Castellano & Anor v Richardson (for Raton) [2011] QCAT 183

CITATION: Castellano and Anor v Richardson (for Raton) [2011] QCAT 183 PARTIES: Marcos Castellano and Dr Gabriela Luna v Darryl Richardson (for Boca Raton) APPLICATION NUMBER: MCDT60/11 MATTER TYPE: Residential tenancy matters HEARING DATE: 22 March 2011 HEARD AT: Coolangatta DECISION OF: Julie Cowdroy, Member DELIVERED ON: 10 May 2011 DELIVERED AT: Brisbane ORDERS MADE: The Tribunal orders that the bond of $1,400 held by the Residential Tenancies Authority, be released to the applicants. CATCHWORDS: Residential tenancies agreement – disputed between landlord and tenant over use of swimming pool – landlord issued notice to leave – applicants claiming compensation – no compensation ordered – order – bond returned in full to the applicants APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Castellano and Dr Luna RESPONDENT: Mr Richardson with Mr & Mrs Keep, owners REASONS FOR DECISION BACKGROUND TO THE APPLICATION: [1] This is an application for termination of a tenancy agreement due to the applicants’ excessive hardship, however by the time the matter was heard, the tenants had vacated the premises. A residential tenancy agreement in respect of premises at 80B/2 Ridgevista Court, Reedy Creek commenced on 23 January 2011 and expired on 22 January 2012. The applicants claim compensation in the sum of $9,556 plus -- 1 of 5 -- 2 carpet cleaning for being asked to leave the premises unjustly. This amount includes a bond amount of $1,400 held by the Residential Tenancies Authority. [2] Mr Richardson is the manager of a residential complex known as Boca Raton. The complex is operated by the Richardson Family Trust (T/A Boca Raton). He disputed the applicants’ claims and indicated that the tenants were asked to leave after they breached the tenancy agreement. APPLICANTS` CASE: [3] This dispute commenced about the use of a swimming pool. Boca Raton has two complexes, east and west, with a council road separating the two complexes. The applicants resided in Unit 80B, which is on the west side. There are four pools in the complex, none of which have signs indicating that a particular pool is for the exclusive use of particular residents. [4] The applicants’ children used a pool in the east side of the complex. The children were told that that pool was not to be used and that the pool in the west side of the complex was for their use. The applicants had not been told that this was the case when they moved in. Dr Luna contended that there was nothing in the agreement to the effect that a particular pool had to be used. When she discussed this with Mr Richardson he became rude and aggressive. The body corporate manager was also very rude. The applicants moved from the premises because they felt threatened by Mr Richardson and the children had been upset. [5] Dr Luna contended that issuing the notices to remedy a breach were malicious acts on Mr Richardson’s part, taken in retaliation of her complaint about the state of the premises at the commencement of the tenancy. She had spent 6-8 hours cleaning. A notice to remedy breach was issued on 3 February 2011 in relation to the use of the Boca Raton east pool and informing the applicants if the east pool was used again, notice to leave would be given. On 8 February 201 a notice to leave was given on the basis that there had been another breach and giving the applicants until 22 February 2011 to vacate. [6] Dr Luna considered she had been singled out by Mr Richardson. She produced a statement that other residents from the west side used the east side pool without any problems and that some other residents had had difficulty with Mr Richardson’s manner. [7] Dr Luna also queried a bill from an antennae installation firm for $77 to adjust her television’s tuning that she did not authorise. [8] Dr Luna had contacted the owners of the property to discuss her concerns because of her inability to communicate with Mr Richardson. She wanted to advise them of his rudeness which was not only -- 2 of 5 -- 3 experienced by her, but by other families in the complex. She acquired the owner’s details from the Council and rang Mrs Keep. [9] The family moved out of the premises on 23 February 2011, at which time the rent was up to date. [10] The applicants were claiming compensation for removalist fees and house cleaning, rent of $360 (presumably a duplication of rent on the new premises as well as rent at Boca Raton), loss of earnings for herself and her husband for attendances at the tribunal, the cost of photos for the hearing as well as filing fees. The amended amount sought was $7,469.45 plus the bond return of $1,400. RESPONDENT’S CASE: [11] Mr Richardson, as agent for the owners, had advised Dr Luna on several occasions that the pool, which the