement. 1 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), amongst others see s 5, s 6, s 8, s 9, s 10, s 11, s 12, s 13, s 29, s 52, s 53, s 54, s 55, s 56, s 58, s 61, s 62, s 65, s 66, s 67, s 70, s 83, s 84, s 85, s 86, s 87, s 88, s 89, s 90, s 91, s 183, s 185, s 188, s 277, s 280, s 281, s 291, s 293, s 325, s 326, s 327, s 334, s 335, s 336, s 337, s 340, s 342, s 343, s 345, s 347, s 349, s 350, s 351, s 414, s 415, s 416, s 417, s 419, s 420, s 421, s 426, s 429, Schedule 1 Notice periods Part 1 Division 1 and Part 2 Division 1, Schedule 2 Dictionary; also see Residential Tenancies and Rooming Accommodation Regulation 2009 (Qld) generally. -- 2 of 13 -- 3 Issues [7] A pivotal issue is whether the granny flat agreement ended prematurely by written agreement between lessors and tenant. [8] In that regard, section 277 of the RTRAA provides that a residential tenancy agreement ends only in one of the following ways – (a) the lessor and tenant agree, in a separate written document, to end the residential tenancy agreement; (b) the lessor gives the tenant a notice to leave under section 326 and the tenant hands over vacant possession of the premises on or after the handover day for the notice. (c) (not relevant) (d) (not relevant) (e) (not relevant) (f) (not relevant) (g) the tribunal makes an order terminating the agreement. [9] Other issues are whether: (a) by reference to invoices, receipts, and other relevant documents, Ms Adams has proved her loss or damage; (b) the loss and damage was caused either by unlawful termination of the granny flat agreement or the breach of a term of the contract during the tenancy; and (c) in that event, Ms Adams mitigated her loss and damage. Facts/Evidence [10] The granny flat agreement commenced on 6 April 2023. [11] Ms Adams says it was for a fixed term expiring on 30 November 2023. Mr and Mrs Kolkka dispute that. [12] There are two versions of it. [13] One version, typed, is attached to Ms Adams application. It is undated and unsigned and refers to the tenancy commencing on “07/04/2023 and ending on the TBA.” Below the typescript is the handwriting of Ms Adams which reads: “Fixed term until 30 th November 2023. I have requested a copy of the signed agreement from the landlords which the lawyer/landlords will provide.” [14] A second version, partly typed and partly handwritten, a copy of which is filed, is signed by Mrs Kolkka and Ms Adams on 4 June 2023. It describes Mr and Mrs Kolkka as the “property provider” and Ms Adams as the tenant of the “rental flat” commencing on 6 April 2023 and in inserted handwriting refers to it “ending on 30 November 2023 or with 4 weeks notice if sooner.” [15] Mrs Kolkka says the changes written in pen were made by Ms Adams after the agreement was signed, she has not agreed with or initialled those changes, and that “the end of lease date was to be reviewed in six months of the move in date” making the end of lease date 6 October 2023 though that is not expressly stated. The date 30 -- 3 of 13 -- 4 November 2023 and a line through words deleted seems to have been inserted by unilateral handwritten alteration. [16] Characterization of the tenancy as either fixed term or periodic is open to interpretation and considerably complicated by the differing versions of the agreement and the handwritten insertions. [17] Qualification of the term of the agreement by the inserted words “or with 4 weeks notice if sooner” in the signed agreement and the words “and ending on the TBA” in the unsigned agreement filed by Ms Adams with the application permits the conclusion that the parties intended this to be a periodic tenancy from month to month terminable on 4 weeks’ notice but with a review on 5 October 2023. I find that to be the case. [18] Rent of $420.00 per week including electricity, water, and furnishings, was payable by Ms Adams with a bond of $500.00.2 Ms Adams paid one week’s rent and the bond upon commencement of the tenancy. [19] Mr and Mrs Kolkka did not pay the bond to the Residential Tenancies Authority as required by the RTRAA. Rather, they held it in escrow and later applied the