Dot1Realty Pty Ltd v D'Arcy & Ors [2015] QCAT 464

CITATION: Dot1Realty Pty Ltd v D’Arcy & Ors [2015] QCAT 464 PARTIES: Dot1Realty Pty Ltd (Applicant) v Jodie D’Arcy, Reece D’Arcy, Stephen Ford (Respondents) APPLICATION NUMBER: MCDT1389-15 MATTER TYPE: Residential tenancy matters HEARING DATE: 12 October 2015 HEARD AT: Southport DECISION OF: Member McDonald DELIVERED ON: 12 October 2015 DELIVERED AT: Southport ORDERS MADE: 1. The application is dismissed. CATCHWORDS: Residential tenancy matters - application for termination for objectionable behaviour - insufficient evidence - Section 345 Residential Tenancies and Rooming Accommodation Act (Qld) 2008 - behaviour not justifying termination APPEARANCES: APPLICANT: Dorothy Meijers RESPONDENT: Jodie D’Arcy, Reece D’Arcy, Stephen Ford REASONS FOR DECISION [1] This is an application for termination for objectionable behaviour. The Applicant seeks a warrant of possession for the removal of the Respondent tenants from the Premises. [2] The respondents have filed a counter application which effectively objects to the application and though unnecessarily has sought a pre-emptive application for the removal from the Tica database in circumstances where -- 1 of 4 -- 2 there has been no actual listing. The latter cannot be dealt with as no listing has in fact been made. [3] Representing the applicant, Ms Meijer’s, stated that the objectionable behaviour which founds the application related to an incident which occurred between Stephen Ford and Ms Meyers on 13 September 2015 at the premises. Ms Meijer’s stated that Mr Ford had been aggressive toward her regarding the demands about the gardening. She stated that he came up to her face and swore, saying, “Don’t you now what a fucking contract is.” She claimed that in this interaction she considered he was “so abusive and so threatening.” [4] On 14 September 2015 Ms Meijer’s issued a breach notice in form 11 detailing the following details of the breach as: “Abusive and threatening behaviour. Steve phoned the property manager on Sunday about an urgent water leak. When Dorothy arrived Steve questioned her about the garden as well as a topic Dorothy advised Steve the gardener will attend Wednesday as previously discussed. Steve got very upset yelled and screamed at Dot and got in her personal space. Dot advised she will not tolerate this behaviour from him and report to the police.” There was no date for the breach to be remedied by. [5] A form 11 notice to remedy breach was issued on 16 September 2015, detailing the breach as: “Abusive aggressive behaviour and interfering with the gardener by the tenant Stephen Ford. (In person and SMS evidence. Gardener refuses to attend due to this abuse and threatening behaviour from the tenant...” There was no date for the breach to be remedied. [6] On 17 September a notice to remedy breach in form 11 was issued in the following terms: “I have just been informed this morning (17/9/15) by head of Security that they escorted Converge Smoke Alarm Company for the compulsory annual smoke alarm compliance test. Steve Ford restricted access to the property and they had to reschedule. This is a serious matter due to some alarm laws. The contractor was scared to go on their own and asked for security to assist.” [7] Ms Meijers relies on these documents as providing the required notice before taking action to terminate the agreement. [8] There were no dates to remedy the breaches in any of these notices. [9] The respondents strongly object to the application and deny the version of events put by the applicant. They claim that 5 notices were issues in the 5 days following the interaction between Ms Meijers and Mr Ford. They also argue that this was issued in the context of the sale of the premises. The agreement between the parties were for a fixed term, terminating on 30 September 2016. [10] It is in evidence that Ms Meijers took over property management on 7 September 2015, and the meeting was the first interaction with the tenants. The property subject to the agreement had been under contract of sale at the time due to settle on 2 October 2015.Ms Meijers stated the purchasers were investors and that the tenancy had not been affected by this. -- 2 of 4 -- 3 [11] Ms Meijer argues that Mr Ford had been aggressive to the gardener who was fearful of returning. She provided text messages the gardener had sent to support these claims. They included an SMS from Mr Ford to the gardener stating, “this is what happens when you fuck people around”. There was no statutory declaration from the gardener, and he provided