Castieau v Gubecka [2013] QCAT 644

CITATION: Castieau v Gubecka [2012] QCAT 644 PARTIES: Mrs Lisa Castieau Stephen Castieau (Applicants) v Sneh Gubecka (Respondent) APPLICATION NUMBER: MCD2503-13 MATTER TYPE: Residential tenancy matters HEARING DATE: 18 November 2013 HEARD AT: Brisbane DECISION OF: Member Favell DELIVERED ON: 21 November 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The Residential Authorities pay from the bond of $1,480 held by it in respect of premises at 36 Fegen Drive, Marooka, Queensland, post code 4105, rental bond number 49711914-9, the sum of $774.05 to the applicants Lisa and Steven Castieau and the remainder of $705.95 be paid to Sneh Gubecka. CATCHWORDS: Where Residential Tenancy – where notice to remedy given to lessee – where notice to leave given to lessee – where premises vacated after notice to leave – whether compensation payable after property vacated Residential Tenancy and Rooming Accommodation Act 2008 ss 277, 281, 326 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mrs Lisa Castieau Stephen Castieau RESPONDENT: Sneh Gubecka -- 1 of 5 -- 2 REASONS FOR DECISION [1] The applicants were the lessors of premises at 36 Fegen Drive, Marooka, Queensland. The respondent was one of the tenants. [2] The applicants seek an order from the Tribunal that there be payment to the lessor of $1,480 which is the rental bond amount provided for by the general tenancy agreement. [3] They also seek an order that the tenant pay compensation to the lessor for loss of rent to date, financial losses until the expiration of the lease and costs associated with the reletting of the property (including cleaning, repairs and letting fees totally $4,481.50.) [4] The applicants served a notice to remedy breach on 13 August 2013 soon after the general tenancy agreement started on 28 June 2013. [5] The notice to remedy breach was because of an alleged failure by the tenant to mark a copy of the entry condition report and an alleged breach of section 21(2) (b), (c) and (d) of the Residential Tenancies and Rooming Accommodation Act 2008 because a search warrant was executed on 9 August 2013 by police investigating an unlawful use of the premises. The notice also alleged that there were multiple damages to the property including, but not limited to, damaged blinds which were installed on 27 June 2013 in the dining area and main bedroom and smashed window to the dining area. That was alleged to be breach of section 26(1) and (2). [6] On 22 August 2013, two days after the date provided for the remedying of the alleged breaches, a notice to leave was served via post requiring the tenants to vacate by midnight on 5 September 2013. In fact the tenants vacated the premises on 23 August 2013. [7] The notice to leave was a notice with grounds expressed as failure to comply with notice to remedy breach issued 13 August 20913 specifically section 5(3)(b) entry condition report, section 21(2)(b), (c) and (d) tenants use of premises and section 26(1) and (2) tenants obligations. [8] Section 281 of the Residential Tenancies and Rooming Accommodation Act 2008 allows the lessor to give a notice to leave the premises to the tenant because the tenant has failed to comply within the allowed remedy period with a notice to remedy breach given to the tenant by the lessor. [9] Section 326 set out the requirements for the notice under section 281. That section requires that the notice state ‘that information about the tenant’s rights and obligations is contained in the agreement’. I see no evidence in the notice to leave of that obligation being complied with. -- 2 of 5 -- 3 [10] Clause 36 of the general tenancy agreement provides: (1) This agreement ends only if – (a) … (b) The lessor gives a notice to leave the premises to the tenant and the tenant hands over vacant possession of the premises to the lessor on or after the handover day… [11] That clause reflects in part section 277 of the Residential Tenancies and Rooming Accommodation Act 2008. [12] Clause 37 of the agreement requires the tenant at the end of the tenancy to leave the premises as far as possible in the same condition that they were in at the start of the tenancy fair wear and tear accepted. [13] Clause 38 requires the tenant at the end of the tenancy to return all keys to the lessor for the premises. [14] The special terms require a full bond clean to be undertaken at the completion of the full lease term. [15] The applicants here, as part of the orders, seek the recovery of rental until the premises are relet and compensation for the difference between the reletting rent and