Brandies v IME Pty Ltd [2013] QCATA 169

CITATION: Brandies v IME Pty Ltd [2013] QCATA 169 PARTIES: Heidi Brandies (Applicant/Appellant) v IME Pty Ltd t/as SAS Property Group (Respondent) APPLICATION NUMBER: APL082-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe OAM, Senior Member DELIVERED ON: 15 July 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 31 January 2013 is set aside. 4. The proceeding is remitted to the tribunal at Southport for hearing before a different member or adjudicator. 5. Each party shall file and serve in Southport MCDT 1342/12 any further material on which they wish to rely by 5 August 2013. CATCHWORDS: MINOR CIVIL DISPUTE – where application for tenancy signed – where application subject to house being completed – where tenancy agreement sent and signed by tenant – where tenancy agreement not signed by lessor – where bond paid – whether tenancy agreement – whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 12, 53, 61, 62, 111, 116, 182 Residential Tenancies and Rooming -- 1 of 5 -- 2 Accommodation Regulations 2008 (Qld) Schedule 1 Part 2, cll 4, 18, 19 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 APPEARANCES and REPRESENTATION (if any): The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION [1] In September 2012, Ms Brandies packed up her house in Penrith, loaded her three children in the car and moved to the Gold Coast to fulfil her dream. Unfortunately, the new house she thought she had rented was not finished, she could not move in, and the dream became a nightmare. The letting agent, SAS Property Group, kept promising that she could move in to the house. Eventually, Ms Brandies gave up waiting and rented a different house. She claimed compensation from SAS. The learned Adjudicator refused her claim, saying that she did not have a tenancy agreement. [2] Ms Brandies wants to appeal the learned Adjudicator’s decision. She says that she did have a tenancy agreement, quoting a number of sections from the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“Residential Tenancies Act”). She also says that the learned Adjudicator did not give her an opportunity to present all her evidence. [3] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?1 Is there a reasonable prospect that the applicant will obtain substantive relief?2 Is leave necessary to correct a substantial injustice caused by some error?3 Is there a question of general importance upon 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 2 Cachia v Grech [2009] NSWCA 232 at 2. 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. -- 2 of 5 -- 3 which further argument, and a decision of the appeals tribunal, would be to the public advantage?4 [4] Ms Brandies found the property on the internet. She made inquiries with SAS and that office sent her an application form. Page 4 of the application states: I acknowledge that this is an application to lease the property for which I am applying and that my application is subject to the owner’s approval and the availability of the premises on the due date. No action will be taken against the landlord or the agent should the premises not be ready for occupation on the due date or if my application is not successful [5] Ms Brandies signed the application and returned it to SAS on 30 August 2012. On 3 September 2012, she received an email from SAS advising that her application was approved and asking for two weeks rent in advance. The email also advised Ms Brandies that she had to pay the bond at least 48 hours before the lease commenced and that the start date was 27 September 2012. Ms Brandies received the tenancy agreement by email on 4 September 2012. She signed it and returned it the next day. She also paid $820 – two weeks rent – to SAS. On 26 September 2012, Ms Brandies paid the bond into the SAS trust account. She expected to take possession of the property on 28 September 2012. On 18 October 2012, the property was still not ready so Ms Brandies arranged a tenancy of another property through another agent. [6] SAS argued, and the learned Adjudicator accepted, that there is no tenancy agreement unless and until the lessor, or the lessor’s agent, signs and returns the tenancy agreement. [7] Section 12(1) of the Residential Tenancies Act states that a residential tenancy agreement is an agreement under which a person gives someone else a right to occupy residential premises. The agreement created by s 12(1) does not need to be in writing.5 [8] The requirement for writing and the standard terms of a tenancy are found in s 61. Section 61(6) says that nothing in s 61 affects the enforceability of an agreement that is not in writing. By implication, nothing is s 61 can affect the enforceability of an agreement that does not contain the standard terms. [9] Under s 62, SAS had to give Ms Brandies a copy of the tenancy agreement on or before the day she moved in. She had to sign and return it within 5 days. So far, so good. When SAS received the signed agreement from Ms Brandies, it had to sign and return it within 14 days. It did not do so. The Residential Tenancies Act does not contemplate that a tenancy agreement signed by the tenant can be held as an offer until the property is available. [10] Ms Brandies paid a rental bond. Section 111 defines a rental bond as an amount paid “under the agreement”. SAS could only accept the bond if it also accepted that there was a valid tenancy agreement. Otherwise, Ms Brandies’ payment was either a key deposit under s 156, or a holding 4 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. 