Astill Legal Group Pty Ltd & Anor v Centrepoint Real Estate Pty Ltd t/as First National Centrepoint & Ors [2022] QCAT 399

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Astill Legal Group Pty Ltd & Anor v Centrepoint Real Estate Pty Ltd t/as First National Centrepoint & Ors [2022] QCAT 399 PARTIES: ASTILL LEGAL GROUP PTY LTD ROWAN ANDREW ASTILL (applicant) v CENTREPOINT REAL ESTATE PTY LTD T/A FIRST NATIONAL CENTREPOINT ABN 51 604 227 152 ASHAY SHARMA KIERAN ESWARAN (respondent) APPLICATION NO/S: T0000450/22 MATTER TYPE: Residential tenancy matters DELIVERED ON: 24 November 2022 HEARING DATE: 27 May 2022, 5 July 2022 HEARD AT: Southport DECISION OF: Adjudicator Alan Walsh ORDERS: 1. The Applicants’ claims other than for bond are dismissed. 2. On the Counter-application, the Applicants pay the Respondents $3,576.50. 3. The Residential Tenancies Authority pay $3,576.50 from the bond of $5,600.00 to the Respondents in settlement of Order 2. 4. The Residential Tenancies Authority pay the balance of bond in the amount $2,023.50 to the Applicants. 5. The parties each bear their own cost of the filing fee. CATCHWORDS: CIVIL LAW – CIVIL TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where former tenant claims compensation for repudiation of residential tenancy agreement and breach of lease – where claim for return of bond – where claim limited to $25,000.00 – where liability denied – where former agent and lessors -- 1 of 27 -- 2 counterclaim $4,050.43 for end of lease repairs, cleaning, and water charges – where counter-claim for bond to that amount – where liability of each to other denied CIVIL LAW – CIVIL TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – LANDLORD AND TENANT – where tenant an incorporated legal practice – where company director did not sign lease as co-tenant with company – where company director used premises as home office for practice during COVID-19 pandemic – where company director and family resided in the premises CIVIL LAW – CIVIL TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – JURISDICTION – whether company capable of residing in residential premises – whether company a residential tenant - whether company director a residential tenant by operation of law – whether director a tenant in own right by oral agreement – whether parties intended director be a cotenant with company – whether Tribunal has jurisdiction LANDLORD AND TENANT – TERMINATION OF RESIDENTIAL TENANCY IN QUEENSLAND – where fixed term lease – where agent gave tenant notice to leave without ground for vacate date six months before end of tenancy fixed term – where notice invalid – where tenant asserted invalidity EQUITY GENERAL PRONCPLES – EQUITABLE DOCTRINES AND PRESUMPTIONS – ELECTION GENERALLY – where tenant affirmed fixed term lease – where tenant later gave notice of intention to leave without ground – where vacate date four months before fixed term ended – whether notice of intention to leave effective to end lease – whether residential tenancy in Queensland terminable by acceptance of repudiation – whether tenancy repudiated – whether repudiation accepted LANDLORD AND TENANT – TERMINATION OF RESIDENTIAL TENANCY IN QUEENSLAND – TERMINATION BY SEPARATE AGREEMENT IN WRITING – where parties agreed tenancy end on vacate date in notice of intention to leave – where agreement in writing by exchange of emails but for differing reasons – whether tenancy ended by written agreement Acts Interpretation Act 1954 (Qld), s 32A, s 32AA, s 32D, s 35A, s 36, s 49A, Schedule 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12, s 13 -- 2 of 27 -- 3 Residential Tenancies and Rooming Accommodation Act 2009 (Qld), s 5, s 10, s 11, s 12, s 13, s 20, s 22, s 23, s 27, s 52, s 54, s 61, s 65, s 66, s 70, s 185, s 188, s 210, s 277, s 291, s 301, s 308, s 326, s. 362, s 414, s 414A, s 416, s 417, s 418, s 419, s 420, s 421, s 424, s 426, s 429, s 429, s 506, Schedule 1, Schedule 2 Residential Tenancies and Rooming Accommodation Regulation 2009 (Qld), Schedule 1 – General Tenancy Agreements Amos v Fett & Anor [2016] QCATA 120 Bank of Queensland Limited v Y & L Promising Pty Ltd [2022] QCA 217 Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277 Bowes v Chaleyer (1923) 32 CLR 159 Champion v Laterma Pty Ltd [2018] QCAT 392 Commonwealth v Verwayen (1990) 170 CLR 394 Evans v Saarman [2013] QCATA 58 Gold Coast Property Expo v Rhodes [2022] QCATA 120 Hiscox v PBG Realty [2019] QCATA 112 Hossain v Ray White Sunnybank Hills [2022] QCATA 66 Lobato v Gardian Real Estate [2021] QCATA 130 Mandurah Enterprises Pty Ltd v Western Australian Planning Commission (2008) 38 WAR 276 Mills v Meeking (1990) 169 CLR 214 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 – 147 CLR 589 PJD Group Pty Ltd t/as Esk Caravan Park v Both & Ors [2017] QCATA 94 Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 Russo v Propertyman [2016] QCATA 200 Special Projects (Qld) Pty Ltd v Simmons 2012 QCA 205 Till and Till ATF The Till Family Trust t/as Mt Cotton Truck Hire v Rose [2015] QCATA 173 Till & Anor v Rose [2016] QCA 127 United Australia Ltd v Barclays Bank Ltd [1941] AC 1 University of Wollongong v Metwally (No. 2) [1985] HCA 28 Wendt v Bruce (1931) 45 CLR 245 X v Australian Prudential Regulation Authority (2007) 226 CLR 630 JW Carter, 7th edition, Contract Law in Australia, [30]- [45]; [31-05] APPEARANCES & REPRESENTATION: -- 3 of 27 -- 4 Applicant: Mr R Astill, Director Respondent: Ms S Patterson and Ms N Vikas, Property Managers REASONS FOR DECISION Introduction [1] Residential tenancy disputes involving claims of up to $25,000.00 are core daily business in the Queensland Civil and Administrative Tribunal in its minor civil dispute jurisdiction. Most are decided on the day with reasons given orally but decisions in complex cases may be reserved for publication later. This is such a case. Claim [2] Astill Legal Group Pty Ltd (Astill Legal Group) is an incorporated legal practice. It, together with its sole director and shareholder, Rowan Astill, are claiming $25,000.00 in compensation for breach of a residential tenancy agreement, and repayment of the bond for the tenancy of a waterfront property at Merrimac Boulevard, Broadbeach Waters, in the period 2020 to 2022, let and managed by Centrepoint Real Estate Pty Ltd t/a First National Centrepoint on behalf of owners Ashay Sharma and Kieran Eswaran. [3] The claim is for - 1. $19,571.42 for compensation ‘increase rent”. 2. $5,600.00 for full bond refund. 3. $2,101.91 for removal expenses. 4. $501.96 for key replacement. Less abandoned monetary claim - $2,775.29. [4] The Applicants want reimbursement of the filing fee of $358.00 paid to QCAT Registry. [5] The basis of the claim for compensation for “increase rent” is set out in the Applicants’ written submissions dated 22 May 2022 and 16 August 2022 respectively. In summary, they say: 1. the agent evinced an intention no longer to be bound by the terms of the second of two residential tenancy agreements between the parties (a repudiation) by issuing an invalid Form 12 Notice to leave without ground for a vacate date many months earlier than the expiry date of the fixed term of the lease. 2. they ended the lease by accepting the repudiation. 3. on that account, their entitlement is compensation for - (i) damages calculated as the difference between the rent payable under the terminated lease for its’ otherwise unexpired term and a much higher rental for residential premises elsewhere. (ii) removal expenses incurred prematurely; and -- 4 of 27 -- 5 (iii) the cost of changing locks during the second lease to stop unauthorised entry of tradespeople calling to repair building defects. [6] Prior to commencing proceedings, the Applicants digitally lodged a Dispute resolution request about bond with the Residential Tenancies Authority on 10 March 2022. The Authority issued a Notice of Unresolved Dispute (a NURD) dated 14 April 2022. [7] The Applicants subsequently lodged another Dispute resolution request (Form 16) dated 19 April 2022 with the Authority about “wrongful repudiation of fixed term tenancy” and “unlawful notice.” Apparently, the Authority did not issue a second NURD to the parties. I infer this was because the Authority took the view that the issue was covered in the first conciliation process.1 [8] The Applicants filed their Application to QCAT at the Southport Registry on 22 April 2022. Counterclaim [9] First National Centrepoint and the owners deny liability and counterclaim $4,050.43 in compensation for breach of the residential tenancy agreement and payment of that amount from the bond in settlement of the alleged liability. [10] The counter-claim comprises - 1. $742.50 for cleaning. 2. $198.00 for carpet cleaning and removal of dog faeces. 3. $2,165.00 for internal repairs, painting, and external cleaning. 4. $671.00 for curtain repairs and cleaning. 5. $273.93 for water usage to vacate date. [11] The Respondents want reimbursement of their filing fee, also $358.00. [12] The basis of the Applicants’ defence to the counter-claim is also set out in their written submissions, which I summarise as follows. 1. They left the Merrimac Boulevard property in the same order and condition as it was at the start of that lease. 2. The agent neglected to prepare an entry condition report at the start of a second lease, so the Respondents are thus prevented from making a counterclaim for compensation for cleaning and repair. 