A building manager who locked out a tenant from her apartment and ignored pleas for help, has claimed the eviction without notice was justified because it was a holiday rental.
Sarah Scholefield signed a three month $350/week residential tenancy agreement in January 2011 for an apartment at Beachcomber, Surfers Paradise.
When she returned from three days in Melbourne on 21 October she found the electronic key to her unit wouldn’t work.
Staff were stony faced in response to her desperate pleas. Finally given a key two days later, she found all her belongings gone and that the unit had been relet to someone else.
They refused to provide even copies of the tenancy agreement or receipts for rent, the $1400 bond or the $1400 “security deposit”.
Beachcomber answered her claim for the cost of emergency accommodation and replacement of belongings by asserting she was merely a holiday tenant owing rental arrears of $1650 since August.
They claimed she couldn’t be reached by phone – despite operating a successful eBay re-seller operation from the premises – and that on an inspection visit to her unit, two “bikies” answered the door and said she “had done a runner”.
Management boss Greg Kafritsas testified the bikies had told staff they “would be staying there for a few days and when they left, they would take from the unit what belonged to them”.
He also claimed that the remainder of her goods were left outside the building for her to collect which she did, leaving what she didn’t want.
Scholefield agreed she had signed a “holiday guest registration” but the tribunal accepted – she was “an honest and open witness” – she had also signed a residential tenancy agreement.
Management had been entirely un-cooperative throughout the process.
“Beachcomber has singularly failed to present financial evidence in support of its claims,” ruled QCAT member Michael Howe. “It seems inconceivable that documentation evidence of the financial history does not exist. It obviously has written records” it has not produced.
Payment of the $1400 bond was substantiated from its bond ledger, “one of the few documents produced of consequence”.
Even though phone, Foxtel, electricity and water was included in the weekly tariff, the tribunal ruled the arrangement was more consistent with the residential tenancy than that of a holiday let.
Beachcomber could not defeat the statutory presumption in s 31 (2) of the Residential Tenancies and Rooming Accommodation Act that a period of occupation for greater than six weeks is not a holiday rental which would have been exempt from the strict tenancy termination procedures that apply to residential leases.
Its failure to validly terminate the tenancy exposed it to damages for excluding the tenant from her home and causing the loss of her possessions – both very serious matters in the eyes of the tribunal.
Member Howe found the “bikie” claim “extraordinary”. That police were not called on bikies answering an occupant’s doorbell and announcing they intended to “stay for a few days”, was beyond belief.
The RTRA provisions regarding goods left behind at the end of a tenancy did not apply. In this case the goods were removed while a valid tenancy was on foot.
The tribunal assessed compensation according to the statutory requirements of s 420 bearing in mind that such assessment was not bound by common law limitations, e.g. remoteness of damage.
Allowed damages – which in RTRA Act matters are not subject to the usual $25k QCAT limit – included the insured value of Scholefield’s goods at $36.5k, the bond, security deposit, $1,800 in cash in the room safe and $1,000 for emergency accommodation. Nothing was awarded (nor it appears, claimed) for punitive or exemplary damages.
Total damages ordered by QCAT member Howe, were $41k. Beachcomber appealed and the appeals tribunal confirmed its liability and the order for payment.
High Surf Resorts Pty Ltd t/as Beachcomber Surfers & The Kafritsas Family Trust v Scholefield [2014] QCATA 149 Senior Member Stilgoe, OAM 24/06/2014
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