Dormer v Boyd [2014] QCATA 54

CITATION: Dormer v Boyd [2014] QCATA 54 PARTIES: John Warren Dormer (Appellant) v Stewart William Boyd (Respondent) APPLICATION NUMBER: APL549 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 31 March 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused CATCHWORDS: APPEAL – LEAVE TO APPEAL – RESIDENTIAL TENANCY DISPUTE – where form 11 notice to remedy breach – where application to terminate tenancy – where lessor could not prove amount nominated in form 11 was owing - whether grounds for leave to appeal PROCEDURE – where application for leave for representation refused – where representative appeared at hearing – where tribunal engaged party on the telephone – where representative sworn and gave evidence on behalf of party – whether any failure to observe rules of natural justice – whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 337(2)(b) Pickering v McArthur [2005] QCA 294 -- 1 of 3 -- 2 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] Mr Dormer rented a house to Mr Boyd. There was no written agreement, Mr Dormer issued no receipts for rent. His mother kept a rudimentary, hand-written ledger. Mr Dormer decided that Mr Boyd was over eight weeks behind in his rent. After issuing the necessary notices, Mr Dormer filed an application for a termination of the tenancy agreement. He also sought compensation for rent arrears and water rates. [2] Mr Boyd said he was not sure that he owed rent because he never received receipts or a tenant ledger. An Adjudicator refused to terminate the tenancy agreement. He did not give Mr Dormer any compensation. [3] Mr Dormer wants to appeal that decision. He says the learned Adjudicator failed to acknowledge the authority of his mother to act as his representative. He says the learned Adjudicator dismissed the application without considering the facts, including Mr Boyd’s acknowledgement that he was in arrears of rent. [4] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur1: There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error. [5] Prior to the hearing, the tribunal refused an application that Ms Hampton, Mr Dormer’s mother, appear as his agent at the hearing. Neither Ms Hampton nor Mr Dormer received notice of that decision, because Ms Hampton put the wrong address on the application. That is hardly the tribunal’s fault. [6] The learned Adjudicator explained the position to Ms Hampton and then told her that Mr Dormer could appear by telephone2. The learned Adjudicator then explained the position to Mr Dormer over the telephone3 and Mr Dormer appeared to understand what was required of him. The learned Adjudicator also took evidence from Ms Hampton4. I am satisfied 1 [2005] QCA 294 at [3]. 2 Transcript page 1-2, lines 44-45. 3 Transcript page 1-3, lines 30 to page 1-4, line 15. 4 Transcript page 1-10, line 31. -- 2 of 3 -- 3 that the learned Adjudicator observed the rules of natural justice and that no party was disadvantaged by the way the hearing was conducted. [7] Mr Boyd did acknowledge that he might owe something in rent5. The learned Adjudicator was not satisfied that there was any rent owing or, if there was, that the amount claimed was correct. [8] The learned Adjudicator had to be satisfied that Mr Boyd had committed the breach of agreement stated in the notice to remedy breach6 . If Mr Dormer could not demonstrate that the amount claimed in the notice to remedy breach was actually owing at the time the notice issued, the learned Adjudicator could not be so satisfied. If the learned Adjudicator was not satisfied, he could not order termination of the tenancy agreement. [9] The transcript shows that the learned Adjudicator had reason to question the accuracy of the notice to remedy breach. Mr Dormer had to prove the notice to remedy breach was accurate. He was unable to do so. The learned Adjudicator was right not to terminate the tenancy in those circumstances. [10] The learned Adjudicator could not hear Mr Dormer‘s application for compensation as there was no evidence that the parties had first engaged in conciliation with the Residential Tenancies Authority as required by s 416(1) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). The learned Adjudicator’s decision does not mean that Mr Dormer is left without rights; once he follows the appropriate procedure he can apply to the tribunal for compensation. [11] The learned Adjudicator assisted Mr Dormer by spelling out an alternative mechanism for terminating Mr Boyd’s tenancy7. Mr Dormer would have been better served by following the learned Adjudicator’s suggestion than lodging this application for leave to appeal which is without merit. [12] There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused. 5 Transcript page 1-13, lines 30-43. 6 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 337(2)(b). 7 Transcript page 1-16, lines 7-12. -- 3 of 3 --