3. Regarding the agent’s enlarged exit condition photographs paginated 11 to 99 accompanying the exit condition report filed with the Tribunal and served by the Respondents on the Applicants on 5 August 2022, the Applicants say as follows – (i) As to skirting boards and a removed gate, “we can only submit that the skirting boards were replaced by the builder during the course of 1 Submission of Rowan Astill by email dated 22 November 2022. -- 5 of 27 -- 6 construction while we were not in occupation and remained in the same condition until the tenancy was terminated.” (ii) Similarly, the gate was removed by the builder when the upper floor was resealed and retiled and was not put back by the builder. (iii) Attached to the submissions are two Apple iPhone Images of a column with detached gate leaning against a wall with the annotation “Danielle Astill shared with you > Sunday 15 August 2021 4:58 pm” taken after inspection of the building in the company of Mr Ashay Sharma. (iv) It is “absolutely mischievous for the Respondents to suggest that the Applicants removed and/or damaged the gate.” 4. This Application is the result of inept and incompetent management relying on a computer “system.” 5. The system is “only as good as its inputs (unfounded claims for rental arrears and denial of the existence of a fixed term agreement) and corrupt practices (e.g., claiming for exterior cleaning of the house etc.) for Bond Return on the part of the Property Manager and the Owners.” [13] First National Centrepoint did not lodge a Dispute resolution request with the Authority about bond. However, QCAT case law confirms that no further request was required from the agent in duplication of the Applicants’ Form 16 previously lodged. In Evans v Saarman [2013] QCATA 58 (Saarman) at [5], Senior Member Stilgoe OAM (as she then was) said it would be an artificial reading of section 416 of the Residential Tenancies Authority and Rooming Accommodation Act 2008 (Qld) to require two requests to conciliate the same issue, the purpose of the section being achieved by the first so the second would lack utility. [14] Therefore, the Tribunal has jurisdiction to adjudicate the Counter-application. Facts/Evidence [15] Astill Legal Group,2 by its legal director Rowan Astill, signed a Form 18a General Tenancy Agreement3 (the first lease) with First National Centrepoint as agent for the owners to rent a property in Merrimac Boulevard, Broadbeach Waters (the property) for a fixed term commencing on 20 April 2020 and ending on 18 April 2021 at a rent of $1,400.00 per week. Mr Astill was not personally named as a tenant. Astill Legal Group paid a bond of $5,600.00 which the agent lodged with the Residential Tenancies Authority and, together with approved occupants, the company by its director Mr Astill took possession of the property on 20 April 2020. [16] Item 15 in the Items Schedule of the first lease provided that three persons were allowed to reside on the premises and item 17 provided that the Astill family pet, a Shitzu Cross Poodle, would be kept on the property. Though not stated in the lease, as well as him living there, the property would (and did) serve as Mr Astill’s office during the Covid-19 pandemic, though Astill Legal Group also leased commercial premises for the practice in Surfers Paradise. 2 Identified as Tenant 1 on the signing page. 3 Affidavit of Mr Astill sworn 21 April 2022, paragraph 1 in reference to exhibit RAA-1. -- 6 of 27 -- 7 [17] The fixed term of the first lease identified in Item 6.1 and 6.2 of the Items Schedule referred to clause 6 of the Standard Terms, a provision for continuation of the tenancy agreement in the event of the tenant holding over after expiry of the fixed term. [18] Clause 6 of the first lease referred to section 70 of the RTRAA and provided as follows. (1) This clause applies if – 1. this agreement is a fixed term agreement; and 2. none of the following notices are given, or agreements or applications made before the day the term ends (the end day) – (i) a notice to leave; (ii) a notice of intention to leave; (iii) an abandonment termination notice; (iv) a notice, agreement or application relating to the death of a sole tenant under section 277(7); (v) a written agreement between the lessor and tenant to end the agreement. (2) This agreement, other than a term about this agreement’s term, continues to apply after the end day on the basis that the tenant is holding over under a periodic agreement. [19] The first lease was meant to provide residential accommodation for Mr Astill and his family, according to him.4 Ms Vikas of the agent said she accepted that Mr Astill was a tenant.5 However, those statements seem uncomfortably at odds with the following. 1. Mr Astill asked the agent to name only Astill Legal Group as the tenant,6 which it did. 2. It was in the middle of COVID and there were periods when his office said he should work from home which was “part of the reason why it’s in the – it’s not in my personal name.”7 3. Notices later issued by Astill Legal Group and the agent respectively did not identify and name Mr Astill as a tenant and were not signed by him in his personal capacity. [20] A relatively recent build and tenanted only once previously, the dwelling on the property suffered from pre-existing building defects at the commencement of the first lease. Between 20 and 30 April 2020, tradespeople appointed by the agent attended the property to carry out repairs of building defects and damage from water leaks noted by the agent in the Entry Condition Report at the start of the tenancy, that is - 4 Transcript 27 May 2022, T1-8 at lines 5 to 14. 5 Ibid, T1-9 at lines 9 to 15. 6 Ibid, T1-7 at lines 43 to 47. 7 Ibid, T1-7 lines 1 to 4. -- 7 of 27 -- 8 wall defects in the entry and loungeroom areas and water damage to the ceiling and hallway in bedroom 4 to be rectified or repaired. [21] In general comments at the end of the Entry Condition Report, it was noted that the dwelling was a “brand new build – second tenants.” Overall, the Entry Condition Report recorded that all parts of the property were clean, working, and undamaged, evidencing that First National Centrepoint handed over the property to the tenant in that condition at the start of the tenancy. An unsigned copy of the Entry Condition Report is filed in the present proceedings together accompanying photographs together with a signed key sheet.8 [22] In an email to Mr Astill dated 8 July 2020, the agent noted that the Report had not been returned in accordance with Clause 5 of the Standard Terms of lease and section 65 of the QCAT Act, and that it would be “used at the end of the tenancy to determine the property has been returned in the same condition as it was found; except for any reasonable wear and tear.”9 [23] Eventually, the Entry Condition Report signed, but not dated, by Mr Astill, did arrive. It was originally signed by Melissa Botherway of the agent on 24 April 2020 and was filed with the agents counter-application in the prior proceedings filed by Astill Legal Group and Mr Astill in T772/20. I have had regard to that Tribunal file. Mr Astill signed the last page of the Entry Condition Report and initialled each other page but did not write anything in the tenant’s comment column or challenge its accuracy. [24] The repair works identified in the Entry Condition Report were duly performed but they caused inconvenience, interfered with quiet and peaceful enjoyment, and affected amenity. In consequence, Astill Legal Group and Mr Astill filed an Application T772/20 for compensation with the Southport Registry of the Tribunal on 10 June 2020 and, on 19 August 2020, an Adjudicator awarded compensation in the amount of $1,451.60 to be reflected as a credit for rent in the ledger. [25] I am satisfied, having regard to the following documents filed by the agent with the Counter-application in T772/20, that the property was in all respects completely clean and cleaned after those repair works. A&B Tax Invoice dated 12 May 2020 for items per list supplied and “extra cleaning completed as per new tenants request”. Christian Wanis Window Cleaning Tax Invoice dated 5 June 2020 for windows cleaned in and out. Statement (Declaration) of Tom Fraser, Builder and Director of EBQ Homes 24 June 2020. [26] Problems associated with building defects persisted. [27] The dwelling suffered further water damage in extreme weather events in early 2021, for which repairs were authorised on or about 12 April 2021. By agreement direct between the owner and the tenant by text messages10 exchanged on 15 April 2021, 8 Paragraph 2 of the attachment to the counterapplication and annexure 1(a). 9 The email is filed in T772/20. 