Chang and Anor v Moyer [2013] QCAT 70

CITATION: Chang and Anor v Moyer [2013] QCAT 70 PARTIES: Ms Li Ling Chang Mr Hiroshi Kuroda (Applicants) v Ms Marie Louise Moyer (Respondent) APPLICATION NUMBER: MCDT2467-12 MATTER TYPE: Residential tenancy matters HEARING DATE: 3 January 2013 HEARD AT: Brisbane DECISION OF: Trevor Davern, Adjudicator DELIVERED ON: 3 January 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The respondent is to pay the applicants the sum of $1,963.20 within 8 weeks for full compensation. CATCHWORDS: Residential Tenancy dispute – compensation on abandonment termination notice - the 6 month time limit in section 419 does not apply to compensation applications based on an abandonment Queensland Civil and Administrative Tribunal Act 2009, s 122 Residential Tenancies and Rooming Accommodation Act 2008, ss 359, 415(5)(q), 419 APPEARANCES and REPRESENTATION (if any): APPLICANT: Louise Cox, Senior Property Manager Raine & Horne Robertson RESPONDENT: Marie Louise Moyer (assisted by Michelle Gadke – TAAS) -- 1 of 3 -- 2 REASONS FOR DECISION [1] The following written reasons for decision are being provided in response to a request made.1 [2] The Applicants sought a compensation order in the sum of $3,278.05. This sum is made up of the following: $1,963.20 outstanding rent; $221.85 water consumption; $60.00 smoke alarms; $110.00 extra cleaning; $570.00 mowing etc; $235.20 letting fee balance; $19.80 keys cut; and $98.00 filing fee. The outstanding rent was calculated from the total outstanding rent of $5,023.20 for the period 24 February 2012 to 2 May 2012, less the landlord insurance payout of $3,060.00 (for rent loss). [3] In July 2010 Ms Moyer and her daughter Madeline Therese Fletcher entered into a General Tenancy Agreement as tenants. After a time Ms Fletcher vacated and Ms Moyer remained at the property until she eventually left in February 2012. [4] Ms Moyer signed a confirmation of lease renewal on 8 January 2012, for the new fixed term lease to expire on 8 January 2013. As a result of personal health issues she decided to vacate the property on or about 20 February 2012. Rent was paid up to date. Ms Moyer gave evidence that she handed in the keys on or about 20 February 2012 by delivering them to a person at the reception desk of the real estate agency. The agent challenges this and bases her compensation claim on the tenant’s abandonment of the property. [5] An Abandonment Termination Notice was delivered to the premises by the agent on 15 March 2012. Ms Moyer had failed to deliver any appropriate Notice of Intention to Leave. The agent had reasonable grounds for believing that the tenant had abandoned the property. In the circumstances, it can be taken that the tenant abandoned the premises on 23 March 2012. No application has been made to the Tribunal by or on behalf of Ms Moyer for an early termination of the lease based on ‘excessive hardship’. [6] This compensation application has affectively been made under s 359 of the Residential Tenancies and Rooming Accommodation Act 2008 (‘the Act’) for compensation on abandonment termination notice. As such it is categorised as an ‘Urgent’ application under s 415(5)(q) of the Act. As an ‘Urgent’ application, the agent need not have attempted conciliation through the Residential Tenancies Authority (‘RTA’) before lodging the application with the Tribunal. However, the agent did attempt to communicate with Ms Moyer and her daughter and then persevere with conciliation through the RTA to try and resolve the outstanding issues. [7] Section 419 of the Act restricts an application for compensation of any ‘breach’ of a residential tenancy agreement to within 6 months after the lessor becomes aware of the breach. However, this compensation 1 See Queensland Civil and Administrative Tribunal Act 2009, s 122. -- 2 of 3 -- 3 application is not based on a ‘breach’ of the agreement. It is based on an abandonment of the property. Consequently, the 6 month time limit does not apply. [8] During the course of the hearing, claims for water consumption, smoke alarms, extra cleaning and keys cut were disallowed. Before the hearing was concluded, the real estate agent indicated that she would settle on an amount for the outstanding rent debt of $1,963.20. The Tribunal accepts the agent’s evidence that they had taken all reasonable steps to mitigate losses as regards to rent issues, and the premises were re-let on 3 May 2012. Orders [9] The respondent is to pay the applicants the sum of $1,963.20 within 8 weeks (from 3/1/2013). -- 3 of 3 --