Austin & Ramirez v Harcourts Clayfield [2010] QCAT 580

CITATION: Austin & Ramirez v Harcourts Clayfield [2010] QCAT 580 PARTIES: Robert Austin and Viviana Ramirez V Harcourts Clayfield APPLICATION NUMBER: 1847/10 and 549/10 MATTER TYPE: Residential tenancy matters HEARING DATE: 21 September 2010 HEARD AT: Brisbane 5 10 DECISION OF: Mr A Crawford, Member DELIVERED ON: 21 September 2010 DELIVERED AT: Brisbane ORDERS MADE: 1847/10 (1) The application is dismissed. (2) No order as to costs 549/10 (1) The application is dismissed. (2) No order as to costs CATCHWORDS : Dispute over tenancy agreement Residential Tenancies and Rooming Accommodation Act 2009 – Section 419 – breach of agreement; section 213 about lock or key; section 169 loss of amenity. APPEARANCES and REPRESENTATION (if any): For the Applicants Mr C Austin and Ms V Ramirez For the Respondent Ms V Lillwall -- 1 of 4 -- CLAIM NUMBER 1847/10 MR CRAWFORD: Having heard the evidence from the parties, that is, Mr Christopher Austin on behalf of the applicant, and Ms V. Lillwall, on behalf of the respondent, and also having read the memorandum to QCAT by Mr Robert Austin PhD, dated 21 September 2010, the evidence appears to me, on balance, to favour the respondent. The respondent relies upon two air- conditioning companies; that is, Energy Air and the second company, whose name is Applied Air. The representatives from each of those companies have indicated to the respondent that they consider the air-conditioner to be working appropriately. 5 10 15 20 25 30 35 40 45 50 On the other hand, the evidence from Mr Christopher Austin is that their expert looked at the air-conditioner, said it needed some testing, performed some testing and found the results inconclusive. But despite that, and despite the evidence of the other two air-conditioning people, Mr Austin has submitted that the air-conditioner is not working satisfactorily, in any event. On balance I, as I said before, on balance I prefer and accept the evidence of the respondent to the evidence of the applicant in this regard. Secondly, as regards the locksmith’s material, the respondent relies upon a tax invoice, dated 1.09.2010, which sets out details of a service call from Banyo Locksmiths and indicates that four screen sliding door locks were repaired. The gentleman from Banyo Locksmiths notes that he took the liberty of doing the right thing by repaired and reinstalled, instead of changing the locks. Mr Austin has indicated in his handwriting – at least it’s been told to me by his son that it is his handwriting on the tax invoice – that the owner’s letter of 28.08.2010 claims that they are willing to replace the locks. The second note by the gentleman from Banyo Locksmiths is that both tenants – that is, father and son – were satisfied with the result after checked and operated the locks. The note from Mr Austin Senior says: Twisting our words. We were not offered the option that the owner’s promised. The further evidence of the respondent is that Mr Austin Senior has come through – his evidence comes via Mr Austin Junior but, in any event, Mr Austin Senior, it is alleged, spoke with someone from Langs Building Supplies who Mr Austin Junior said inspected the locks and said they were pretty much rubbish and that – there was some comment about sunlight damaging the locks. In respect of this matter, I find that I prefer the evidence of the respondent to the evidence of the applicant, that it certainly does appear from the typewritten document, being the tax invoice from Banyo Locksmiths, that both tenants, the father and son, according to the gentleman from Banyo Locksmiths, said they were satisfied with the result after they checked and operated the locks. I accept that there are comments written by Mr Robert Austin, but having read the evidence and having heard the submissions, I reject that evidence and accept the evidence before me on -- 2 of 4 -- 5 10 15 20 25 30 35 40 45 50 behalf of the respondent in relation to that matter. So, in respect of this matter, the order will be that: (1) The application is dismissed. (2) No order as to costs. Today’s date is 21.9.2010. CLAIM NUMBER 549/10 MR CRAWFORD: Well, having heard the evidence in this matter and having read the material from Robert William Austin, and having heard from the respondent’s representative, Ms V. Lillwall and from Mr Austin Junior on behalf of his father and his mother, there appear to be three main issues emanating, according to Mr Austin Junior, from the document that his father has provided. The first one is that some work remains to be done – this is paragraph 4 – that as the balance of the paragraph has indicated, this appears no longer to be an issue, and that was conceded by the agent and by Mr Austin Junior who is nodding as well. The second issue is whether or not the locks need to be re-keyed. The applicant is concerned about the safety of the place and has handed up a document called Beat the Break, which indicates that houses should be secure and there should be home security tips given on - and there are home security tips given on that document. Ms Lillwall on behalf of the respondent, Harcourts Clayfield, considers that the home is actually a very secure place, and in her – she has been there for five years and there have only been two tenants, and she thinks it is a ridiculous proposition to put that the keys need – that the locks need to re-keyed. She disagrees with the applicant’s assertion in paragraph 13 which says: There may be an unknown number of sets of keys to the house in circulation. She says that as far as she is concerned that is not correct. The only remaining comment or assertion from Mr Austin Junior on behalf of the applicant is that they have requested an increase from four to five occupants in the substantial two-storey, five-bedroom home, and in their view the agent has in effect denied the request by demanding completion of an application form with no status under the Act. The agent, Ms V. Lillwall, has responded by saying the alleged form is simply the standard form documents required by agents to – which is usual practice for potential tenants to complete prior to entering into a lease agreement or entering into a premises and has to be shown – or information about that potential tenant has to be conveyed to the landlord, which in this case the applicant has not done. I have further been handed up two credit references, one from Matthew J. Thompson and another one from Anna Arina, both of Clayfield who consider -- 3 of 4 -- 5 10 15 Viviana and Robert to be very responsible and honourable people, and most stable, pleasant, polite and neighbourly. In any event, on balance, the evidence to my mind favours the respondent rather than the applicant in relation to this matter. Of the various matters mentioned, the first one was resolved as is mentioned in the document provided by Mr Austin Senior. The second one, I agree with the agent’s submission that it is not necessary to re- key the locks; there have only been two tenants, and in her view the keys have not been handed out willy-nilly. Thirdly, I agree with the agent’s response to the question of security of the house, and fourthly, I agree with the need for the agent to comply with the usual practice of providing a form for a potential tenant to fill in prior to moving into a property owned by the landlord. So again, my decision is that the application is dismissed with no order as to costs. -- 4 of 4 --