10 Affidavit of Rowan Astill sworn 21 April 2022, paragraph 4 in reference to exhibit RAA-4, and affidavit of Sharen Patterson sworn 23 June 2022, paragraph 2. -- 8 of 27 -- 9 rent reduced by $400.00 to $1,000.00 per week from 12 April 2021 “until the damages/leaks are repaired” and “New lease be signed for 12 months after that.” [28] At no time prior to and including 18 April 2021, the end of the fixed term of the first lease, did anyone give to anyone else a Notice to Leave, a Notice of Intention to Leave, an Abandonment Termination Notice, or any other Notice. Nor did the parties agree in writing to end the lease. [29] The owners’ insurer appointed a builder for further repair work in early May 2021 due to the extent of the damage. The builder asked the Astill family to leave for about three weeks so it could rectify the larger issues and mould, identifying 24 May 2021 for return. [30] The owners subsequently engaged their own builder EBQ to complete restoration work because the insurer’s builder became unavailable.11 Mr Astill agreed with “Ash” (Ashay Sharma - one of the owners) to vacate the property during those repairs, that rent “immediately abate”12 (to nil) until the repairs were completed, and that the Astills leave their furniture packed and stored in unaffected rooms of the premises and retain their keys to the property while living elsewhere, “a new lease (to be) signed for 12 months after that.”13 [31] The Astill family could, and did on several occasions, access their stored belongings at any time they wished.14 The electricity account for the property remained in Mr Astill’s name. The owners agreed that he would not have to pay for electricity in this period because the builder would, and did, use it in repair work performed. [32] Repairs expected to take three weeks extended to three months. During that time, the Astill family stayed in Airbnb accommodation in Broadbeach Waters and later in Surfers Paradise at their cost. On about 12 July 2021, Mr Sharma informed Mr Astill that the property would be ready for re-occupation on 18 July 2021,15 and the Astill family returned to the property thereabouts. [33] Astill Legal Group signed a further Form 18a General Tenancy Agreement (the second lease) on 15 July 2021 with First National Centrepoint for the property at the same rent for a new fixed term commencing 19 July 2021 and ending on 18 July 2022.16 Again, Mr Astill personally was not named as a tenant. [34] As appears from documents filed by the agent in T772/20, the first lease was executed, via Docusign. See exhibit RAA-1 to Mr Astill’s affidavit sworn on 10 June 2020. Also see exhibit RAA-2, an email from Michelle Raymond of First National Centrepoint to Mr Astill dated 6 March 2020 which stated that all tenancy documents would be sent via Docusign for electronic signing. The second lease was also executed through Docusign. [35] Amongst the bundle of documents which is exhibit RAA-9 to the Affidavit of Rowan Astill sworn 21 April 2022 in the present proceedings, is a Docusign Register of events which confirmed that the final draft of the second lease was viewed and 11 Affidavit of Sharen Patterson, ibid. 12 Affidavit of Rowan Astill sworn 21 April 2022, paragraph 4. 13 Ibid. 14 Affidavit of Sharen Patterson sworn 23 June 2022, paragraph 2; Also, the affidavit of Mrs Astill to which I refer later. 15 Ibid, paragraph 5. 16 Ibid and see exhibit RAA-5. -- 9 of 27 -- 10 accepted in full by Mr Astill as director at 1:19 pm and signed by him at 1:22 pm on 15 July 2021 and viewed and accepted in full by one Aaron Smith, property manager of the agent, at 1:33 pm and signed by him at 1:34 pm on 15 July 2021.The Docusign Register confirmed that the contract was then finalised. [36] Using secure Distributed Ledger Technology, Docusign emailed Mr Astill on 15 July 2021 saying – “Congratulations! Here is your contract for (the property). Great news! Everyone has signed the General Tenancy Agreement. A copy of the final signed contract is attached to this email.” [37] I find it more likely than not that the agent simultaneously received notification from Docusign in identical terms, such are the wonders of instant distributive technology. [38] Any expectation of harmony in the future would be very short lived. [39] Soon after 18 July 2021, building sub-contractors revisited the property without entry notice/s, using keys given to them by someone other than Astill Legal Group or Mr Astill. Mr Astill awoke one Sunday morning to the sound of music, entertainment for a visiting tiler working at the property who turned up unannounced. Concerned about the security breach, Mr Astill changed the locks and asked for reimbursement of the associated cost of $501.96.17 [40] The owner said he understood why Mr Astill would do so and asked that he give the agent a new key,18 but did not agree to reimburse him. [41] Next, in the (allegedly) mistaken belief19 that the second lease had not been signed or in the erroneous belief that it was “voided before it was signed,” First National Centrepoint gave Mr Astill a two-month Form 12 Notice to Leave without ground20 on 23 November 2021 to expire on 24 January 2022 - a date approximately six months prior to the expiry of the fixed term of the second lease. Mr Astill, an experienced solicitor, immediately recognised that the Notice was invalid. He confirmed this in an email to the agent the same day,21 saying: – I am somewhat bemused by your invalid Notice to Leave. As you know we have a “Fixed Tenancy” which ends on 18 July 2022. [42] Ms Patterson promptly sent Mr Astill an email thanking him for his reply and asking for a copy of the signed lease because, she said, her system showed he was on a periodic lease and that was also the owner’s impression. She also said that the owner was hoping for vacant possession “so we can look at all the issues you report on a regular basis but don’t allow us access.” [43] By further email sent late afternoon on 23 November 2021, Ms Patterson said that she had spoken to many people including Docusign regarding the lease and its legal standing and was waiting for the REIQ to respond and confirm. She said that she was not really concerned whether Mr Astill had a lease or not, however, if the water issues got worse, regardless of whether a lease was signed, the agent would need vacant possession anyway. 17 Ibid, paragraph 6 and exhibit RAA-6. 18 Ibid, exhibit RAA-7. 19 Ibid, see the email correspondence from Ms Patterson forming part of exhibit RAA-8. 20 Ibid, paragraph 8 and exhibit RAA-8. 21 Ibid. -- 10 of 27 -- 11 [44] Ms Patterson also complained that the owners were “trying to get serious maintenance repaired but are unable to due to your lack of communication, refusal to answer your phones or respond to the contractors” and asked for a spare key to the front door lock that “seemed to have been changed.” [45] In his email sent on 24 November 2021,22 Mr Astill accused Ms Patterson of incompetence, threatening behaviour, and dishonesty, the detail of which it is unnecessary to repeat for present purposes. He justified the change of locks by reference to an unauthorised entry on 17 August 2021. Mr Astill said – “your remedy is QCAT Order.” [46] Mr Astill said that the key could be collected at his office by an authorised person with proof of identity “on the understanding that the above illegal entry attempts will never happen again.” He demanded reimbursement of $501.96 for locksmith expense and provided bank account details for Astill Legal Group, but payment was never forthcoming. [47] Mrs Patterson says that the agent did respond, saying that the Form 12 Notice to Leave had been issued in error and that it was withdrawn, but Mr Astill says he did not receive a letter to that effect. [48] In the attachment to the Counter-application, Ms Patterson said that the “software system had the lease end being the 18/07/2021, we didn’t have a signed lease renewal on file & the owners didn’t have a copy of the lease extension.” She said that (ultimately) “we were advised that a new lease wasn’t required as the docusign sign stamped lease was deemed valid.” [49] I find that the agent did not competently manage the property in the following respects. [50] On Ms Patterson’s own admission, record keeping of essential contractual documents on the property management file was incomplete. There is no doubt that First National Centrepoint knew from their own correspondence that both the first and second leases had been completely executed via Docusign. The agent’s failure to update software input to correctly record the existence and expiry date of the second lease is evidence of the agent’s incompetence. It caused the issue of an invalid Form 12 to the tenant. On one occasion, Mr Astill received a message that rent was in arrears, when in fact that was not so. I have no doubt that these incidents caused the Astill family a deal of unnecessary discomfort and anxiety. [51] The agent did not produce any evidence of the email allegedly notifying Mr Astill that the Form 12 was withdrawn, as Ms Patterson said had occurred. However, self- evidently, an invalid Form 12 Notice to leave is just that – invalid, a nullity legally speaking. There was, strictly speaking, no requirement to withdraw an invalid Notice, other than common courtesy. It was open to Astill Legal Group at the time to apply to the Tribunal for confirmation of the invalidity. It did not do so. Mr Astill is an experienced lawyer. He knew the Form 12 was a nullity. Hence, his email to the agent affirming the second lease and asserting the invalidity. That was the reason why the Astill family did not vacate the property on (or before) 24 January 2022, the vacate date referred to in the Form 12, or at any time before 3 March 2022. 