Bennett & Anor v Ray White Surfers Paradise [2011] QCAT 175

CITATION: Bennett and Bennet v Ray White Surfers Paradise [2011] QCAT 175 PARTIES: Allan Leslie Bennett and Beverley Dawn Bennett v Ray White Surfers Paradise APPLICATION NUMBER: MCDT82-11 MATTER TYPE: Residential tenancy matters HEARING DATE: 22 March 2011 HEARD AT: Coolangatta DECISION OF: Julie Cowdroy, Member DELIVERED ON: 21 April 2011 DELIVERED AT: Brisbane ORDERS MADE: The applicants pay to the respondent the sum of $732.30. In satisfaction of that order the Residential Tenancies Authority is to release the bond held over the premises by: (a) payment to the applicants in the sum of $707.70; (b) payment of the balance of $732.30 to the respondent. CATCHWORDS: Residential Tenancies legislation – dispute over bond – claim for compensation for unpaid rent, water and replacement of keys – part compensation ordered APPEARANCES and REPRESENTATION (if any): APPLICANTS: Mr and Mrs Bennett and daughter, Ms Nicole Bennett RESPONDENT: Ms T Vowles from Ray White -- 1 of 3 -- 2 REASONS FOR DECISION Background to the Application [1] The applicants rented premises at 5 Trillers Avenue Coomera, from 21 November 2008 until 7 January 2011. It was a periodic tenancy. The applicants have vacated the premises and seeks the return of the bond in the sum of $1,440. APPLICANTS’ CASE [2] Rent had been paid until the day the premises were vacated. When they advised the agent they were moving, they “suddenly” received a phone call from the agent that the rent for the fortnight 8 December 2008 had not been paid. This has never been raised with them throughout the tenancy. They produced a record showing that an amount of $360 was paid by Rent Pay by direct debit on that day. [3] The applicants conceded they owed an amount for water but disputed the amount sought. They had complained to the agent in 2009 and on other occasions that a substantial amount of water passed through the taps before it became hot. They had not been given an account for water throughout their tenancy. They were given a verbal indication that it was likely to be about $400. [4] The applicants also disputed a claim by the agent for the replacement of locks and keys. A statutory declaration was produced from the applicants’ son stating that the keys to the premises had been returned on 8 January 2011 to the office of the agent. RESPONDENT’S CASE [5] Mr Bennett initially returned the keys to the premises, but later came back to the office for the keys so that he could return to the premises and recover a heater he had left there. He returned to the office and sought the return of the bond. When he was told that he could not have the bond until the water charges had been paid, he left in an angry mood and refused to return the keys. [6] Some keys were returned by Mr Bennett’s son however only the security door keys were returned. The front and back door and the key to the letterbox had not been returned and a claim for $169 was made for re- keying of external door locks. [7] In respect to the claim for unpaid rent, Rent Pay had not been able to verify that the payment received from the Bennetts’ account had been paid to Ray White. CONSIDERATION -- 2 of 3 -- 3 [8] Firstly, I note that there is no written agreement in respect to the premises and that it was a periodic tenancy. In respect to the rent contended to be owing, I am satisfied, having regard to the bank statement produced that a sum was debited from the applicants’ bank account and as far as they are concerned, the rent was paid and they have done everything expected of them. I disallow any claim for rent. [9] In respect to the claim for excess water, it is apparent from the invoices from Ray White that they relate to water usage, rather than any excess. Mr Bennett acknowledged that he was liable for some water charges, but challenged the amount sought. The applicants resided in the premises for just over 2 years. It is unfortunate that throughout their tenancy no claim was made for water and the issue was only raised when they were moving from the premises. Over that time water charges had increased considerably and the total amount for water charges is now sought as a lump sum. [10] I am satisfied that the tenants are liable for some amount for water usage. I examined the various accounts from the Council and the calculations from Ray White. I note that the final invoice from Ray White for $244.70 is not accompanied by a council account. I make some allowance for the concerns raised by the applicants about the water supply that were not attended to and have regard to the absence of any council invoice to substantiate the final reading of $244.70. I allow the sum of $100 towards that final account. [11] Consequently, I find the applicants liable for water in the sum of $563.30. [12] In respect to the claim for the locksmith, there was a considerable amount of confusion demonstrated during the applicants’ oral evidence as to the sequence of events with the keys. I accept that the applicants believe that all the keys were returned and I am satisfied that the applicants’ son returned some keys. However, if all the keys were returned, there would be no need to order replacement keys. Given the receipt from the locksmith for keys to the premises, I am satisfied that replacement keys were necessary and I allow that claim. [13] In summary, I find that the applicants owe the respondent the sum of $732.30. That amount is to be paid to the respondent from the bond and the balance released to the applicants. -- 3 of 3 --