Anderson & Anor v Ace Finance Aust Pty Ltd [2015] QCATA 68

CITATION: Anderson & Anor v Ace Finance Aust Pty Ltd [2015] QCATA 68 PARTIES: John Anderson and Sonja Anderson (Appellants) v Ace Finance Aust Pty Ltd (Respondent) APPLICATION NUMBER: APL012-15 MATTER TYPE: Appeals HEARING DATE: 6 May 2015 HEARD AT: Brisbane DECISION OF: Dr J R Forbes, Member DELIVERED ON: 20 May 2015 DELIVERED AT: Brisbane ORDERS MADE: The application for leave to appeal is dismissed. CATCHWORDS: APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where loan for land development scheme – where appellants’ company mortgaged residential property as security for loan – where appellants occupied the residence for a considerable time – whether appellants became residential tenants of the company – where appellants’ company defaulted under loan agreement – where lender placed in debtor’s shoes under security documents – where lender served RTA section 317 notice upon appellants – where appellants failed to vacate as notice required - whether tribunal has jurisdiction in application for termination order – whether section 317 notice may be treated as sufficient basis for RTA section 293 application – whether defect of form of notice may be disregarded – alternatively, whether tenancy ended by RTA section 277(6) - application for leave to appeal dismissed -- 1 of 7 -- 2 Queensland Civil and Administrative Tribunal Act 2009 ss 61, 142 Residential Tenancies and Rooming Accommodation Act 2008 ss 12, 277, 291, 293, 317, 349, Forms 12, 18a, 19 Bauer v McMillan & Anor [2013] QCATA 140 Bergin v Minister of Housing and Public Works [2013] QCATA 190 Butler v Mackie [2013] QCATA 53 Cummings v Cairns and District Regional Housing Corporation Ltd [2013] QCATA 161 Equitiloan Securities Pty Ltd v Corozo Pty Ltd [1999] 1 Qd R 243 House v The King (1936) 55 CLR 499 Kwon v Cha; Kwon v O'Neill [2015] NSWCA 111 Lamont v Ray White Birkdale [2011] QCATA 235 Lowe v Aspley [2010] QCATA 59 Margaret Trimble v John Babet [2013] QCATA 81 O'Keefe v Fitzpatrick and Anor [2012] QCATA 45 Permanent Custodians Pty Ltd v Holsef Pty Ltd (in liq) [2004] QSC 299 Richardson v McArthur & Associates [2014] QCATA 44 Sendall v Howe and Anor [2012] QCATA 41 APPEARANCES and REPRESENTATION (if any): APPELLANTS: Ms K Gothard instructed by Acuity Legal RESPONDENT: Mr C Tam instructed by Hickey Lawyers REASONS FOR DECISION [1] On 5 November 2014 the respondent (“Ace”) initiated this residential tenancy dispute against the appellants (“Andersons”).1 It is not based on a standard General Tenancy Agreement.2 The tenancy, if any, is implicit3 in the peculiar circumstances of a land development scheme. [2] In July 2014 the Andersons’ family company, Odna Pty Ltd, purchased land at Regents Park, Queensland (“the land”). For that purpose Odna borrowed $3.5 million from Ace, a debt secured by registered mortgage 714576405 (“the mortgage”) and a “Finance and Development Agreement” (“the F & D agreement”) between Ace and Odna, guaranteed by the Andersons. 1 Ace Finance Aust Pty Ltd v Anderson & Anor MCDT2684/14. 2 Residential Tenancies and Rooming Accommodation Act 2008 (“RTA”) Form 18a. 3 RTA s 12(3)(a) (“whether ... wholly in writing, wholly oral, or wholly implied”). -- 2 of 7 -- 3 [3] There is a dwelling on the land (“the house”), which the Andersons occupied from September 20124 until 12 February 2015. Ace proposes to demolish the house and develop the land.5 [4] In or about September 2013, Odna failed to comply with the terms of the loan. There is no evidence that the default has been remedied. [5] The mortgage provides: POWERS OF MORTGAGEE ON DEFAULT: If an Event of Default occurs, [Ace] may do any of the following without first having to make demand or prove default: (a) ... (b) take possession of the property ... (c) eject [Odna] from the property ... (i) pull down ... the property ... (j) do anything [Ace] considers necessary to manage the property ...6 [6] The mortgage further provides: POWER OF ATTORNEY: For valuable consideration and by way of security, [Odna] irrevocably appoints [Ace], each Receiver and every ... Officer of [Ace], severally to be [Odna’s] attorney [to] do anything (including executing documents) (a) that [Odna] could do as owner of the property ... (c) to prosecute ... insurance claims or other claims ...7 [7] The F & D agreement provides: RIGHTS UPON DEFAULT: Without in any way limiting ... Clause 15.2, [Odna] acknowledges that upon the occurrence of an Event of Default, [Odna] shall forfeit all of its right, title and interest in the Security Property8 and any other property the subject of a Security to [Ace] ... At any time after default the [Ace] may ... exercise any powers, rights or privileges conferred by law, this agreement, the Security and any other collateral document or securities ...9 [8] On appeal, there was a faint attempt to stigmatise Clause 15 as penal, but that is not an issue for this forum. [9] On 2 September 2014 the solicitors for Ace wrote to Odna alleging that it was still “in default under the Loan Facility” and demanding that Odna surrender all its assets etcetera to Ace.10 On the same day the solicitors, with a second letter, enclosed “an RTA Form 14 [sic] (Notice to Vacate)” by 4 Affidavit of John Joseph Anderson, filed in QCAT proceedings MCDT2684/13, sworn on 18 December 2014, paragraph 2. 