22 Ibid, paragraph 9 in reference to exhibit RAA-9. -- 11 of 27 -- 12 [52] First National Centrepoint also gave Astill Legal Group a Form 11 Notice to Remedy Breach issued on 4 January 2022, alleging tenant misbehaviour in interfering with the quiet and peaceful enjoyment of neighbours. It required that the breach be remedied by 12 January 2022.23 In an accompanying email, Ms Patterson said the information came from “surrounding neighbours with regards to your recent behaviour in the property & towards neighbouring tenants”, that the police and owners had been notified and, if further complaints were received in the following 7 days, a Form 12 Notice to Leave would follow. [53] Ms Patterson also said that the owner had requested an inspection “due to the number of people coming & going as well as the all-night parties” and First National Centrepoint subsequently issued another Form 11 Notice to Remedy Breach24 by email on 1 February 2022 which Mr Astill says he received on 3 February 2022. Mr Astill disputed the veracity of the allegations in the Forms 11 and correspondence. [54] I do not adjudicate the validity or otherwise of the Forms 11 or the veracity of the agent’s allegations of tenant misconduct or the tenant’s denials. Astill Legal Group did not apply to the Tribunal to set them aside, as could have been done at the time. They are not relevant to the way in which the second lease ended. Nor are they relevant to the basis on which compensation is claimed in this Application. [55] The second lease ended in the following way. [56] Astill Legal Group and Mr Astill signed a lease of other premises at Gibraltar Drive, Surfers Paradise, on 16 February 2022, which Ray White Surfers Paradise on behalf of another owner signed on 17 February 2022, for a term commencing on 23 February 2022 at a rent of $2,400.00 a week.25 The differential $1,000.00 a week in rent for the period 3 March 2022 to 18 July 2022 in terms of the second lease makes up the bulk of the Applicant’s claim for compensation. [57] Upon formation of the new lease for the Gibraltar Drive property, Astill Legal Group gave First National Centrepoint a Form 13 Notice of Intention to Leave without ground (my emphasis) on 17 February 2022 for a vacate date of 3 March 202226 by email. [58] In response, on 17 February 2022 by email, Ms Patterson of First National Centrepoint (correctly) noted that Astill Legal Group had an existing lease in place until 18 July 2022, that technically this was a “break lease situation” but that, having explained the benefits of terminating the lease prior to expiry, the owners had agreed to “let you vacate on the 03/03/2022 subject to the property being handed back in a professional manner & providing carpet cleaning receipts and flea treatment receipts provided.”27 [59] I find that Ms Patterson correctly identified that the Form 13 Notice of Intention to Leave without ground was ineffective to end the lease because, without ground, it nominated a vacate date prior to the date on which the fixed term of the second lease would end – 18 July 2022.28 23 Ibid, paragraph 11 and exhibit RAA-10. 24 Document marked Attachment 5(B) attached to the counter-application. 25 Affidavit of Rowan Astill sworn 21 April 2022, paragraph 13, and exhibit RAA-11. 26 Ibid, paragraph 13 and exhibit RAA-12. 27 Ibid, paragraph 14 and exhibit RAA-13. 28 See Hiscox v PBG Realty [2019] QCATA 112; Lobato v Gardian Real Estate [2021] QCATA 130, [17]; Hossain v Ray White Sunnybank Hills [2022] QCATA 66, [17]-[18]. -- 12 of 27 -- 13 [60] In reply, by email29 on 2 March 2022, Mr Astill said that Ms Patterson and the owners had repudiated the lease by issuing the Notice to Leave on 23 November 2021 and claiming the lease was voided before signature, that she had refused after “vigorous exchange of emails” to unconditionally withdraw the Notice to Leave, that in the result he (Astill Legal Group) gave Notice of Intention to Leave on 17 February 2022 thereby accepting her repudiation of the lease, that he had a teenager in his final year studying for his best tertiary entrance score, and that Mr Astill and his family could not “continue to reside under the cloud that you created.” [61] Mr Astill said – You are reminded that the tenancy ends at MIDNIGHT on Thursday 3.3.22. Any prior entry is unlawful. We have thus far removed our contents, completed a Bond Clean, carpets professionally cleaned and pest controlled. We have a couple of items yet to be removed which is in progress. Given your Wrongful Repudiation of the Lease I subsequently managed to secure a similar rental property. However, as you are aware rents have increased dramatically. My (sic) new rental is $2,400.00 per week. I notify you and the owners that I will be instituting court proceedings next week for the following orders. • Compensation for increased rent 3.3.22 to 18.7.22 @ $1,000.00 per week = 137 days = $19,571.42 • Full Refund of Bond - $5,600.00 • Removal Expenses - $5,250.00 • Damages for Distress - $2,000.00 TOTAL CLAIM $32,421.42 The keys will be on the kitchen table when we have finalised our move. Rowan Astill Legal Practitioner Director [62] In combination and context, I find that the exchange of those emails constituted an agreement in writing that the second lease would end on 3 March 2022. I find the agent’s requirement that the property be handed back in a professional manner was not a condition precedent to the agreement, rather – it was a statement of the tenant’s legal obligation when returning vacant possession of the property, to which the tenant would be held. Though for differing reasons, I find that the second lease ended on 3 March 2022. The fact of the agreement to end the tenancy is what is material, not the differing reasons for it. [63] I now turn to the Applicants’ claim for removal expenses and the counterclaim for the condition in which the Merrimac Boulevard property was left on 3 March 2022. 29 Affidavit of Rowan Astill sworn 21 April 2022, paragraph 15 and exhibit RAA-14. -- 13 of 27 -- 14 [64] Exhibited to Mr Astill’s affidavit sworn 21 April 2022 are several photographs of some parts of the premises showing them to be clean. Also exhibited are the following Astill documents relating to expenditure. 1. RAA-3 MC TRADIES Gold Coast Invoice 18/6/21 to “Danielle” for $2,420.00 for dismantling, wrapping, and removing furniture on three floors to a safe location. 2. RAA-6 SPL Locksmiths Invoice 2/8/21 to Astill Legal Group for $431.96 for rekeying locks. 3. RAA-15 GGC Removals Invoice 23/2/22 to Danielle Astill for $5,251.55 for packing and removal of the Astill household contents. 4. RAA-15 1st Class Cleaners Estimate 1/3/22 (no addressee) for $150.00 for Carpet and Pest Control and related NAB Connect – Domestic Payment Report for payment of that amount on 1/3/22 authorised by Mr Astill. 5. RAA-15 NAB Connect – Domestic payment report for payment on 3/3/22 of $660.00 to Wendy Hutchen for cleaning authorised by Mr Astill. [65] RAA-16 is a NAB Connect BPAY Report 23/7/2021 for CBA credit card reimbursement of $869.00 from General Account. In reference to RAA-16, Mr Astill said in his affidavit that no invoice issued for the expenditure but that it was for a cash payment made to a cleaner to clean builder’s dust and tile grout dust out of the premises after the Astill family returned to the property on 18 July 2021. [66] There is no supporting statement from the cleaner. The assertion that this cleaning was performed conflicts with Mr Astill’s statement in written submissions30 that skirting boards31 remained in the same condition between the builder’s exit in August 2021 and 3 March 2022 when the second lease ended – implicitly, if not expressly, unclean. [67] Exhibit RAA-17 to Mr Astill’s affidavit is a bundle of documents comprising the following correspondence. 1. Email 2/3/22 Rowan Astill to Ms Patterson informing the agent that Energex would be conducting a final read of the meter situate within Lot 1 (the property) between 3 and 4 March 2022 and saying that she must ensure that the gate remains open for both days because, if not, a fee would be applied to his account which he would add to his damages claim. 2. Ms Patterson’s reply of the same date saying the electricity read was the tenant’s responsibility and leaving the gate open would be a security issue for the neighbours. 3. Mr Astill’s email in reply 3/3/22 saying he had done all he could to enable access, that keys were not required for access by Energex, only the driveway gate controlled by Duplex 2, and that Energex don’t ring to say they are outside – as she well knew. 30 Submission dated 16 August 2022, paragraph [14]. 31 See for example the full page photographs filed by the agent on 5 August 2022, pages 11, 20, 81, 84. -- 14 of 27 -- 15 4. Ms Patterson’s reply of the same date that this was Mr Astill’s responsibility and “You arranged the read you have to allow access.” 5. Mr Astill’s reply 4 minutes later saying – I do not control the gate as that is COMMON PROPERTY. You are the property manager. 