family used, was not that allotted for their use. He denied that he told Dr Luna that the family could use the pool in the east complex. He had given her verbal warnings and when the children continued to use the pool and the barbeque area was left in an untidy state, he issued the breach notices and then the notice to leave. [12] In respect to the dispute about payment of the antennae technician, Dr Luna “harangued” him as she could not get reception on the television. He said he would attend to it and she kept returning and asking when it would be attended to. He organised for a technician to attend and to fix the problem. The account indicates that the fault was in the tuning of the television. He considered it was a bill that the applicants should pay. [13] In respect to her claim for cleaning, he had advised her that he would get the unit cleaned but this could not occur on Sunday. The last tenant had been charged $520 for cleaning. He disputed the fact that the premises required cleaning when the applicants commenced their tenancy. [14] Mr Richardson forwarded additional information to the Tribunal that was received on 25 March 2011. As the applicants have not had an opportunity to peruse that material and offer comment on it, I have not had regard to its content in making my decision. In any event, the additional material would not have altered my decision. [15] Mrs Keep gave evidence about her concerns that Dr Luna had contacted her directly. She considered it was inappropriate. A letter from her and her husband had been provided to the Tribunal stating that Dr Luna had contacted them and spoke about legal action being taken against them, which had upset them. CONSIDERATION: -- 3 of 5 -- 4 [16] The general tenancy agreement which was signed by the parties does not contain a clause relating to the use of a particular pool in the complex. I was also provided with a notice presumably given to new tenants “Welcome to Boca Raton” and extracts from the by-laws relating to Boca Raton West, which are silent about which pool is to be used by which residents. [17] In any event, it is clear that there is considerable animosity between the applicants and Mr Richardson and also between Dr Luna and the Keeps. While Mr and Mrs Keep expressed their concerns about being contacted, inferring it was an infringement of their privacy for Dr Luna to contact them after obtaining their name and address, as owners of property, this information is a matter of public record. [18] It seems clear that what could have been settled amicably if all parties had been willing to communicate sensibly, has exacerbated to the point where the tenancy was terminated. All parties must bear responsibility for this occurrence. [19] Dr Luna and her family left the premises as a result of the notice to leave. Clearly, she was prepared to leave rather than to accept a direction that the east side pool was off limits. I suspect that, even if the breach notice and notice to leave had not been issued, the family would have chosen to leave because of the antagonism that existed. [20] Whether the applicants, and in particular, Dr Luna, were singled out for discriminatory treatment, I am not in a position to say, however she understandably feels a keen sense of grievance, if her understanding that other tenants use the east side pool without a problem is correct. As I indicated during the hearing, this is not an appropriate forum to deal with any issue of discrimination. [21] Whilst there are legislative provisions in the Act dealing with retaliatory action on the part of the landlord, it is clear that Dr Luna was not willing to compromise and use the west pool only, even if the tenancy agreement was silent on this aspect. [22] The compensation sought by the applicants is unjustified on any view of the evidence. Firstly, there is no corroboration of any of the expenses said to have been incurred. Secondly, in respect to the claim for loss of earnings due to attendance at tribunal hearings, this tribunal does not award costs for income lost during time spent in pursuing a matter. I therefore disallow the applicants’ claims. [23] I make an order that the bond being held in respect of the premises be released to the applicants. I decline to make an order in relation to the payment of the antennae bill. This is partly due to the fact that I have no confidence in its veracity, given that there are two invoices, both dated 28 January 2011, one for $77.00 and the other for $88.00, a nd they are obviously both in respect of the same work. I also decline to make the -- 4 of 5 -- 5 order sought by the respondents regarding the destruction of photographs taken by the applicants as they are innocuous in nature and were taken purely for the purposes of assisting the tribunal. -- 5 of 5 --