bond in part payment of outstanding rent in accordance with Ms Adam’s instructions, to which I will refer later. [20] It is not disputed that during the tenancy Ms Adams fell in arrears with rental payments on several occasions, then caught up, and then again fell into arrears, though the amount of arrears is disputed. [21] The continuing arrears came about because Ms Adams had given notice where she was employed in Miami as an administrator and bookkeeper at an architect’s firm. She started applying for other jobs but was unsuccessful.3 [22] Apparently relying on the handwritten 4 week notice provision in the second (signed) granny flat agreement, on 4 August 2023 Mr Kolkka gave Ms Adams “notice” in a text message as follows. Hey Shannon, just spoken to Lisa and unfortunately we will have to give you 4 weeks’ notice from today 4th of August. Also can you please pay rent by the end of business today. [23] Ms Adams responded by text message with a thumbs up emoji. [24] On 10 August 2023, Ms Adams made a further payment of $420.00 which covered the week of the 3rd August 2023 leaving her still 7 days behind in rent. [25] On 14 August 2023 when eleven days in rent arrears, Ms Adams sent the following text message to Mr Kolkka. Hi Tori, can you please take the bond. Trying to organise to leave next week so I’ll arrange the rest of the money then. [26] Mr Kolkka responded the same day as follows. 2 See agreement dated 4 June 2023 in the bundle of documents filed by Mrs Kollka by email to the Courthouse dated 8 December 2023. 3 Transcript 15 December 2023, T1-25 lines 39 to 48 and T1-26 lines 1 to 27. -- 4 of 13 -- 5 Hey Shannon, with using the bond it’s not what we normally do. If something has been broken, needs repairing or extra cleaning is needed and the bond is used then that comes out of our pocket. If you want to use the bond that will pay rent up till Thursday if you could please pay the next week prior to Thursday. What date do you intend on moving out? As next week will fall short of the 4 weeks’ notice. We are just trying to sort out what we need to do. Thanks Tori. [27] On Wednesday 16 August 2023, Ms Adams messaged Mr Kolkka and said she could pay another fortnight next Thursday and that she’d need another month “if that is ok.” [28] Mr Kolkka responded, saying that was fine so long as rent was paid on Thursday and Ms Adams replied as follows. I understand but I can’t be asked to leave at such short notice with now (sic) where to go. You gave 4 weeks notice. I will have the flat cleaned and will be out (out) next Friday. [29] The next Friday to which Ms Adams referred was 25 August 2023. [30] Several other text messages were exchanged on 16 August 2023 which I quote for completeness. MR KOLKKA: Hey Shannon. Sorry the 4 weeks notice still stands from the 4 th of August. Also with the rent it will still be due by 5pm Thursday, if not paid can you please vacate by 5pm Friday. Happy for you to stay until notice is up 1 st of September, as long as rent is paid by 5pm each Thursday. MS ADAMS: No problem. I can’t pay you weekly. I will need to pay the two weeks next week so I will arrange to leave next Friday. MR KOLKKA: I’m sorry it’s weekly, like it always should have been. We don’t get to pick and choose when we pay our bills. We have no guarantee that it will be paid next Thursday and as you have already used your bond for rent we now have nothing to fall back on. I’m sorry that’s just the way it is, rent by 5pm Thursday or vacate4 please. MS ADAMS: I understand rent and bills are to be paid on time. I will not be vacating this week. I will be paying you two weeks next Thursday and will vacate on Friday. [31] Mr Kolkka’s reference to notice being “up” on 1 September 2023 was in error because it would expire on 3 September 2023, as he admitted in evidence.5 [32] Mr Kolkka and Ms Adams met in the driveway on Thursday 24 August 2023 but what happened there then is in dispute. [33] Mr Kolkka says that after a brief discussion about outstanding rent of almost three weeks both he and Ms Adams concluded that it was best that she leave then. [34] Ms Adams says that she was “forced out” that day, the Thursday of the week before the “four weeks was due.”6 4 Implicitly, on 25 August 2023. 