6. An email from Origin Energy later on 3 March 2022 to Mr Astill saying the meter reader had tried to make a final read but was unable to access because the gate/door would not open so he would need either to book another meter read or send a photograph of the meter. [68] In reference to those documents, Mr Astill said in his affidavit32 that the agent’s correspondence was in keeping with the continued belligerence of the property manager Ms Patterson and that he was informed by Origin Energy that Energex would debit a “non-access” fee of $110.00 to his next electricity account when it issued. The exchange of correspondence speaks for itself. It evidences the inflexibility on both sides but is irrelevant because nothing is claimed for electricity. [69] I turn now to Mrs Astill’s evidence. [70] In her affidavit sworn 9 June 2022, Danielle Astill describes the disruption to her family and children of repeated trade visits for repairs and ultimately having to move out of the property for an extended period. I accept that evidence. She says her husband informed her in December 2021 that they had been given a notice to leave which would not be withdrawn until such time as a new lease was entered into and, being informed that no new lease was forthcoming, she and her husband agreed they would search for alternative accommodation. I accept that Mrs Astill was so informed by her husband. [71] Mrs Astill refers to the rental market being very tight then, and to searches for other properties. She says that ultimately, in late January 2022, an agent informed her of the Gibraltar Drive property becoming available. I accept that evidence. She says that, though it was much bigger than the Merrimac Boulevard property, it is inferior because it does not have a butler’s kitchen, two Miele dishwashers, Miele appliances, polished concrete floors, a heated outdoor spa, and a skyline viewing deck. I do not accept Mrs Astill’s evidence that the Gibraltar Drive property was inferior to the Merrimac Boulevard property. I prefer the evidence of Ms Patterson in that regard. [72] In her affidavit sworn on 23 June 2022 Ms Patterson says that the agent did not receive any rental reference requests for the Mr and Mrs Astill between December 2021 and January 2022 and received only one reference request from Ray White on 11 February 2022 for the Gibraltar Drive property. I accept that evidence. Ms Patterson says, and I accept, that the Gibraltar Drive property was (is) superior in the following respects. • It is an 845sqm waterfront block in the heart of Isle of Capri. • It is a 56 square home with separate study, media room. • It has open plan space, with choice of formal and informal living spaces. 32 Affidavit of Rowan Astill sworn 21 April 2022, paragraph 18. -- 15 of 27 -- 16 • It has a15m swimming pool, spa, covered alfresco entertaining area. • It is modern, with immaculate interiors and a grand 7 metre high entry foyer. • It has a Caesarstone island kitchen, with quality European appliances, bespoke cabinetry. • It has a master suite with his/hers walk-in robes, a luxurious ensuite, and dual showers. • All bedrooms have ensuite access, with powder rooms on both levels. • It has designer bathrooms, ducted air-conditioning, separate laundry, porcelain tiles. • It has a security alarm, vacuum aid, high ceilings, abundant storage, and remote- control gates. • It has a secure double garage, with off street parking for 4 cars and private pontoon. [73] Ms Patterson declines for privacy reasons to say what rent current tenants of the Merrimac Boulevard property pay but she swears that the agent has never achieved $2,000.00 rent per week since 2019 for it. I have no reason to disbelieve her in that regard. Ms Patterson refers to information for similar properties to the Merrimac Boulevard property available for rent online for between $1,300.00 and $1,900.00 per week between December 2021 and March 2022, which I accept. [74] On the totality of the parties’ evidence, I find that the Gibraltar Drive property was (and is) superior in quality and location to the Merrimac Boulevard property. Though the prerogative of Mr Astill to rent more upmarket elsewhere as he did, I find that he could in March 2022 have rented comparable property to the Merrimac Boulevard property elsewhere on the Gold Coast in the range $1,300.00 to $1,900.00 per week, probably at about $1,700.00 per week – or $300.00 per week more than the $1,400.00 per week payable under the second lease. [75] If the Respondents are liable to the Applicants, I find that “increase rent” compensation is $4,757.14 calculated as $300.00 per week for the period 4 March 2022 to 18 July 2022 being 300/7 = $42.8571429 per day x 111 days. If the Respondents are liable to the Applicants in respect of removal costs, I find that compensation is to be assessed as interest on removalist expenditure brought forward by 111 days, not the expenditure itself, because the expense will have likely been incurred at the end of the second lease in any event. Compensatory damages are restorative of the status ante in character,33 not punitive. [76] On the vacate cleaning issue, Mrs Astill says in her affidavit that she engaged tradespeople and others to clean the yard and external garage and remove all “extraneous chattels” from the Merrimac Boulevard property and that she engaged her usual cleaner Ms Hutchens and daughter who spent the whole day ensuring the premises were cleaned to the same condition as at the start of the tenancy except for fair wear and tear. I accept that Mrs Astill engaged cleaners, but her evidence of what 33 Champion & Anor v Laterma Pty Ltd & Ors [2018] QCAT 392, at [92]. -- 16 of 27 -- 17 work they did is hearsay and is unsupported by witness statements or, at least, invoices with a narrative of work done. She admits neglecting to clean the two barbeques. [77] I do not accept Mrs Astill’s statement that references in the lessor’s Exit Condition Report to lost and damaged items relate to loss and damage that occurred whilst the builder was in possession of the premises during demolition and reconstruction. In paragraph 9 of her affidavit, Mrs Astill says that she was very unhappy with the state of the premises when they took up occupation under the new lease “on 19 July 2021”. However, she did not depose to any correspondence from her or her husband confirming dissatisfaction with the state of the premises on reoccupation. I have no doubt that Mr Astill would have taken that matter up promptly and in writing with the agent if it were the case. [78] Neither Mr Astill nor Mrs Astill swear that the tenants completed an Exit Condition Report at the end of the tenancy at Merrimac Boulevard, Broadbeach Waters, on 3 March 2022. Though required by the RTRAA, I find that they never did so. On the other hand, Ms Patterson of First National Centrepoint did conduct a vacate inspection of the property and complete an Exit Condition Report signed by Ms Patterson and dated 4 March 2022. [79] The agent’s Exit Condition Report and accompanying photographs prove that the Astill family left the property unclean and with damaged walls, a cracked basin, missing plugs, heavily soiled barbeques, stained balcony pavers, decking covered in dog hair and faeces, and the master bedroom carpet and curtains soiled with dog faeces. I find that this was not the condition of the property at the start of the first lease and not the result of fair wear and tear through usage. It was not caused by the builder or tradespeople who entered the dwelling to effect repairs. I accept the Respondent agent’s photographs, including enlargements filed by the agent, accompanying the Exit Condition Report, as evidence of what those documents show in conjunction with the narrative in the Exit Condition Report signed by Ms Patterson. [80] I also accept and find that First National Centrepoint on behalf of the owner incurred the following expenses in putting the Merrimac Boulevard dwelling back in the condition that it was at the start of the first lease except for fair wear and tear. 1. Fabulous Cleaning Solutions Tax Invoice dated 10 March 2022 for cleaning - $675.00. 2. Excellence Carpet Cleaning and Pest Control Tax Invoice dated 17 March 2022 for carpet scrubbing and anti-bacterial treatment to remove animal faeces - $198.00. 3. Painters in Paradise Quotation dated 7 March 2022 and Tax Invoice dated 10 March 2022 for repairs and painting as per attached schedule - $2,165.00, except for refixing the spa pool gate to which I will come shortly. 4. Neweys Carpet & Curtain Cleaners Tax Invoice dated 11 March 2022 for removal, repair and rehanging curtains - $671.00. [81] I accept the evidence of Wayne Healey of Painters in Paradise in a “To whom it may concern” letter dated 5 May 2022 regarding the condition in which he found the property after the Astill family vacated, the content of which it is unnecessary to recite here. -- 17 of 27 -- 18 [82] The remaining claim by the agent is for vacate water charges of $273.93 which the Applicants have not contested. In support of it, First National Centrepoint has attached (Attachment 6(h)) to the Counter-application a page of the City of Gold Coast Water and Sewerage Account Notice number 8 for the period 24/11/21 to 25/2/22. It is not annotated. No explanation is given as to how the figure claimed is calculated. The Tribunal cannot make the case of a party or assist in proving it. First National Centrepoint bears the onus of proof of the water claim but, absent evidence of how the claim is calculated, has not discharged it. Discussion Jurisdiction – Can a company be a residential tenant? [83] The issue is whether an artificial person, rather than a human being, can “reside” in residential premises as a residential tenant, enjoying the attributes of residential quiet and peaceful occupation and amenity conferred by the RTRAA, a moot point that does not appear to have been decided in this State. The issue goes directly to jurisdiction which is a threshold consideration in minor civil disputes because the Tribunal is a creature of statute, in this case - the QCAT Act, read with the RTRAA as an enabling Act.34 [84] In Russo v Propertyman [2016] QCATA 200 (Russo), the tenant was self-evidently not a company. The premises were residential. She signed a general tenancy agreement with Propertyman, but for the purpose of renting out rooms in the property, not living in it. An Adjudicator at first instance exercised jurisdiction to decide a dispute between the parties. On appeal, the Tribunal found that Ms Russo was not a residential tenant in the sense referred to in the RTRAA and reversed the Adjudicator’s decision to exercise jurisdiction and decide the dispute, finding that this was an