S & L v LJ Hooker Mountain Creek [2025] QCAT 472

Queensland Civil and Administrative Tribunal Act 2009, s 102

Residential Tenancies and Rooming Accommodation Act 2008, s 420

Eising v Westgarth Realty Pty Ltd [2019] QCATA 120

Rollone Pty Ltd ACN 101 829 231 v Byrne [2010] QDC 517

Tuendemann v JD Property (Aust) Pty Ltd [2023] QCATA 153;

• This is claim by a tenant, with a counterclaim by the lessor, in relation to a residential tenancy. The relevant issue is whether the lessor is entitled to compensation, to be deducted from the bond or if the bond should be returned to the tenants.

• Provided that the counterclaim has been commenced within the requisite time, section 420 of the Residential Tenancies and Rooming Accommodation Act (RTRAA) allows QCAT to make compensation orders (and/or other orders) for breaches of tenancy agreements including:

(a) An order restraining any action in breach of the agreement;

(b) An order for the payment of the money;

(c) An order requiring an action in performance of the agreement;

(d) An order that a party to the agreement perform the work, or take the steps, stated in the order to remedy a breach of the agreement;

(e) An order for compensation;

(f) An order requiring payment of all or part of the rent under the agreement to the tribunal until -

(i) the whole part of the agreement has been performed; or

(ii) An application for compensation has been decided;

(g) An order requiring payment (from rent paid to the tribunal) towards -

(i) the cost of remedying a breach of the agreement; or

(ii) an amount for compensation.

• As was stated in Tuendemann v JD Property (Aust) Pty Ltd:[1]

Tenants' cleaning and repair obligations when a tenancy ends

• [16] At the end of the tenancy the tenant must leave the premises as far as possible in the same condition they were in at the start of the tenancy, fair wear and tear excepted.[2]
• [17] In Griffin v Gini[3] Judge Fleur Kingham, Deputy President said:

In general, the ordinary meaning of the phrase is concerned with the consequences of ordinary, not extraordinary damage (JSM Management Pty Ltd v QBE Insurance (Australia) Ltd [2011] VSC 339, [36]). In the case of "wear", this might mean, for example, fading paint work on internal and external walls caused by sunlight over time; "tear" refers to disrepair caused by a tenant through unintentional action or through the normal incident of a tenant's occupation (Taylor v Webb [1937] 2 KB 283, 302).

• [18] Claims for compensation arising from a breach of the RTRAA or the tenancy agreement are made under sections 419 and 420 of the RTRAA and must be made within six months of the claiming party "becoming aware of the breach". There is no jurisdiction to extend the time limit.[4]
• [19] As dispute resolution is a mandatory step to commencing an application, the time limit is considered to "freeze" at the time the dispute resolution request is made.[5]
• [20] To the extent the compensation sought is not time-barred under s 419(3), under s 420 the tribunal may make an order for the payment of money or an order for compensation on an application about a breach.
• [21] Where a lessor is claiming compensation due to an act or omission of the tenant, they must take all reasonable steps to mitigate their loss and are not entitled to receive compensation for any loss or expense that could have been avoided by taking the steps.[6]
• An order under 420(1) (e) in favour of a lessor in relation to the reletting of premises must not be made for an amount that is more than the reletting costs.
• Orders are discretionary and must be fair and equitable under section 13 of the QCAT Act.[7]
• Section 136D(2) RTRAA requires QCAT to consider specific factors when making orders about rental bonds, including tenant efforts to comply with section 188(4), compliance with the RTRAA, and evidence supporting claims.
• Where there has been domestic violence (not alleged here), the tenant is not to be penalised (s 136D(3) RTRAA).
• If a lessor's claim for compensation from the bond is unsuccessful, the bond should be returned to the tenant.[8]
• Section 188(2) and clause 26(1) of Form 18A require tenants to keep the premises clean, considering the condition at the start of the tenancy. Under section 188(4) RTRAA and clause 37 of Form 18A, tenants must leave the premises in the same condition as at the start of the tenancy, except for fair wear and tear. If the property was poorly cleaned at the start (as per the entry condition report), tenants are not required to return it in better condition.
• Section 188(3) and clause 26(2) of Form 18A prohibit tenants from maliciously damaging the premises or allowing others to do so.
• Special terms requiring professional cleaning or fumigation are only enforceable if the property was professionally cleaned or fumigated at the start of the tenancy. Otherwise, such terms are unenforceable under section 53(1) RTRAA.[9]
• A lessor or agent cannot require tenants to use a specific cleaning service, as this violates section 171(2) RTRAA. However, requiring "professional cleaning" by an unspecified provider is not illegal.[10]
• If the property was professionally serviced at the start, a tenant's non-professional cleaning at the end constitutes a breach of section 188(4), regardless of the quality of the cleaning. [11]