5 Transcript 15 December 2023, T1-4 lines 5 to 10. 6 Ibid, T1-4 lines 18 to 23. -- 5 of 13 -- 6 [35] Ms Adams says she did then hand the key back but “it was not mutually agreed”7 because Mr Kolkka “decided on the spot that I was to be forced out (and) offered to walk me to the flat to remove my things immediately and leave the premises.”8 [36] Mr Kolkka said that he “stayed out the front (and that) she went down, got her stuff, come back out, handed the key” and Ms Adams said that this was because “I refused that you walk me.”9 [37] Mrs Kolkka said that Ms Adams had a hire car that day. She said it “already had her belongings in it…. so Shannon was well aware that – you know, she was already leaving.” [38] Ms Adams responded to that as follows. But 10 days is still a significant time, and I did request additional time. And being forced out on the day made me homeless. So – yes. While I was preparing to move out and putting things in a car to move out and still cleaning, you essentially made me homeless on the spot. The rent – you didn’t give me the full day to pay rent, which I still had until the end of the day, which it would have been paid. You made a decision on the spot, and it made me homeless.10 [39] I asked Ms Adams when she hired the car. [40] She said: “I had already had it, I think for a couple of days. I – I don’t quite recall. Have to look at some receipts.”11 [41] Concerning an invoice for the car hire at that time, Ms Adams said there was no invoice with her documents and “I would have to retrieve it and provide a copy for those – for those particular dates.”12 [42] However, Ms Adams did not then or on the two subsequent dates when the case was part heard produce the invoices and receipts for car hire prior to 25 August 2023. [43] In a letter to her solicitor dated 11 September 2023 in evidence, Ms Adams said the following occurred on the day she left. I requested to change my rental payments from weekly to fortnightly as my circumstances changed. This was not honoured by the landlords and they gave me 4 weeks notice. I requested an additional month as I had nowhere to go, they declined. On the Thursday a week before the 4 weeks was due, they requested I leave immediately as I owed two weeks rent which was paid to that morning. I paid one week only due to the request but the two weeks was going to be paid. The landlord said I’ll walk you to the flat while you collect the rest of your things which I said no, I will go on my own. I am now in temporary accommodation (sic) as they have breached the agreement. I would like to know what damages I can claim. I also spoke with the RTA – they advised me they are meant to allow two months notice? And they have to give reasons if they are wanting to give notice. 7 Ibid, T1-5 lines 10 to 11. 8 Ibid, T1-5 lines 27 to 29. 9 Ibid, T1-5 line 45. 10 Ibid, T1-9 lines 25 to 30. 11 Ibid, T1-9 lines 32 to 35. 12 Ibid, T1-9 lines 37 to 41. -- 6 of 13 -- 7 [44] I asked Mr Kolkka why he had not issued a Form 12 Notice to leave with or without ground to Ms Adams. [45] Mrs Kolkka said they did not give Ms Adams a Form 11 Notice to remedy rent breach either. [46] Mr Kolkka said he was not aware at that time of the need to do so. [47] Mr Kolkka gave the following explanation. Again, we’re just – it was an informal agreement with a friend, and it’s not in our nature to – to be forceful, to be honest. And also, we weren’t actually aware that even though it was a room in our house, you still had to use formal – what is it -agreements or letters, sorry.13 [48] I asked Ms Adams why she agreed to leaving early which she answered as follows. It was not until I contacted the RTA and QCAT to get advice, I was not aware that a fixed term actually meant that you have to – you have to -you’re obligated to fulfil that fixed term.14 [49] I now turn to the documents on which Ms Adams relies for her claims for compensation for loss and damage. Car Hire [50] Ms Adams relies on the following documents in support her