the rent for which the premises were let to the respondent. [16] The applicants acknowledge that the tenant returned the keys to the property on 23 August 2013. [17] They also seek to recover damage to the property. In that regard they point to a broken blind in the main bedroom, a cracked window in the entry (which the tenant accepts), a damaged wall in the main bedroom and a door to the shed broken off its hinges. Photographs have been provided. [18] I was told by Mrs Castieau whose handwriting appears on the request for further information supplied to the Tribunal that rent was paid until 22 August 2013. [19] The applicants supplied a tax invoice from Vale Commercial Interiors Pty Ltd for a total of $349.95 it representing the following: Invoice being for repair work and rubbish removal from the above premises as requested Repair existing door to garage torn off hinges by tenant $103 Repair existing fly screens damaged by tenant and refix in place $120 Cleaning of marked internal walls with sugar soap and general tidy up after maintenance work was completed $68.32 Removal of tenant personal items left at house by tenant. Cost includes tipping fees and hire truck $195 [20] The applicants also claim $220 which is inclusive of GST for changing of the locks. I note the email of 11 October 2013 from the property manager -- 3 of 5 -- 4 of Remax which indicates that the locksmith’s charges to change the locks were in that amount. That being $32 per lock plus $100 labour. [21] That property manager in the email indicated that there was an exhaust frame in the kitchen which was not working, a blind in the second bedroom was damaged and there were items present in the garage and a cupboard in the kitchen which would need to be removed. She also reported on the need for cleaning. She quoted a cost for the cleaning at $240. [22] The Residential Tenancies Authority has advised the Tribunal that the bond held under bond number 4971914-9 in respect of this matter is $1,480. [23] In a compensation schedule supplied to the Tribunal $2,801.43 for loss of rent from 23 August 2013 to 14 October 2013 a period of 7 weeks at the rate of $370 (the rate which is on the initial agreement) is claimed by the applicants. [24] They then claim a loss of $10 per week for 36 weeks, that being the difference between the new tenancy agreement and the one which they had with this tenant. They claim for the period of 15 October 2013 and 27 June 2014 a total of $365.72. They also claim for rent of the commencement of the second year of the lease being increased to $380 per week, hence their claim is for $20 per week between the period 28 June 2014 to 14 October 2014 at $20 per week a total of $314.43. [25] They then claim for a loss of rent between 15 October 2014 to 27 June 2015 and they assume a loss of $20 per week. That is a claim of $728.57. They claim a letting fee for year one of $360 and a letting fee for year two of $360. They claim cleaning fees for $170, $535.95 for repairs and rubbish removal, $228 for the changing of locks and $101.40 for the QCAT application fee. [26] In my view, unless the tenancy agreement provides specifically for an obligation which continues after the general tenancy agreement has ended, there is no basis for making a claim for some of the rental items or the rental fees. [27] The general tenancy agreement does not so provide other than for the obligations of the tenant so far as they are to return the premises in the state they received it, fair wear and tear accepted and to pay for the full bond clean at the conclusion of the lease term, the cleaning of carpets and the cost of flea and pest treatment if pets were approved. [28] In my view the claim should be allowed in the sums of $170 for cleaning, $535.95 for repairs and rubbish removal. That should be deducted from the rental bond and the remainder of the rental bond should be returned to the respondent. [29] In my view there was no need to change the locks. No reason has been established particularly since it is admitted that the keys were returned to -- 4 of 5 -- 5 the landlords. Clause 38 required the tenant to return the keys at the end of the tenancy. That was done. [30] Both sides have had success and I do not intend to allow the application fee. [31] The order therefore will be the Residential Authorities pay from the bond of $1,480 held by it in respect of premises at 36 Fegen Drive, Marooka, Queensland post code 4105 rental bond number 49711914-9 the sum of $774.05 to the applicants Lisa and Steven Castieau and the remainder of $705.95 be paid to Sneh Gubecka. -- 5 of 5 --