• Tenants are entitled to their bond unless the lessor proves a valid claim for compensation.[12]
• The lessor bears the onus of proving a breach, on the balance of probabilities, even if the tenant is the applicant.
• The Tribunal must assess cleaning and repair claims based on evidence, such as entry and exit condition reports, and cannot rely solely on quotations without supporting sworn statements or cross-examination.[13]

• Tenants have no legal right to be given an opportunity to return and rectify cleaning or damage after the tenancy ends. The obligation under section 188(4) crystallises at the end of the tenancy, and failure to comply constitutes a breach.[14]

• It is not necessary for an injured party to have incurred expenses to rectify a breach before bringing a claim.[15]

• On 22 November 2024, Ms T of LJ Hooker was made aware of concerns regarding the property by the tenant. Subsequently, on 21 January 2024, an abandonment inspection was conducted by Ms T in the presence of Ms Price. During the inspection, it was observed that the property was left in a state of disarray. The property was found unlocked, with the sink filled with slimy water, dirty dishes, and food left in the fridge and freezer. The dishwasher contained dirty, mouldy dishes, and there were further signs of neglect, such as unflushed urine in the toilet, a strong smell of urine, and underwear left in the laundry area. Additionally, there were concerns about missing items, prompting Ms T to inspect the cleaner's car to ensure the items were not removed or misplaced. Based on the evidence presented, I accept Ms T's account as credible and consistent with the findings during the inspection.

• On 21 January 2024, Ms Price attended the property inspection alongside Ms T, further corroborating the events and observations made by Ms T's during the visit. Additionally, evidence indicates that Ms Price's office acted diligently in forwarding the request for additional tenants to the lessor, with a proactive and professional approach to managing the tenancy.

• The evidence provided by Ms N (by telephone) the owner of Cleaner Things, indicates that the property was in significant disarray when she attended. She observed underwear with faeces in the bathroom and rejected any suggestion that the property had been cleaned prior to her attendance. Her testimony strongly supports the claim that the property was left in an unclean state, in contrast to the state on entry.

• The professional garden services provider gave evidence, by telephone, that attended the property, moved the lawn and removed palm debris. I accept that he attended and thoroughly and efficiently performed the work and rubbish removal claimed but I find that due to the extensive foliage on the property, the work undertaken put the property in a better state than found on entry, as the tenants had only performed similar work less than a week earlier.

• In contrast, Mr O, a handyman confirmed that he conducted yard maintenance on 14 January 2025 and performed such work every 2-4 weeks as required. He described the yard as hard to maintain and detailed his activities, including trimming gardens, pruning, pulling vines, and removing three trailer loads of green waste. Metadata from photographs and a text message corroborates his presence on 14 January 2024. Mr O stated that the house was in a generally tidy state on 14 January 2025, tidier than when Mr L initially moved in. He also noted that no other individuals were present on 14 January 2024. However, he acknowledged that winds a week later caused additional debris, such as palm fronds, to accumulate.
• In analysing this evidence, Ms N's account directly contradicts the suggestion that the property had been cleaned, as she observed clear signs of neglect and unsanitary conditions. On the other hand, Mr O's evidence focuses primarily on the external maintenance of the property, with his description of the house being "tidy" limited to the state of the yard. His observations do not directly address the internal condition of the property, which was the focus of Ms N's testimony. Furthermore, his acknowledgment of the challenges in maintaining the yard and the impact of weather conditions suggests that the external tidiness may have been temporary and subject to rapid deterioration. Overall, Ms N's evidence provides a more direct and compelling account of the internal state of the property, supporting the claim that it was not cleaned or maintained adequately.