5 Residential Tenancies Act s 12(2). -- 3 of 5 -- 4 deposit under s 159. SAS’s paperwork does not reflect either of those propositions. SAS paid the bond to the Residential Tenancies Authority under s 116. I am satisfied that SAS accepted the bond believing that there was a valid tenancy agreement. [11] Ms Brandies submits that the acknowledgement in her application, reproduced at [4] above, is a breach of s 53. Section 53 states that an agreement is void to the extent that it purports to exclude change or restrict the operation of the Act about the terms of a tenancy agreement. [12] I agree with Ms Brandies’ proposition for the reasons that follow. [13] Clause 4(1) of the tenancy agreement states that the agreement starts on the day stated in the agreement at Item 6.2. [14] Clause 18 of the standard terms states that the lessor must ensure there is no legal impediment to occupation of the premises by the tenant if, when entering into the agreement, the lessor knew about the impediment or ought reasonably to have known about it. The Residential Tenancies and Rooming Accommodation Regulation 2008 (Qld) give, as an example of a possible impediment, that a certificate of classification is required under the Building Act. [15] Clause 19 of the standard terms gives the tenant a right to vacant possession on the day the tenant is entitled to occupy the premises. That right is reinforced by s 182. [16] Ms Brandies’ tenancy did not start on the day stated in her agreement. SAS knew there was a potential impediment, because it knew the house wasn’t finished. It did not ensure that the impediment had been removed so that Ms Brandies could move in. Ms Brandies did not get vacant possession. SAS attempted to avoid the consequences of its failure by a catch all acknowledgement in the application for a tenancy. Section 53 prevents this; the acknowledgement is of no effect. [17] SAS argues that the tenancy agreement was subject to conditions precedent: that the premises were available; that the house had been completed; that the builder had given the keys to SAS; and knowledge of the commencement date. There is no evidence to support a finding that there were conditions precedent to the tenancy agreement. The tenancy agreement itself is compelling evidence to the contrary, as it nominates a start date without reservation. [18] SAS also submits that Ms Brandies repudiated the tenancy agreement by withdrawing her offer to be bound. Given that SAS was unable to offer Ms Brandies vacant possession of the premises, I find the more likely explanation is that Ms Brandies accepted SAS’s breach of the agreement. [19] I am satisfied that the learned Adjudicator erred in finding that there was no tenancy agreement between the parties. Leave should be granted, the appeal allowed and the learned Adjudicator’s decision of 31 January 2013 set aside. [20] Ms Brandies also complains that, because the learned Adjudicator found there was no tenancy agreement, he did not consider her evidence of loss. That is true but, in the circumstances, I am not satisfied that this is a -- 4 of 5 -- 5 breach of natural justice that justifies leave to appeal. If the learned Adjudicator was correct in his assessment, then he had no reason to consider the evidence about loss. [21] Because the tribunal has not considered Ms Brandies’ evidence about loss, the proceeding should be referred back to the tribunal for hearing. Both parties have filed fresh material in the application for appeal. This material should be before the adjudicator who decides the question of loss. I therefore direct that each party files and serves in Southport MCDT 1342/12 any further material on which they wish to rely by 4:00pm on 5 August 2013. The dispute should be listed for hearing on a date to be advised. [22] The learned Adjudicator cautioned SAS about its practice.6 The evidence suggests that SAS has breached the requirements of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) in a number of respects. These matters warrant further investigation by the Chief Executive Officer. 6 Transcript page 29, lines 5-17. -- 5 of 5 --