5 Letter Ace to QCAT, 18 December 2014. 6 Mortgage 714576405 dated 17 July 2014, Clause 17.1. 7 Ibid Clause 21. 8 “Security property” means the real property that is secured by the Security: Finance and Development Agreement 17 July 2012, Clause 1.1(bbb); “Security” means the security in Item 7 of Schedule 1 (see also “land” Item 10): Ibid Clause 1.1(aaa); “Land”: the land located at 43 Lambeth Rd Regents Park described as lot 38 on RP123588, Title Reference 14576073. 9 Ibid Clauses 15.1-15.2. 10 Letter Hickey Lawyers to Odna, 2 September 2014. -- 3 of 7 -- 4 4 November 2014. In fact, the enclosed document was a Form 1911, addressed to Mr and Mrs Anderson. [10] On 5 November 2014, when the Andersons were still in occupation of the house, Ace applied for an order of the Tribunal terminating their tenancy of those premises.12 [11] The Andersons defended those proceedings on two grounds: first, that their occupation of the house was not a residential tenancy within the meaning of the RTA, and consequently, that QCAT has no jurisdiction in the matter;13 second, that in any event, the Form 19, as served, is not a proper basis for an application under RTA section 293.14 [12] However, the Adjudicator found that Andersons were residential tenants under the RTA,15 that the Form 19 notice was correctly issued16, and that in the circumstances, it should be treated as a notice under section 293, as well as section 317.17 Presumably the latter finding was a discretionary decision under section 349(1) (Defects in notices) of the RTA which provides: If an application is made to a tribunal by a lessor for a termination order because of a failure to leave, the tribunal may make the order if it is satisfied it is appropriate to make the order in all the circumstances of the case, even though the notice to leave contains a defect. [13] The Adjudicator proceeded to make a termination order, with a warrant of possession effective on 9 February 2015. The timing of the warrant was for the benefit of the Andersons, who claimed that they would be able to refinance the loan no later than 6 February 2015.18 As their counsel put it: “[By] the end of the first week in February they will have either refinanced or they’re dead.”19 Three months later there was no evidence of refinancing. [14] The Andersons now seek leave20 to appeal on the grounds relied on at the trial, and set out in paragraph [11], above. Was there an RTA tenancy? [15] An application for leave to appeal is not an opportunity for a re-trial. There was evidence upon which the Adjudicator was entitled to find that the Andersons held an implied residential tenancy from Odna, to which Ace 11 Notice to vacate from mortgagee to tenant/s, RTA s 317. 12 Application for minor civil dispute – residential tenancy dispute MCDT2684/15. 13 Submissions of Andersons in MCDT2684/14, 14 December 2014; Transcript of hearing 18 December 2014 (Transcript) page 6, lines 42-47; page 10, lines 39-40 et passim. 14 Application for termination for failure to leave. 15 Transcript page 29, line 28. 16 Ibid page 29, lines 39-40. 17 Ibid page 32, lines 2-5. 18 Ibid page 30, lines 13-14, 37; page 31, lines 7-8. 19 Ibid page 21, lines 1-2. 20 As required by the QCAT Act s 142(3)(a)(i). -- 4 of 7 -- 5 succeeded, as lessor, pursuant to Clauses 17 and 21 of the mortgage and Clause 15 of the R & D agreement. [16] It was argued that no tenancy could be created because Odna and the Andersons were not separate legal persons. It was submitted that the Andersons as directors of Odna were mere agents of that company, and legally indistinguishable from it. On this point, the appellants relied on Equitiloan Securities Pty Ltd v Corozo Pty Ltd,21 an extempore decision in a case where only one party was represented. However, there was no evidence of a tenancy in Equitiloan, and therefore, no mention of the RTA. In those circumstances it is unsurprising that the directors were identified with the company. [17] The possibility of a residential tenancy between a family company and its director is recognised in a later case, distinguishing Equitiloan, namely Permanent Custodians Pty Ltd v Holsef Pty Ltd (in liq).22 There an implied tenancy arose by the acquiescence, or (as White J put it) the “sufferance” of the company’s representative. [18] In the present case it is undisputed that the Andersons lived in the house for well over two years. It is reasonable to infer that, in all that time, they slept, ate, enjoyed leisure and the occasional company of friends, and generally acted as independent householders. The proposition that they were doing those things predominantly on behalf of Odna is not realistically tenable. A contrary view implies an inordinate affection for legal fiction. [19] I find no error in the Adjudicator’s finding of a residential tenancy, to