• Mr SD, a part-time labourer for Mr L, stated that he accompanied Mr O to the property and spent approximately four hours there. During this time, he assisted in filling a trailer three times, presumably with waste or debris from the property. This evidence aligns with Mr O's account of conducting yard maintenance and removing three trailer loads of green waste. It supports the claim that significant work was undertaken to tidy the external areas of the property. However, Mr SD's testimony does not provide any insight into the internal condition of the property, nor does it address whether the property was left in a clean or habitable state overall. While his evidence corroborates the external maintenance efforts, it does not contradict or diminish the observations made by Ms N regarding the unclean and neglected state of the interior. This suggests that while the yard may have been attended to, the internal condition of the property remained problematic.

• Ms K, an employee of Mr L with past experience as a professional cleaner, provided evidence that she assisted with the move and performed some vacuuming at the property. However, she clarified that she was not engaged to conduct a full professional bond clean and that the cleaning was a collective effort involving the tenants. Ms K stated that the cleaning was done to her standards and claimed that a bond clean was completed. She also mentioned that keys were handed back on 21 January 2025 but later conceded that she might have been mistaken and that this could have occurred on 23 January 2025. Notably, she did not take any photographs or bring her phone into the property to document the condition.
• Upon analysis, Ms K's evidence lacks the detail and corroboration provided by Ms N, Ms Price, and Ms T. While Ms K claims that a bond clean was performed, her admission that she only assisted with vacuuming and was not responsible for a professional clean undermines the reliability of her statement. Additionally, her inability to provide photographic evidence or a consistent timeline further weakens her testimony. In contrast, Ms N, Ms Price, and Ms T provided detailed, consistent, and corroborated accounts of the property's unclean and neglected state, supported by specific observations and inspections. For these reasons, I prefer the evidence of Ms N, Ms Price, and Ms T, as it is more credible, thorough, and supported by tangible details.

• Mr K, an employee of Mr L, provided evidence regarding the state of the property when the tenants moved in. He stated that the property appeared clean, although he only entered the lounge room and did not inspect the entire house. He also testified that he picked up a mattress for an individual named 'Simon', which was located near the fireplace. While he believed the mattress was a queen size based on how it fit in his car, he acknowledged that he was not present in a professional capacity and could not provide a detailed account of the property's overall condition.

• The tenant, Mr L could not provide a proper explanation for failing to hand back the keys, which delayed the return of the property until 23 January 2024. The tenant's behaviour suggested a sense of treating the property as their own, as they involved employees in cleaning tasks and delegated the responsibility of returning the keys to Ms K, despite the lessor already engaging cleaners by that point.
• The evidence indicates that the tenants claimed to have been using the property like a hotel, living out of a suitcase while focusing on their other business interests. This behaviour, combined with other circumstances, reasonably led Ms T and the lessor to believe that the tenants had vacated the property. The lessor's concerns were further heightened by prior complaints about the property being used as an Airbnb, which likely influenced their preference to lease the property to a family and avoid prolonged vacancies.
• The nature of the property - a unique, older-style timber house with high A-frame roofs and surrounded by greenery and rainforest -added to the lessor's concerns. Such properties require consistent occupancy and care to prevent deterioration, particularly in a rainforest environment where maintenance is critical to avoid issues like overgrowth or structural damage. These factors collectively justify the lessor's anxiety about ensuring the property was properly maintained and occupied, as well as their actions in response to the tenants' behaviour. This evidence further supports the lessor's perspective and aligns with the findings of Ms N, Ms Price, and Ms T regarding the state and management of the property.
• I find that Mr L, unused to renting after owning his own property, became offended when Ms Price contacted them about the state of the property; I find this was the reason for vacating. He denied that 'Simon' could have left the property in an unclean state, asserting that 'Simon' was exceptionally clean, despite evidence to the contrary, including the state of the property observed by Ms N, Ms Price, and Ms T.
• There were substantial inconsistencies, for example, 'Simon' was living in the property as of 4 December 2025, even before applying. Mr L denied receiving key emails, despite evidence to the contrary. They also stated that Mr O, Ms K, and themselves were involved in cleaning, but this was contradicted by Ms S, who confirmed she was travelling at the time. While Ms N claimed to have cleaned the brickwork and spent two days cleaning before vacating, this is inconsistent with the observations of Ms N, who found the property in disarray. Furthermore, the alleged deficiencies on entry where not reflected in the entry report, attributing it to their inability to read and write, which raises questions about their ability to fulfil tenancy responsibilities.
• In contrast, the evidence provided by Ms N, Ms Price, and Ms T is consistent, detailed, and corroborated. Their accounts of the property being left in a neglected state, including specific observations of uncleanliness and disarray, are supported by inspections and photographic evidence. Their testimonies are clear, credible, and align with the timeline of events. For these reasons, the evidence of Ms N, Ms Price, and Ms T is preferred, as it provides a more reliable and comprehensive account of the property's condition and the circumstances surrounding the tenancy.