error of law. It dismissed Ms Russo’s original residential tenancy application because the Tribunal had no jurisdiction to deal with it. [85] Russo is distinguishable on the facts but the principle concerning Tribunal jurisdiction is relevant in the present case because section 27(1) of the RTRAA provides that the Property Law Act 1974 (the PLA) does not apply to residential tenancy agreements. On the other hand, section 27(2) provides that nothing in subsection (1) affects the application of that Act to an agreement about a tenancy if the agreement is not a residential tenancy agreement. If a company is incapable at law of being a residential tenant, then the Tribunal has no jurisdiction in the event that only Astill Legal Group Pty Ltd was the tenant. The provisions of the PLA apply in that event – including those relating to notices and termination of an agreement about a tenancy. The dispute may only be litigated in a court of law with jurisdiction, and the Tribunal is not such a Court. [86] An accepted definition35 of the verb “reside” is “to live, have your home, or stay in a place.” In my opinion, a company is incapable of residence in the literal sense of the word, whether as a lessor or tenant. The notion offends logic. It is true that a lessor of residential property may be (and is often) a corporation, but that is unremarkable because companies routinely own real estate and ownership is not residence. By no stretch of the imagination can it credibly be said that a company is capable of residence in the human sense. Nevertheless, one must look closely at the legislation 34 RTRAA, amongst others s 414, s 414A, s 416, s 417, s 418, s419, s 420, s 421, s 424, s 426, s 429. 35 https://dictionary.cambridge.org/dictionary/english/reside. -- 18 of 27 -- 19 and apply accepted cannons or rules of construction in construing the legislature’s intention in words used.36 Legislative intention is usually ascertainable from a grammatical reading, though not always so.37 Statutory text must be given its ordinary meaning where the language is plain and unambiguous. Interpretation of a provision that best achieves the legislative purpose is to be preferred38 but the intention of the legislature will be derived from considering the text of the relevant provision in its context.39 [87] Section 5 of the RTRAA states the legislative purpose of the Act. The main objects are, amongst others, to state the rights and obligations of tenants, lessors and agents.40 Section 8(1) of the RTRAA provides that a Lessor is the person (my emphasis) that gives the right to occupy residential premises under a residential tenancy agreement. Section 11 says that a residential tenancy is the right to occupy residential premises and Section 10 provides that residential premises are premises used, or intended to be used, as a place of residence or “mainly as a place of residence.” Section 13(1) says “a tenant” means the person (my emphasis) to whom the right to occupy residential premises under a residential tenancy agreement is given. Section 20 provides that, in this Act, unless a contrary intention appears, a reference to a lessor or tenant is a reference to a lessor or tenant under a residential tenancy agreement to which this Act applies. The definitions of lessor and tenant in Schedule 2 of the RTRAA carry those meanings. [88] Section 32D(1) of the Acts Interpretation Act 1954 (Qld) (the AIAQ) provides that a reference in an Act to a person generally includes a reference to a corporation as well as an individual. Section 32A provides that definitions in or applicable to an Act apply except so far as the context or subject matter otherwise indicates or requires. This invites a flexible interpretive approach.41 Section 32AA says that a definition in or applying to an Act applies to the entire Act. Section 35A provides that a reference to a person as proprietor, transferor, transferee, mortgagor, mortgagee, lessor, lessee, trustee or as having an interest in land includes a reference to the person’s personal representatives, successors and assigns (again - my emphasis). The meaning of “personal representative” is not defined or explained in the AIAQ so the question in turn is whether a director, as officer of a company, is its personal representative in the sense referred to in section 35A? If so, is the director of a tenant company a tenant together with the company, even though not personally named, and a residential tenant by that provision. If so, the conundrum is whether, though not personally named as a tenant, the director must personally be co-signatory, together with the company by the director, on all statutory notices and documents issued by the tenant, for example – a Form 11, a Form 13, Entry and Exit Condition Reports, and so on, including the lease, given that there are strict requirements in the RTRAA for signing Forms. [89] Further complications arise where an individual is deemed to be a director under the Corporations Act 2001 (Cth) but is not so registered with ASIC or named in the public 36 Mills v Meeking (1990) 169 CLR 214, 233-4 considered in PJD Group Pty Ltd t/as Esk Caravan Park v Both & Ors [2017] QCATA 94, [41]. 37 Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355, [78]. 38 Acts Interpretation Act 1954 (Qld), s 14A. 39 X v Australian Prudential Regulation Authority (2007) 226 CLR 630, [116]; see also Bank of Queensland Limited v Y & L Promising Pty Ltd [2022] QCA 217, [38], [40]. 40 RTRAA, s 5(1)(a). 41 Special Projects (Qld) Pty Ltd v Simmons 2012 QCA 205, [26]. -- 19 of 27 -- 20 record. Though not in a residential tenancy context, see for example ASIC v King [2020] HCA 4. [90] Ultimately, however, I need not decide the question of law. Despite my earlier circumspection, I proceed on the basis that both Mr Astill and Astill Legal Group were tenants of First National Centrepoint and owners Sharma and Eswaran42 because that is what the parties said they intended and because the following sections of the legislation permit the finding. Though section 61(1) of the RTRAA provides that a lessor or lessor’s agent must ensure a residential tenancy agreement is in writing, section 61(6)(b) provides that nothing in the section affects the enforceability of an agreement that is not in writing. Section 12(3) says that section 12(1), which provides that a residential tenancy agreement is one under which someone gives someone else a right to occupy residential premises as a residence, applies whether the agreement is in writing, wholly oral or wholly implied, or a combination of both (my emphasis). That is the situation here, in respect of Mr Astill personally. [91] Therefore, the Tribunal has the required jurisdiction to adjudicate the dispute in this case. Must a Lessor complete an Entry Condition Report at the commencement of a second consecutive residential tenancy agreement? [92] The following provisions of the RTRAA establish that a Lessor is not required to complete an Entry Condition Report at the commencement of a second consecutive residential tenancy agreement. [93] Section 65(1) of the RTRAA says that if the terms of a tenancy agreement are required to be in writing43 then (in terms of section 65(2)) the lessor or agent must, on or before the tenant occupies (my emphasis) the premises under the agreement, prepare in the approved form an entry condition report for the premises and any inclusions;44 and sign it;45 and give a copy to the tenant.46 Section 65(3) requires that, within 7 days of that, the tenant must sign the copy;47 mark the copy in an appropriate way showing the parts not agreed with;48 and return the copy to the lessor or agent.49 I do not recite subsections (4) to (6) of section 65 here because they are not material to this dispute. However, subsections (7) and (8) are material. Section 65(7) provides that, if the lessor or agent complies with subsections (2) to (5) for a residential tenancy agreement (the original agreement), subsections (2) to (5) do not (my emphasis) apply in relation to a later residential tenancy agreement (a renewal agreement) that continues the tenant’s right to occupy the same premises.50 Section 65(8) provides that, unless a new condition report is prepared for a renewal agreement, the condition report for the original agreement is taken to be the condition report for the renewal agreement at the start of the tenancy. Non-compliance with section 65(2), (3), (5) and (6) of the RTRAA attracts a civil penalty (a maximum of 20 penalty units each). 42 See Transcript 27 May 2022, T1-1 at lines 27 to 47; T1-8 lines 1 to 46; and T1-9 at lines 1 to 22. 43 RTRAA, s 65(1). 44 RTRAA, s 65(2)(a). 45 RTRAA s 65(2)(b). 46 RTRAA, s 65(2)(c). 47 RTRAA s 65(3)(a). 48 RTRAA s 65(3)(b). 49 RTRAA s 65(3)(c). 