compensation claim for car hire. (a) Tax Invoice of Sixt Rent A Car dated 20 October 2023 (Gold Coast Airport) to Ms Adams at a Morningside 4170 address for $381.72 for vehicle check out date 19 October 2023 Maroochydore Airport and check in date 20 October 2023 Gold Coast Airport. (b) Tax Invoice of Sixt Rent A Car dated 20 October 2023 (Gold Coast Airport) to Ms Adams at a Morningside 4170 address for $290.38 for vehicle check out date 19 October 2023 Maroochydore Airport and check in date 20 October 2023 Gold Coast Airport. (c) Receipt from Alpha Car Hire Trading Pty Ltd for $250.00 dated November 16, 2023 (Stripe Authority for reservation). (d) Receipt from Alpha Car Hire Trading Pty Ltd for $273.21 dated November 17, 2023 (Stripe Authority for reservation). [51] Why there are two tax invoices from Sixt of the same date for different amounts is not clear to me. What is clear is that Morningside 4170 recorded in the tax invoices as the address locality that Ms Adams gave to Sixt is a southside suburb in the City of Brisbane.15 [52] The rental car hire charges referred to in these invoices and receipts were not incurred at or about the time that Ms Adams left the granny flat on 24 August 2023 or even 13 Ibid, T1-8 lines 9 to 15. 14 Ibid, T1-8 lines 39 to 44. 15 Whereis https://www.whereis.com -- 7 of 13 -- 8 shortly afterward and do not flow as inevitable expenditure caused by the ending of her tenancy approximately 2 months earlier. [53] The sum of the rental car hire charges evidenced by these invoices is $1,195.31, not $2,500.00 as claimed and there are not, amongst these documents, any car hire invoices or receipts for car hire by Ms Adams for the period immediately prior to 25 August 2023. Accommodation Cost [54] Ms Adams relies on the following documentary evidence in support of her compensation claim for accommodation. (a) A Trust Account Receipt from Beachside Resort Buddina, 101 Pacific Boulevard, Buddina Beach QLD 4575 for $200.00 paid by debit card for a 2- bedroom apartment, arrival date 1 November 2023, depart date 2 November 2023. (b) A Beachside Resort Buddina Proforma Tax Invoice (no invoice number) dated 30 October 2023 for 1 adult for Room 514 for $800.00 at a long stay + flexible rate for the period 27 October 2023 to 2 November 2023. (c) A Beachside Resort Buddina Proforma Tax Invoice (no invoice number) dated 27 October 2023 for 1 adult for Room 514 for $4,000.00 arrival date 27 October 2023, depart date 1 December 2023. [55] By comparison with Ms Adams’ accommodation cost claim of $10,600.00, the proforma tax invoice charges total $4,800.00 and the trust account receipt is for $200.00, in sum $5,000.00. [56] The proforma invoices relate to periods of Resort accommodation commencing more than 2 months after Ms Adams left the tenancy with Mr and Mrs Kolkka on 24 August 2023 for a period ending 1 December 2023. [57] They too do not flow as inevitable expenditure caused by the ending of Ms Adams’ tenancy more than 2 months earlier. [58] Ms Adams admitted that the proforma invoices were not paid. [59] There is no supporting evidence that she sought out less costly rooming accommodation on the Sunshine Coast as an alternative. [60] Ms Adams’ sworn evidence was that she went so far afield (to the Sunshine Coast) because she grew up there and “they have another community there … close by another community where I’ve got friends.” [61] She said there was nothing available on the Gold Coast and “to come across emergency accommodation is very difficult” and that after exhausting all resources possible including going to a police station at Palm Beach “I then resorted to the Sunshine Coast.”16 [62] She said she stayed “a few nights” (sic) at friends because “that’s what was available for something that was emergency; otherwise, nothing else was available.”17 16 Transcript 15 December 2023, T1-25 lines 12 to 35. 