• Ms S provided evidence that she was away working when the tenants vacated the property, meaning she could not give direct evidence about the state of the property at the time of vacating. She stated that she did not believe she was present after 14 January 2025 but alleged that she had scrubbed the laundry walls, cabinetry, and bathroom before leaving. However, her absence during the critical period and her inability to verify the property's condition upon vacating limit the reliability of her testimony.
• Ms S acknowledged that both tenants remained responsible for the property until the keys were returned on 23 January 2025. This admission aligns with the lessor's position that the tenants retained responsibility for the property during this time. Given the factual controversy surrounding the state of the property, it is reasonable to prefer the evidence of the lessor's independent witnesses, such as Ms N, Ms Price, and Ms T, who provided detailed and consistent accounts of the property's neglected condition. Their observations are corroborated by inspections and tangible evidence, making their testimony more credible and reliable than Ms S's limited and indirect account.

• Both the lessor and the tenants were not legally represented; however, they were sophisticated litigants with experience in property matters. Notably, the tenants were involved in real estate, including buying and renovating houses, which suggests they had a reasonable understanding of their obligations as tenants. The tenants were paying $950 per week for the property in Buderim, and Mr L, one of the tenants, had other business interests in building and real estate, including renovating another property. The tenants frequently travelled and lived out of a suitcase, which contributed to their lack of consistent presence at the property. Mr L appeared to take offence when approached about the state of the property, which may have influenced the circumstances surrounding their departure.
• The lessor acted reasonably in declining to approve additional occupants. The property had previously been used as an Airbnb, which had caused issues with neighbours. The lessor approved the current tenants on the understanding that the property would be occupied by the parents, their daughter, and her friend. However, the tenants chose to travel extensively, claiming they emptied the bathroom entirely during their absences, while leaving the property to be cared for by others. This arrangement created uncertainty about who was responsible for the property during their absences.
• The tenants alleged that the property was not in good condition when they moved in, but this claim is not supported by the entry condition report, which indicates the property was in an acceptable state. While the tenants took photographs of disputed items, they failed to provide any evidence to corroborate their claims about the property's condition upon entry. The only issues demonstrated were an isolated patch of hair on the carpet and some dust under the bed, which were minor and did not indicate a lack of cleanliness. Additionally, the lessor did not claim for cleaning the 8-foot-high ceiling fan, which was noted as not cleaned prior to the tenancy. This further supports the conclusion that the property was in the condition described in the entry report.
• The tenants arranged for Mr O and Mr SD to clean the gardens on 14 January 2025, which included mowing and removing three trailer loads of green waste. However, any additional garden work conducted on 28 January 2025 was unnecessary or resulted from weather events after 16 January 2025. The entry and exit condition reports do not show significant differences in the state of the gardens, further supporting the lessor's position.
• There is a factual dispute regarding the state of the property when the tenants vacated. The tenants claimed the property was immaculate when they left, while also alleging it was not in good condition when they moved in. This raises questions about what occurred between 14 January 2025, when the gardens were cleaned, and 21 January 2025, when the property was inspected. The tenants denied that 'Simon', who they allowed to stay at the property, was unclean or responsible for the state of the property, but they could not provide a clear explanation for what happened during this period. The two real estate agents who inspected the property gave evidence under oath, which was corroborated by Ms N of Cleaner Things, who found the property in disarray.
• The evidence provided by Ms N, an independent witness, is preferred over that of Ms K, an employee assisting the tenants. Ms N's observations of the property's condition on 21 January 2025, including dirty dishes, slimy water, urine in the bathroom, and underwear with faeces, suggest that the property was not left in a clean state. This indicates that either Ms K's cleaning efforts were inadequate or that individuals allowed by the tenants to remain in the property caused the disarray. Regardless, the state of the property on 21 January 2025 necessitated a professional bond clean by Cleaner Things.
• The tenants failed to adequately explain what occurred between 14 and 21 January 2025. They admitted to giving a set of keys to 'Simon', a person they allowed to come and go from the property and did not express concern about his presence. However, having given notice to vacate, the tenants were obligated to ensure the property was vacated and cleaned after 16 January 2025. Their failure to do so, including allowing additional persons to potentially reside there, resulted in the lessor incurring additional cleaning costs.
• Considering the evidence, I find that the lessor's independent witnesses provided credible and consistent testimony, which I prefer over the tenants' claims and the evidence of their employees.
• I find that the property was not left the same state as the entry condition report, and that the lessor acted reasonably in engaging professional cleaners. I allow the sum of $1,500 to cover the costs of cleaning, including addressing cobwebs and additional work required to restore the property to an acceptable condition.
• The evidence suggests that a mattress was present in the property when the tenants moved in and was later removed. The claim that 'Simon', who reportedly had no fixed address, owned the mattress is unsubstantiated, as 'Simon' was not called to confirm this. This lack of corroboration, combined with the fact that a mattress was indeed removed from the property, supports the conclusion that the mattress belonged to the lessor. Furthermore, Mr K's limited inspection of the property and his lack of professional involvement reduce the reliability of his testimony regarding the overall cleanliness of the property.
• Based on the evidence, it is possible to conclude that a mattress, likely a king size, was present in the property at the start of the tenancy and was removed without replacement. On balance, however, I prefer the evidence on behalf of the lessor and accept the tenant allowed a king sized mattress to be taken from the property and that $500 is a reasonable cost of replacing the mattress.
• I accept the tenant's evidence that it performed yard work prior to departure. I find that the additional gardening and rubbish removal was due to the density of trees, including palms on the property. The entry condition report shows there was leaf litter and palm debris present at the property on entry. The lessor's costs of a more thorough yard clean up are to be borne by the lessor.