50 My added emphasis. -- 20 of 27 -- 21 [94] Section 66 of the RTRAA requires that a tenant complete an exit condition report at the end of a tenancy. In terms of section 66(1), the section applies if a tenant’s right to occupy premises ends when the residential tenancy agreement ends;51 and does not apply if the tenant’s right to occupy the premises continues under another residential tenancy agreement.52 Section 66(2) says that the tenant must (my emphasis) on or before the day the residential tenancy agreement ends – prepare, in the approved form, a condition report for the premises and any inclusions;53 and sign the condition report;54 and as soon as practicable after the agreement ends give a copy to the lessor and agent.55 I do not recite the provisions of subsections (3) and (4) of section 66 because they are not relevant on the facts in the present case, Mr Astill and his incorporated legal practice having failed to comply with the imperative requirements of section 66(2) of the RTRAA at the end of the second lease on 3 March 2022. [95] Section 52 of the RTRAA, sometimes overlooked, provides that if under this Act a duty is imposed on, or an entitlement is given to, a lessor or tenant, the duty or entitlement is taken to be included as a term of the residential tenancy agreement (my emphasis). In other words, the duty or entitlement is simultaneously statutory and contractual. Section 52(5) provides that the section applies even if (my emphasis) the duty, entitlement or rule is not included as a term of a written agreement. The standard Form 18(a) General Tenancy agreement prescribed in Schedule 1 of the Residential Tenancies and Rooming Accommodation Regulation 2008 makes no reference anywhere to section 52 of the RTRAA or to the effect of subsections (7) and (8) of section 65 recited above. None of the parties referred to the provisions in section 52 and section 65(7) and (8) of the RTRAA in their submissions. [96] Section 506(1) of the RTRAA provides that in a proceeding before a tribunal a copy of a condition report stating the condition of stated premises and its inclusions, is evidence of their condition, if the report is signed by the tenant – when the report was signed;56 or if not signed by the tenant – when the report was made.57 Section 506(2) provides, however, if the report is signed by the tenant and marked to show the tenant’s disagreement with the statement, the report is evidence of the condition of the premises and inclusions when the report was signed by the tenant only as far as its contents are unmarked. [97] In Gold Coast Property Expo v Rhodes [2022] QCATA 120 (Rhodes) a learned Member of the Appeal Tribunal observed that, unlike the process for an entry condition report, no penalty is prescribed where a tenant fails to complete an exit condition report. That is undoubtedly correct but the Member then said at [20] that this “probably reflects that an entry condition report has a much greater probative value than an exit condition report.” I respectfully disagree. The absence of a penalty does not diminish the probative value of a tenant’s exit condition report. It merely lets the tenant off without civil penalty for non-compliance. Failure to comply with the requirement imperils the tenant whereas compliance protects the tenant. Not completing an exit condition report also puts the tenant in breach of the lease and 51 RTRAA, s 66(1)(a). 52 RTRAA s 66(1)(b). 53 RTRAA s 66(2)(a). 54 RTRAA s 66(2)(b). 55 RTRAA s 66(2)(c). 56 RTRAA s 506(1)(a). 57 RTRAA s 506(1)(b). -- 21 of 27 -- 22 section 66(2) of the RTRAA. The tenant’s failure renders conclusive the content of an unchallenged entry condition report, applying section 506(2). [98] That evidentiary difficulty confronts Mr Astill and Astill Legal Group. There is no tenant exit condition report to contradict the unchallenged entry condition report which both agent and, belatedly, the tenant signed for the first lease. It applies to the second lease if the leases were consecutive. Were the first and second leases consecutive? [99] I find that the first and second leases were consecutive, the second a renewal of the first. Upon expiration of the fixed term on 18 April 2021, the first lease became periodic by operation of clause 6 of the standard terms and section 70 of the RTRAA, the terms of which are recited in my findings of fact, that is – it became a month-to- month tenancy. It did so automatically, because the parties did not agree to end it, nor were any of the other prerequisites in section 70(1)(b) to end the tenancy satisfied. Though the Astill family physically vacated the property for some three months, they did so on the basis that the tenancy continued but rent reduced to nil until they re- entered the property. Mr Astill agreed that the electricity account for the Merrimac Property remained in his name but that the owners pay it, as occurred. The Astill family stored their furniture and chattels in the property during the period and retained the keys to the property for access, which they had from time to time. The bond remained with the Residential Tenancies Authority. Mr Astill did not complete any exit condition report. [100] I find that those facts evidenced a continuing periodic tenancy until the new tenancy term of the second lease commenced on 18 July 2022. The second lease was a renewal agreement in the sense referred to in section 65 of the RTRAA. It continued the tenant’s right to occupy the same premises. Was a second entry condition report required at the commencement of the second lease? [101] No further entry condition report was required from the agent at the commencement of the term of the second lease. The entry condition report for the property at the start of the first lease continued by operation of section 65 of the RTRAA to apply to the second lease. Must a lessor complete a re-entry condition report where a tenant partially and temporarily vacates part way through a tenancy because premises become uninhabitable but returns after completion of repairs? [102] There is no provision in the RTRAA requiring a re-entry report in such circumstances. Any dispute about the cleanliness or otherwise of a property upon re-entry after repair is to be adjudicated and determined on the facts and evidence in each case. Is a residential tenancy terminable at the option of a tenant upon acceptance of a lessor’s repudiation of a residential tenancy agreement? [103] A residential tenancy is not terminable at the option of a tenant by acceptance of a lessor’s repudiation of a residential tenancy agreement. The following are my reasons for that conclusion. -- 22 of 27 -- 23 [104] First, the RTRAA is not a code.58 Section 4(1) of the RTRAA provides that a right or remedy given to a person under this Act is in addition to, not in substitution for, a right or remedy the party would have apart from the Act and section 4(2) says that, without limiting subsection (1), this Act does not operate to reduce the effect of a right or remedy a person would have apart from this Act. Section 4(3) provides that, in subsections (1) and (2), a reference to a right or remedy is a reference to a right or remedy that is not inconsistent (my emphasis) with this Act. [105] Second, however, the provisions of section 277 of the RTRAA are inconsistent with the common law doctrine of repudiation and acceptance of repudiation as a way of ending a contract. A tenancy agreement is a statutory contract, though a contract no less. The section unequivocally provides that a residential tenancy agreement ends only (my emphasis) in 1 of the following ways – 1. the lessor and tenant agree, in a separate written document, to end the residential tenancy agreement. 2. the lessor gives the tenant a notice to leave under section 326 and the tenant hands over vacant possession of the premises on or before the handover day for the notice. 3. The tenant gives the lessor a notice of intention to leave under section 327 and hands over vacant possession of the premises on or before the handover day for the notice. 4. (not relevant) 5. (not relevant) 6. (not relevant) 7. The tribunal makes an order terminating the agreement – Note, see division 6 for the making of termination orders by the tribunal. [106] Third, orders that the Tribunal may make for termination of a residential tenancy agreement are set out in, and circumscribed by, Division 6, section 337 – for failure to leave for unremedied breach, section 338 – for failure to leave for noncompliance with tribunal order, section 339 – for failure to leave for noncompliance (moveable dwelling relocation), section 340 – for failure to leave for other grounds (not including acceptance of repudiation), (there is no section 341), section 342 – for failure to leave as intended, section 343 – for excessive hardship, section 344 – for damage or injury, section 345 – for objectionable behaviour other than in public or community housing, section 345A – for objectionable behaviour in public or community housing, section 346 – for incompatibility, section 347 – for repeated breaches, section 347A – for serious breach on grounds established under section 297B(1), and section 347B – for misrepresentation. Implicitly, the Tribunal, may only make the orders provided for in those sections as may apply. [107] Fourth, as Justice Wilson SC (as he then was) said in Big4 Brisbane Northside Caravan Village v Schliebs [2012] 277 at [42], “(t)he RTRA Act is intended to be prescriptive and all-embracing in governing the procedure for determination of disputes arising under residential tenancies” and as then Senior Member Stilgoe said 58 Amos v Fett & Anor [2016] QCATA 120, [26] to [42]. -- 23 of 27 -- 24 in Saarman (supra) at [9], “(b)ecause the RTRA Act is intended to be prescriptive, it can, and does, alter ordinary contractual rights.” I respectfully agree with those statements of principle. They apply in the present case. The QCAT Act does not confer statutory power on the Tribunal to make termination orders on any basis, or for any reason, other than as are set out in sections 277 when read with sections 337 to 347B of the Act. [108] It follows that the common law right to terminate a contract for repudiation by acceptance is not available to end a residential tenancy agreement in Queensland. The common law