17 Ibid, T1-26 lines 33 to 36. -- 8 of 13 -- 9 [63] I explained to Ms Adams that she had to prove her case, her loss, and that just because one gets an invoice doesn’t mean that that the invoiced amount is recoverable.18 [64] Insofar as relates to Ms Adams staying with friends, her evidence was as follows. So part of it was staying with friends which is a cost on them … it’s not fair on them, just – I – I owe them, so would like to pay them money, so what do I need then follow up a receipt from them also?19 … I offered them money.20 … It shouldn’t be on them to have to be burdened because of their neglect to follow their obligations by law.21 … I have not transferred money to them yet, no. Because I have not been in a financial position to. But I would like to.22 [65] Ms Adams did not identify the friends with whom she stayed, where they lived, and whether they would charge her, and if so how much. Nor did she quantify what amount she would like to pay those friends and for what periods if she could. [66] Insofar as relates to the proforma invoices of Beachside Resort Buddina relied on by Ms Adams, her evidence was that they were still outstanding, “to be paid at a later date based (sic) on this hearing …. They are outstanding currently. So I currently owe money …. The management of the apartments that I stayed at.”23 “The Hedge Apartments …. Whatever the management team that’s on there. I believe the person I was dealing with at the time, his first name was Peter.”24 [67] As against that evidence, Mr and Mrs Kolkka relied25 on an email dated 5 February 202426 from Peter Rodgers of Hedge (hedge@cllix,com) (QLIX Apartments and Hotels) to Mr Kolkka who contacted him to clarify whether Ms Adams’ evidence was true. Hedge apparently was (and still is) the manager of Beachside Resort Buddina as appears from the Account details in the proforma invoices. [68] In that email, Peter Rodgers, apparently the person named Peter to whom Ms Adams referred, said the following. Good afternoon Tori I am happy to help. Ms. Adams contacted us to say that she was in desperate need of somewhere to stay and as we do short term accommodation I gave her the nightly rate for the only apartment I had available. She didn’t want the nightly rate, but a reduced rate for a longer stay. I negotiated with the owner of the unit a rate of $800.00 per week. This was still set up as a hotel Booking and payment was to be made upfront. On arrival the office was busy and Ms. Adams said she was in need of a bathroom, so I handed her the key and asked her to return to make payment. Ms. Adams never came back to pay. 18 Transcript 30 January 2024, T1-25 lines 11 to 28. 19 Ibid, T1-25 lines 26 to 48. 20 Ibid, T1-26 line 14. 21 Ibid, T1-26 lines 16 to 24. 22 Ibid, T1-26 lines 33 to 37. 23 Ibid, T1-27 lines 7 to 45. 24 Ibid, T1-28 lines 17 to 24 25 In submissions dated 18 February 2024 in reply 26 Schedule 1 -- 9 of 13 -- 10 This was Friday afternoon the 27th OCT, I called her multiple times and and knocked on the door. No response. I tried to make contact Monday, Tuesday, and Wednesday and left many messages texts and knocked on the door many times. After finally getting to speak with her, I asked her to leave the property as payment was past 5 days. I told Ms Adams if the payment wasn’t made I would call the police. Which is what I did in the end, and she was removed from the property with the help of the QPS. Payment for her 5 nights was never made. Hope this helps you out. Regards Peter Rodgers. [69] In evidence at the last hearing on 6 March 2024, Mr Kolkka said that Hedge is the place where Ms Adams says she stayed on the Sunshine Coast, that he had rung Mr Rodgers to see if Ms Adams had paid any money, and that Mr Rodgers’ response was in the email.27 [70] In reply, Ms Adams swore28 that what Peter Rodgers said in his email dated 5 February 2024 was “a lot of false information” and that his “reply is incorrect and fabricated.” [71] In elaboration,29 she swore the truth of the following. The only thing I would like to add is that what is true in that statement is the $800 and that is what confirmed a longer stay. I have provided those invoices to confirm the length of stay, which was about five weeks, and that is what was certainly correct in that statement, and I believe that is what only (sic) needs to apply to the court hearing. [72] Ms Adams