• Whilst Ms Price was exceptionally professional and proficient in representing the lessor at the hearing, her costs incurred in preparing or appearing on this case are not recoverable. Under s 102 Queensland Civil and Administrative Tribunal Act, the only costs the Tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules. Rule 83 of the Queensland Civil and Administrative Tribunal Rules restricts recoverable costs, other than for minor debt claims, to the filing fee. This claim is a tenancy matter under the RTRAA, being compensation for breach not a claim for a debt or liquidated demand, readily calculated by a pre-agreed or other formula.
• As Robin DCJ stated in Rollone Pty Ltd ACN 101 829 231 v Byrne [2010] QDC 517, citing Environmental Systems Pty Ltd v Peerless Pty Ltd [2008] VSCA 26 at [79]:

"The ordinary meaning of "liquidated damages" is a sum fixed by the parties to a contract as a genuine pre-estimate of damage in the event of a breach, whether as a predetermined lump sum, or by means of a specific calculation or scale of charges or other positive data..." and at [81], "It is... clear that a claim for unliquidated damages is not converted into a claim for liquidated damages by reason of the plaintiff having incurred and being able to specify the costs for which the damages are claimed."

• Furthermore, I have not been directed to any provision within the residential tenancy agreement that would indicate such costs were contemplated by the parties at the time of entering into the agreement, nor that they could be claimed in the event of a breach by either party.
• I regard Ms Price's costs as expenses that property owners are expected to bear as a normal consequence of being out of possession of their property.

• The tenants are to pay the lessor the sum of $4,839 (including filing fee of $158) calculated as follows:

[1] [2023] QCATA 153.

[2] Clause 37 of the standard term tenancy agreement corresponding to s 188(4) of the RTRAA.

[3] [2011] QCATA 325 at [12].

[4] Gubier v Queensland Department of Housing and Public Works [2020] QCATA 23 [9].

[7] Eising v Westgarth Realty Pty Ltd [2019] QCATA 120 [21].

[8] Capital & Harvest Pty Ltd v Bae [2023] QCATA 94, 25-(g)

[9] Eising v Westgarth Realty Pty Ltd (above), [25]-[32].

[10] Eising v Westgarth Realty Pty Ltd (above), [19]-[23].

[11] Eising v Westgarth Realty Pty Ltd (above), [31].

[12] Property Indulgence v Allen [2020] QCATA 66 [11]).

[13] Cong v Awad [2021] QCATA 25 [14]; Juhar v Carter [2022] QCATA 184 [25].

[14] Tuendemann v JD Property (Aust) Pty Ltd [2023] QCATA 153 [33].

[15] Ramsay v Fraser [2024] QCATA 72 [36].