doctrine of repudiation is inconsistent with the provisions of the RTRAA for termination of a residential tenancy. Section 4(3), to which I referred earlier, applies to exclude it. Therefore, Mr Astill’s purported termination of the second lease for repudiation was ineffective. [109] Alternatively, if I were wrong in that conclusion, the purported termination of the second lease on ground of rescission was also ineffective for the further reasons to which I now turn. Did Astill Legal Group and Mr Astill elect to accept repudiation of the second lease or did they affirm the tenancy? [110] Mr Astill knew that the Form 12 was invalid and said so unequivocally in his correspondence with the agent on 23 November 2021. In that knowledge, he elected to affirm the second lease, in words and by conduct, until his email dated 2 March 2022 to Ms Patterson almost four months later, meanwhile staying in the property and continuing paying rent. An estoppel therefore lies against Astill Legal Group and Mr Astill. They were bound by Mr Astill’s election. They could not both approbate and reprobate59 the second lease. An election to continue with performance was (and is) inconsistent with termination of a contract. The right to terminate is, and was, thereby lost.60 That is, and was, so even in the absence of a retraction61 of the repudiation. Are the Respondents liable for $501.96 for the cost of key replacement? [111] The owners and agent were in breach of the second lease in permitting tradespersons unknown to Mr Astill to have keys to the premises, thereby enabling unauthorised entry without notice and disruption of the Astill family’s quiet and peaceful enjoyment of the property and putting the security of the Astill family in jeopardy. Mr Astill’s decision to change the locks was reasonable and justified in the circumstances and the tenants would be entitled to compensation by way of reimbursement of the outlay, but for their delay in acting on the breach. The following sections of the RTRAA apply. [112] Subsections (1)(a), (2), and (3), of section 419 provide that, where there has been a breach of a term of a residential tenancy agreement, an application by a lessor or tenant to the Tribunal for an order about the breach must be made within 6 months after the lessor or tenant becomes aware of the breach. Awareness of breach is the statutory trigger. Section 417(2) provides that “application” includes a reference to the making of a dispute resolution request to the Residential Tenancies Authority about the issue. A dispute resolution request is made by filling out, signing, and lodging, a Form 16 59 Commonwealth v Verwayen (1990) 170 CLR 394 at 421; Mandurah Enterprises Pty Ltd v Western Australian Planning Commission (2008) 38 WAR 276 at 297, [109]. 60 JW Carter, 7 th edition, Contract Law in Australia [31-05] at 720; United Australia Ltd v Barclays Bank Ltd [1941] AC 1 at 30; See also Wendt v Bruce (1931) 45 CLR 245 at 247. 61 Ibid, [30]-[46] at 703, and see Bowes v Chaleyer (1923) 32 CLR 159. -- 24 of 27 -- 25 request with the Authority. This is required in all non-urgent matters, into which category the present claims fall. [113] Section 416(1) provides that a lessor or tenant may not apply to a tribunal about an issue until a dispute resolution request has been made and the conciliation process has ended without a conciliated resolution because the Authority refuses the service or a party refuses to participate or continue participating or the parties participate in the process but do not reach an agreement on resolving the dispute62 or an applicant reasonably believes the other party has breached a conciliation agreement reached.63 In any of those instances, the Residential Tenancies Authority issues the parties with a Notice of Unresolved Dispute in letter form, known by its acronym – NURD. A NURD is an essential precondition to the Tribunal having jurisdiction to adjudicate the dispute, absent which an application is premature and must be dismissed for lack of jurisdiction. [114] The Applicants’ claim for the costs of key replacement is out of time. [115] Even if I were to regard it as a component of the bond dispute for which Mr Astill lodged the Form 16 Dispute resolution request with the Residential Tenancies Authority on 10 March 2022, the lock replacement expenditure was incurred on 2 August 2021 which is when the cause of action for compensation for lease breach causing loss and damage became complete. Six months backdated from 10 March 2022 when the Form 16 was lodged is 11 September 2021, however Mr Astill was aware of the loss caused by the breach on 2 August 2021 and aware of the breach itself prior to that. [116] The claim is therefore statute barred by the operation of section 419(3) to which I referred earlier. I am supported in that conclusion by the outcome in Saarman (supra) in which Senior Member Stilgoe at [9] said – Mr Evans (the Applicant) was aware of those breaches long before he filed his application for compensation. Because he did not bring a claim within 6 months of being aware of the breach, he cannot now make a claim. Are the Respondents liable for removal expenses? [117] The Respondents are not liable for the removal costs because they were not incurred by reason of a breach of the second lease by the agent or owners. Rather, they were incurred because the parties agreed to end the tenancy prematurely, albeit for differing reasons. Had the Respondents been liable, compensation would be limited to interest on the expenditure brought forward by approximately four months to put the tenants back in the position they would have been if the second lease run its full term. Are the Applicants entitled to refund of their bond? [118] The Applicants are entitled to some of the bond back for the reasons which follow. Are the Applicants liable to the Respondents on the counterclaim? [119] Given my findings of fact, I find the Applicants are liable to the Respondents on the counterclaim for the following amounts: $742.50 for cleaning; $198.00 for carpet cleaning and pet faeces removal; and $671.00 for curtain repairs and cleaning. As to 62 RTRAA, s 416(1)(b)(i), (ii) and (iii). 63 Ibid, s 416(2). -- 25 of 27 -- 26 the claim for $2,165.00 for internal repairs, painting, and external cleaning, I will not order payment of the full amount. Comparing Mrs Astill’s photographs taken on 15 August 2021 of the detached pool gate and column which are attached to the Applicants’ submissions dated 16 August 2022, with the agent’s exit condition photographs of the same area, I find it is more likely than not that the gate was detached on 15 August 2021 by one of the owners and never refixed. Therefore, the Applicants cannot be liable for that component of the cost of repairs. Refixing the gate will not have involved much time and expense. I will deduct $200.00. [120] In summary – 1. I will allow the repairs claim at the end of tenancy, less $200.00, plus the claims for pet faeces removal, curtain repairs, and cleaning. 2. The Respondents’ Counter-claim succeeds in the amount of $3,576.50 which will come out of the bond with the balance bond to go to the Applicants. 3. The Application of Mr Astill and Astill Legal Group will be dismissed. 4. The parties will bear their own costs in the filing fees paid. Opportunity missed [121] Parties to civil litigation are bound by the way they state their claims and conduct their cases.64 [122] The result in the present case will have been different if Mr Astill had claimed compensation for lease breach that occurred during (my emphasis) the second lease, as he did in T772/20 for lease breach during the first lease, rather than claiming compensation for post contractual damages after the end of the second lease. I earlier found that the agent’s conduct caused the Astill family a deal of anxiety. They also suffered disruption to their lives, including Mr Astill’s son studying for his final year school examinations. Mr Astill’s rights to quiet and peaceful enjoyment continued to suffer during the second tenancy because of continuing problems with building defects and because of the way in which the agent and owners behaved. Mr Astill will have succeeded had he claimed compensation on that basis, subject to the six-month limitation period prescribed by section 419(3) of the RTRAA. [123] However, I cannot unwrite history. The Tribunal cannot advise litigants on what claims to make and how to conduct their cases. Wisdom of hindsight will be no consolation to the Applicants. No further claim may be made in this Tribunal. The dispute is now res judicata, that is - the dispute is now finally adjudicated. An Anshun estoppel65 will be a complete defence to any further claims in this Tribunal by either side arising out of the former tenancy. Orders [124] I order as follows. 1. The Applicants’ claims other than for bond are dismissed. 64 Till and Till ATF The Till Family Trust t/as Mt Cotton Truck Hire v Rose [2015] QCATA 173; Till & Anor v Rose [2016] QCA 127; University of Wollongong v Metwally (No. 2) [1985] HCA 28. 65 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 – 147 CLR 589. -- 26 of 27 -- 27 2. On the Counter-application, the Applicants pay the Respondents $3,576.50. 3. The Residential Tenancies Authority pay $3,576.50 from the bond of $5,600.00 to the Respondents in settlement of Order 2. 4. The Residential Tenancies Authority pay the balance of bond in the amount $2,023.50 to the Applicants. 5. The parties each bear their own cost of the filing fee. -- 27 of 27 --