which Ace succeeded as lessor, pursuant to the security instruments. The Disputed Notice [20] The appellants accept that the Form 19 notice is valid for the purposes of section 317 of the RTA, but contest its validity for the purposes of section 293 of the RTA, which enlivens QCAT’s jurisdiction. They insist, as in a mantra, that the RTA is prescriptive legislation, citing Lowe v Aspley23 and Lamont v Ray White Birkdale.24 But Lowe v Aspley exposed an error no less fundamental than the absence of an existing, unremedied breach of the agreement. Similarly, in Lamont, it was not a matter of a technically inappropriate form, but a clear contravention of section 291(2)(b)(ii) of the RTA.25 A closer inspection of other cases to which the prescriptive label applies finds that they involve breaches of mandatory provisions such as strict time limits.26 The adjective “prescriptive” is not be isolated from such 21 [1999] 1 Qd R 243. 22 [2004] QSC 299. 23 [2010] QCATA 59. 24 [2011] QCATA 235. 25 The tenant had already taken “some other action” to enforce the tenant’s rights – a circumstance in which a landlord’s use of section 291 is strictly prohibited. 26 See for examples Bergin v Minister of Housing and Public Works [2013] QCATA 190; Richardson v McArthur & Associates [2014] QCATA 44; Cummings v Cairns and District Regional Housing Corporation Ltd [2013] QCATA 161; Bauer v McMillan & Anor [2013] QCATA 140; Margaret Trimble v John Babet [2013] QCATA 81; Butler v Mackie [2013] -- 5 of 7 -- 6 contexts and applied to any and every formal defect. Otherwise, section 349 of the RTA would be meaningless. [21] This is not a case in which an invalid notice was converted into a valid notice, as in Lamont v Ray White Birkdale.27 Rather, a valid section 317 notice was deemed capable of serving also as a section 291 notice. It is noteworthy that, while section 317 specifically refers to “a notice in the approved form”, no similar direction appears in section 291. In Permanent Custodians28 the preferred approach to service – “to all intents and purposes” – was pragmatic rather than doctrinaire. [22] In exercising his section 349 discretion, albeit implicitly, the learned Adjudicator noted, as a vital point, that the Form 19 notice followed a Form 12 notice in allowing two months to vacate.29 Ace was in the position of landlord and mortgage. The one form gave substantially the same information, and the same breathing space, as two separate forms would have done. It was reasonably considered that “no detriment”30 was caused to the Andersons by treating the valid Form 19 as a virtual Form 12 as well. Section 61 of the QCAT Act31 could also have been called in aid. [23] It was briefly suggested that the Form 19 should have been issued in the name of Odna, not Ace. Apart from the fact that this submission is inconsistent with the concession, at trial, that the form, as a section 317 notice, was technically correct,32 the security documents, as quoted, suffice to enable Ace to treat Odna’s rights and interest in the land as its own. Analogously, those documents have the same effect as the clause in a standard residential tenancy agreement which enables a lessor’s agent to sue and be sued in the agent’s own name.33 [24] In treating the Form 19, in the circumstances, as a virtual Form 12, the Adjudicator exercised a lawful discretion under section 349 of the RTA. His decision could be disturbed only if it miscarried in the manner described in House v The King34 and innumerable cases in that line. No such error has been shown. [25] The learned Adjudicator, under considerable pressure of time, in a complex of unusual circumstances, reached a just, sensible and practical conclusion, showing due consideration of the appellants’ interests in his timing of the QCATA 53; O'Keefe v Fitzpatrick and Anor [2012] QCATA 45; Sendall v Howe and Anor [2012] QCATA 41. 27 [2011] QCATA 235. 28 [2004] QSC 299. 29 Transcript page 28, lines 16-19. 30 Ibid page 32, line 4. 31 Relief from procedural requirements. 32 Transcript page 6, lines 4-6. 33 RTA Form 18a Part 2 paragraph 43, enabling the agent to “stand in the lessor’s place in any application to a tribunal”. This clause was applied, for example in Lamont v Ray White Birkdale [2011] QCATA 161, cited by the appellants. 34 (1936) 55 CLR 499 at 504-505; Kwon v Cha; Kwon v O'Neill [2015] NSWCA 111 at [30]. -- 6 of 7 -- 7 order. Ms Gothard’s able submissions notwithstanding, I am not persuaded that leave to appeal should be granted. RTA section 277 [26] If the preceding analysis is in error, it should be noted that, quite apart from any section 293 application, a residential tenancy agreement ends, if, after receiving a notice under section 317, the tenant vacates the premises.35 It is clear that Ace is a mortgagee, that, as such, it issued a valid 317 notice, and it is conceded that Andersons vacated the premises in February 2015. Accordingly, the tenancy is at an end. [27] The application for leave to appeal must be dismissed. ORDERS The application for leave to appeal is dismissed. 35 RTA s 277(6). -- 7 of 7 --