confirmed that she was referring to the two invoices, one for $800 and one for $4000. [73] She said that she stayed at the Resort for the entire period 27 October 2023 to 1 December 2023 and that “I’m dealing with the Department which is the head office in Brisbane”30 and …. “I think that all (sic) that needs to be confirmed is the amount that was required per week.” Liability [74] I find that: (a) Mr and Mrs Kolkka were obliged to give a minimum of two months’ notice in the proper form, at that time a Form 12 Notice to leave without ground to end what was a periodic tenancy or, after issuing a Form 11 Notice to remedy rent breach for rent that remained unpaid, a Form 12 Notice to leave of at least seven days for rent breach. 27 Transcript 6 March 2024, T1-2 lines 5 to 52 and T1-3 lines 1 to 21 28 Ibid, T1-3 lines 23 to 48 and T1-4 lines 1 to 11 29 Ibid, T1-4 lines 15 to 48. 30 Ibid, T1-5 lines 1 to 30 -- 10 of 13 -- 11 (b) No such Notices issued. (c) Having done none of those things required by the RTRAA as precursors to applying to this Tribunal for a termination order, informal notice of only one month to Ms Adams even though inserted in the signed agreement was in isolation ineffective to end the tenancy. [75] However, the text message giving 4 weeks’ notice provided for in the signed agreement nevertheless conveyed to Ms Adams that Mr and Mrs Kolkka wanted her to leave within the month. [76] Rather than rejecting the request, Ms Adams agreed unambiguously in two text messages to do so, though she subsequently sought an extra month that was not agreed. [77] An agreement to so end the tenancy was formed by the first thumbs up text in Ms Adams’ response to the informal notice of one month. [78] Emoji graphics are widely used in electronic communication. They convey expression and have meaning. Emojipedia in the “gestures and expressions” section explains: “Thumbs Up. A thumbs up gesture indicates approval.” [79] In my opinion, approval is a synonym for acceptance or agreement. [80] By analogy, see in that regard South West Terminal Ltd v Achter Land & Cattle [2023] SKKB 116 (Achter) which is a Canadian decision of the Kings Bench for Sasketchewan in which Justice Keene at [63] said: (T)his court readily acknowledges that a (thumbs up) emoji is a non-traditional means to ‘sign’ a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a ‘signature’ – to identify the signator (Chris using his unique cell phone number) and as I have found above – to convey Achter’s acceptance of the flax contract. [81] Though not binding in Australia, the decision in Achter in an overseas common law jurisdiction is both persuasive and consistent with technological developments in modern day electronic communication worldwide. [82] Insofar as the relevance and importance of emoji expression communicated in different contexts in Australia is concerned, see Rush v Nationwide News Pty Ltd (No. 7) [2019] FCA 496, a defamation case, and Re Nichol [2017] QSC 220 where in a testamentary dispute an unsent text message and smiley emoticon did not prevent it constituting a will. [83] The agreement to end the tenancy early was also confirmed in Ms Adams’ subsequent text in the following terms, to which I referred earlier. I understand but I can’t be asked to leave at such short notice with now (sic) where to go. You gave 4 weeks notice. I will have the flat cleaned and will be out (sic) next Friday. [84] By that text Ms Adams waived her right to object to the short notice to which she referred. [85] In combination, I find that the three texts to which I have referred, two of which from Ms Adams, satisfied the requirements of section 277(a) of the RTRAA to end the tenancy. -- 11 of 13 -- 12 [86] That is because, as a matter of statutory interpretation, the singular includes the plural and vice versa,31 that is – document includes documents; texts are electronic documents because as defined in Schedule 1 in the Acts Interpretation Act 1954 (Qld) they are a record of information that exists in digital form capable of being reproduced, transmitted, stored or duplicated by electronic means, and a “document” means a record of information, however recorded and includes an electronic document. [87] The lessor/s (Mr and Mrs Kolkka) and tenant (Ms Adams) by those texts agreed in a separate written document to end the residential tenancy on 25 August 2023 though Ms Adams left a day early on 24 August 2023. Each of the texts were in substance digital documents sent electronically as between the users of the respective cell phones, Mr Kolkka and Ms Adams. [88] If, as I have found, the tenancy ended by the agreement in writing then Ms Adams has no cause of action for damages for unlawful eviction and her application falls to be dismissed. [89] In the alternative and only if I were incorrect in that finding, I find that Ms Adams has not discharged the onus resting with her to prove compensable loss recoverable from Mr and Mrs Kolkka. [90] My reasons for that conclusion are as follows. [91] I find that when it suited her case Ms Adams was not an entirely truthful witness. [92] I do not accept her evidence that what Peter Rodgers of Hedge said in his email to Mr Kolkka dated 5 February 2024 was “incorrect” and “a fabrication.” Mr Rodgers would have no reason to concoct such a story to assist Mr and Mrs Kolkka. [93] Rather, I find that Ms Adams herself fabricated evidence that she stayed at Beachside Resort Buddina for the period to 1 December 2023 in the knowledge that she in fact only stayed there 5 nights after taking occupation by subterfuge in circumstances where, on her own evidence, she could not afford to pay the agreed long stay rent. [94] I find that Ms Adams did not stay at the Resort beyond the date of her eviction by the Queensland Police Service after 5 nights from her arrival. It is very improbable that Hedge would have accepted her back in that circumstance, still owing money. [95] I find that she did not return after that, yet even when confronted by evidence to the contrary Ms Adams continued to assert that she stayed there to 1 December 2023. [96] That is in all probability why the Resort invoices were only proforma invoices. [97] It follows that I accept the evidence of Mr and Mrs Kolkka who struck me as truthful witnesses in preference to the evidence of Ms Adams, wherever her evidence conflicts with their evidence. [98] I find that: (a) Ms Adams voluntarily agreed to leave the tenanted property and return the key to Mr and Mrs Kolkka on Thursday 24 August 2023 though she had previously said she would leave that Friday. 31 Acts Interpretation Act 1954 (Qld), s 32C - Number -- 12 of 13 -- 13 (b) She vacated and returned the key because she no longer had employment on the Gold Coast and rent was again in arrears. (c) Ms Adams had rented a hire car for the purpose several days beforehand in contemplation of the move and loaded her belongings in the car on 24 August 2023 before handing back the key. (d) On her insistence, Ms Adams completed the exit unassisted and unaccompanied by either Mr or Mrs Kollka. (e) Ms Adams was neither forcibly evicted nor intimidated by Mr and Mrs Kolkka, as she subsequently alleged. (f) She did have somewhere else to go to, described in the letter to her solicitors dated 11 September 2023 as “temporary accommodation.” (g) Ms Adams admitted in evidence staying with friends after she left. She was not rendered homeless. (h) The Queensland Police Service evicted her from the Resort on the Sunshine Coast in early November 2023 for failure to pay the agreed upfront cost of accommodation there. (i) Staying at a Resort for $800 a week was an expensive indulgence, not conduct in mitigation of alleged loss and damage. (j) The car hire invoices to Ms Adams in October and/or November 2023 related to her travel between the Maroochydore Airport and the Gold Coast Airport where she was looking for re-employment. [99] The incurring of the claimed costs or liabilities was not caused by the ending of the tenancy with Mr and Mrs Kolkka on the Gold Coast nor any breach of the granny flat agreement and they are therefore not liable to compensate her. Order [100] The Application filed on 4 December 2023 is therefore dismissed. -- 13 of 13 --