Doyle v Ascot [2015] QCAT 198

CITATION: Doyle v Ascot [2015] QCAT 198 PARTIES: Jonathon Doyle (Applicant) V Ray White Ascot (Resondent) APPLICATION NUMBER: MCDT31-15 MATTER TYPE: Residential tenancy matters HEARING DATE: 22 May 2015 HEARD AT: Pine Rivers DECISION OF: Member Favell DELIVERED ON: 25 May 2015 DELIVERED AT: Brisbane ORDERS MADE: The Respondent pay to the Applicant $400.00 by 4pm 21 June 2015. CATCHWORDS: Minor civil dispute – residential tenancy APPEARANCES and REPRESENTATION (if any): APPLICANT: Jonathon Doyle RESPONDENT: Renee Stinson REASONS FOR DECISION [1] Mr Doyle entered into a General Tenancy Agreement in respect of premises located at 20/95 Beckett Road, McDowell. The tenancy started on 26 June 2014 and under the fixed term agreement, was meant to end on 24 June 2015. [2] When the agreement was entered into, he paid a bond of $1,600 to the Residential Tenancies Authority. That bond was paid out to Ray White Ascot after an order was made in QCAT on 6 March 2015 after Mr Doyle’s application for return of the bond was dismissed for want of prosecution. -- 1 of 4 -- 2 [3] After the order was made Mr Doyle made an application for a re-opening on the basis that he did not attend at the hearing because he had a work commitment. On 10 April 2015 the application for the re-opening was granted. [4] The application, which was before QCAT, was in its minor civil dispute- residential tenancy dispute jurisdiction. He sought an order for the payment of his bond, termination for excessive hardship and termination for incompatibility. The applications were made under sections 137, 310 and 314 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). [5] In the section of the application which sets out Mr Doyle’s reason for seeking the orders, there appears: “the property in question was originally managed by Equinox Realty…they are also my current property management team. The owner is ex-military like myself and understands my mental health issues and works with me to facilitate the management of the property. The owner of Unit 20/95 Beckett Road had some issues with paying for repairs to this property and ended his working arrangement with Equinox Realty and took his business to Ray White Ascot. I had absolutely no say in this matter. The way in which Ray White Ascot conducts their business and property management affects my mental health. I have flashbacks to my time in military at every inspection. I requested correspondence via email and this was being met by the original Ray White Property Manager but she got fired or quit, and I got a new Property Manager who wasn’t sending me emails so I had no idea what was happening, no mention when inspections were due, etc. I cannot live my live in this situation and have any hope of getting my mental health issues under control. I did tell the Ray White Property Manager in October 2014 that I would be seeking to break my lease as early as December 2014 in relation to this matter. I am in a new unit (directly below my old one) and I am happier than I have been in a long time…except for all of this business relating to my bond. I had the unit spotless when I left with no damage or any reason for my bond not to be returned. My new property management team would like the bond for this new unit. I can’t give it to them until this matter is resolved. They have kindly let me move in without payment of the bond upfront. I would like my bond returned asap.” [6] As I mentioned earlier, the bond was paid out to Ray White Ascot who paid $1,200.00 to the owner in respect of three weeks rent. Those three weeks represented the time between when Mr Doyle returned the keys and when a new tenant was found. [7] The other $400.00 of the bond was taken by Ray White Real Estate said to be for a re-advertising fee. [8] The Respondent provided a timeline. It showed Mr Doyle had been residing at 20/95 Beckett Road, McDowell since 27 June 2013. On 18 December 2014 he gave a Form 13 Notice to Vacate advising that he would be vacating on 24 December 2014. He said that he would be -- 2 of 4 -- 3 paying rent up to that date and no more. He also provided a medical certificate date 10 December 2014 from Dr Tomy Varghese which said “the above name suffers from post-traumatic stress disorder and has mood swings. He is currently stressed and has anger issues. His current accommodation and the inspection by the real estate agent is affecting his mental health. I would recommend moving to a new accommodation where he has more privacy.” [9] Ms Stinson in her letter to the Tribunal said that she tried to call Mr Doyle to discuss the situation but he would not pick up her calls. He stated in writing that he is purposely ignoring her calls. [10] Ray White began advertising the property on 22 December 2014. At the time they only had one external photograph of the property and asked Mr Doyle if they could get some more photos but he refused. He refused to allow inspections to be conducted until he vacated the property. [11] Ray White, closed for the Christmas period from 24 December until 5 January 2015, and because of that advised Mr Doyle that he would need to bring the keys back on 24 December even if he put them under the office door. The keys were not handed back until 7 January as Mr Doyle was not able to get cleaners through or the carpets cleaned until 5pm on 5 January 2015. [12] Ray White says that once they received the keys back and vacant possession, on 7 January they were able to hold inspections and secured a new tenant to move in 15 January. [13] I was told during the hearing that Ray White advertised the property for rent over the Christmas break on realestate.com, domain.com and raywhite.com resulting in five enquires. The property was re-rented on 14 January 2015. [14] The tenancy agreement was a General Tenancy Agreement which included clause 36 which is a reflection of s 277 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). That clause provides for the end of the Residential Tenancy Agreement. “The agreement ends only if the tenant and the lessor agree in writing or the lessor gives a notice to leave the premises to the tenant and the tenant hands over vacant possession of the premises on or after the handover day or the tenant gives a notice of intention to leave the premises to the lessor and hands over vacant possession of the premises to the lessor on or after the handover day or…” [15] As I have said, the tenant gave a notice of intention to leave but did not vacate the premises on the handover date. [16] Clause 8 of the tenancy agreement which reflects ss 83 and 85 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) provides for the tenant’s obligation to pay rent. The special terms to the tenancy agreement require the tenant on vacating the premises, to return -- 3 of 4 -- 4 all keys. The special terms allow the agent to enter the premises for the purpose of conducting routine inspections, along with taking photographs of maintenance issues and presentation for the owner. [17] Clause 5 of Addendum B, the special terms to the tenancy agreement provides “should the agreement be terminated by the tenant or by a tenant’s breach of the agreement before the ending date of the agreement, (a) the tenant agrees to pay reasonable costs (re-letting and advertising costs) in accordance with clause 7 of the standard terms of this agreement and continue to fulfil their obligations under the agreement until another general tenancy agreement is entered into by the lessor/lessor’s agency for the premises or until the tenant’s general tenancy agreement expires, whichever is the sooner.” [18] It is clear on the evidence provided that Mr Doyle had an obligation in the circumstances of his case to pay rent until the premises were re-let. [19] Although the tenant agreed to pay reasonable costs, re-letting and advertising costs in accordance with clause 7 the agent for owners has not proved such costs. Although clause 7(2) requires the tenant to pay the reasonable costs incurred by the lessor in re-letting the premises, I have no evidence before me, as to whether any costs were incurred by the lessor or if so, how much and whether they were reasonable. [20] In those circumstances, the agent is not entitled to take the $400.00 it has and that money should be paid back to Mr Doyle. [21] As to the other applications initially made, the circumstances have passed them by. In any event, on the material before me, I could not be satisfied that it would be appropriate to make the other orders sought. [22] The order will be the Respondent pay to the Applicant $400.00 by 4pm 21 June 2015. -- 4 of 4 --