no witness to claims of intimidation, or harassment or verbal abuse. [12] The Respondents filed a historical copy of SMS texts exchanged between Mr Ford and the gardener which indicated that Mr Ford and the gardener had managed a relationship which had been characterised by the gardener’s repeated non attendance reasonably amicably. One SMS where Mr Ford made reference to being “fucked around” was in the context of these ongoing non-attendances and the dispute with Ms Meijers around eviction arising from the conversation about it. The historical summary suggests there was no pattern of verbal abuse. There is no other evidence which supports the claim that Mr Ford intimidated or abused the gardener. [13] There was no contact from Police who Ms Meijers said advised her to call security services. She purports to rely upon an email of 19 September 2015 from Hope island Resort Security which confirmed they attended the premises in relation to an inspection on 16 September 2015. This provides no evidence to the Tribunal in relation to Mr Ford’s alleged conduct. In this correspondence Security has not identified any specific behaviour as concerning and merely acknowledged attending on the date. Oral evidence from Mrs D’Arcy was that she had discussions with Hope Island Resort Security Manager who informed her they had initially refused Ms Meijers request to attend on that day, but had subsequently been instructed by the body corporate to do so. Ms Darcy also indicated that Mr Ford was not in attendance when Converge Networks smoke alarm was checked, arguing the statement of facts in the form 11 of 17 September 2015 were false. She relied upon correspondence of 23 September 2015 from Paul Jackson of Converge smoke alarms, which indicates the attending worker was on site at the premises from 11:40 am to 12:00 and had no recollection of anyone being present when they attended for the annual inspection. Further they provided Sanctuary Cove Golf Club’s records for 16 September 2015, which indicated Steve Ford was on the 9th tee at 11:32am. There is therefore no evidence to support the allegations upon which the Form 11 issued on 17 September 2015 was issued. [14] Mr Ford denies that he was aggressive in the interaction between Ms Meijers and himself on 13 September 2015. He denies coming into her personal space and denied that he swore. He did indicate he had been frustrated as a result of ongoing problems with the contractual obligations of the Lessor to tend to the gardening. His statements stand in contrast to Ms Meijers version of events and she tells the tribunal that she felt intimidated by Mr Ford’s actions in this incident and his demeanour. Ms Meijer informed the Tribunal that her husband was present at the interaction on the 13 September 2015. However, no sworn evidence is before the Tribunal from him, nor was he called to give witness as to his observations. He provided a letter to the Tribunal which described Mr Ford as aggressive in very non specific terms. There is insufficient independent evidence before -- 3 of 4 -- 4 the Tribunal that there has been threatening or intimidating or verbally abusive behaviour from the Respondents. [15] Section 345 of the Residential Tenancies and Rooming Accommodation Act (Qld) 1998 requires the Tribunal be satisfied that (a) the applicant has established the ground of the application; and (b) the behaviour justifies terminating the agreement. In deciding if the behaviour justifies terminating the agreement, the tribunal may have regard to— (a) whether the behaviour was recurrent and, if it was recurrent, the frequency of the recurrences; and (b) for behaviour in the form of harassment, intimidation or verbal abuse—its seriousness. (3) Subsection (2) does not limit the issues to which the tribunal may have regard. [16] Even if the applicant has established the ground, the Tribunal does not consider that the behaviour justifies terminating the agreement, if it did in fact occur. There is only evidence before the Tribunal of an isolated incident which is relatively minor in nature. There may have been some verbal aggression arising from frustration on an ongoing unresolved issue, but this hardly justifies terminating the agreement in circumstances where there are two other tenants, and offers were made by tenants to have the female tenant as the ongoing contact in relation to issues around tenancy issues. Furthermore the behaviour does not appear to be recurrent. [17] Consequently there is no basis for the application to be granted, and the application must be dismissed. -- 4 of 4 --