Brecknell v Burton & Deane [2013] QCATA 70

CITATION: Brecknell v Burton & Deane [2013] QCATA 70 PARTIES: Quentin James Brecknell Sherriann Brecknell (Applicants/Appellants) v Paul Burton Rosemaree Deane (Respondents) APPLICATION NUMBER: APL435-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 8 March 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The orders made herein on 19 November 2012 are set aside. 4. The matter is remitted to the Tribunal at Mackay for rehearing by a different Member or Adjudicator, on a date to be fixed and notified to the parties. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where the tenants claimed for refund of overpaid rent – where orders made for tenants in absence of respondent lessors – where lessors’ representative was in the precincts of Tribunal at time of hearing – where lessors’ representative was unaware the matter was being heard and determined – whether denial of natural justice -- 1 of 4 -- 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 (‘QCAT Act’). REASONS FOR DECISION [1] On 5 August 2011, Paul Burton and Rosemaree Deane (‘the Tenants’) entered into a General Tenancy Agreement with Quentin James Brecknell and Sherriann Brecknell (‘the Lessors’) for a property in Mackay. The initial term of the tenancy agreement was due to end on 4 November 2011. No other agreement in writing is in evidence. However, the Tenants continued in occupation, apparently from month to month, until May 2012. [2] On 27 April 2012, the Tenants gave notice of their intention to leave the property on 1 May 2012, and on 28 April 2012 the parties agreed in writing to end the tenancy. [3] On 13 September 2012, the Tenants initiated proceedings in the Tribunal at Mackay. (As Quentin James Brecknell and Sherriann Brecknell appear as co-Lessors in the lease, I have amended the title of the matter accordingly.) [4] The Tenants claimed $605.68 for rent overpaid. Part E of their application also states: Owner [sic] refuses to refund this amount as he wants it for compensation. Compensation is to come from the rental bond not out of rent which was not done. [5] However, no counter application by the Lessors is on record. [6] The matter came on for hearing on 19 November 2012, when the Tenants were awarded the amount claimed, and $55.00 for filing fees. The Member’s manuscript note of his decision records the appearances as follows: For Applicant: ‘Both in person’ - For Respondent: ‘Rebecca Sullivan’. [7] However, the true role of Ms Sullivan is obscure. I shall return to it shortly. [8] The Lessors’ application for leave to appeal, filed on 3 December 2012, alleges that judgment was entered in their absence, notwithstanding their presence in the court precincts at the time appointed for hearing: I [Quentin James Brecknell] attended the Mackay Court on the 19th of November, well before the 2 pm appointment and was not called up to represent myself. I found out at 3.30 pm that the decision was made without my presence. This can be verified by ... my sister, Juanita Brecknell- Shepperson, as they [sic] also attended the court that day for a separate matter. [9] In an affidavit sworn on 15 January 2013 and filed on behalf of the Lessors, Juanita Lynda Shepperson deposes: -- 2 of 4 -- 3 On 19th November 2012, my husband Daryl and I arrived at the Mackay court house at 1.30 pm. My brother Quentin Brecknell arrived at approximately 1.30 pm. Quentin’s matter was also for 2 pm. Julie Lake1 approached Daryl and I at approx 1.45 pm to check our details and to advise us that our tenants would be appearing by telephone. Quentin was sitting with us and was not spoken to. The names of parties were being read out and Daryl and I were ushered into the courtroom at approx 2.15 pm. We returned to where Quentin was still sitting at approx 2.30 pm, after the magistrate adjourned our matter. Daryl and I stayed with Quentin until approx 3 pm. As Daryl and I left the court house, we passed an Elders Real Estate representative congratulating a couple. We were unaware that these persons were parties to Quentin’s court matter. The Elders Real Estate representative did not approach Quentin at any time whilst Daryl and I were there. Quentin’s name was not called at any time I was present. [10] There is no transcript of the proceedings on 19 November 2012, but a dynamically low-level recording on CD is available. The CD is marked ‘1 hr 46m’, but on playing it, one is surprised to find that it lasts for just 1 minute and 46 seconds. It proceeds as follows: Member: I take QCAT claim 204/12 Mr Paul Burton and Ms Rosemaree Deane ... this will be recorded by a mechanical device. Burton: Paul Burton. Sullivan: Rebecca Sullivan. [Pause] [Oaths administered to a female and a male witness.] Member: Take a seat please. [1’ 20”] Now Mr Burton you say they owe you $605? Burton: That’s correct. Member: And you say you’re owed $605? Woman’s Voice: That’s – (interrupted). Member: What are we here for? Woman’s Voice: We just want an order so that we ... (indecipherable). Member: Anything further to say? Woman’s Voice: No. Member: I order that the Respondent pay to the Applicant the sum of $605 plus $55. Thank you. Woman’s Voice: Thank you. [Recording ends at 1 minute 46 seconds] [11] In the time lapse of less than 2 minutes (of which 26 seconds record the actual decision) not a word was heard on behalf of the Lessors, although 1 Presumably a member of the court staff. -- 3 of 4 -- 4 according to Ms Shepperson, whose uncontradicted evidence I accept, the Lessor, Quentin Brecknell, was in the precincts of the court, waiting to be called in and heard. No appearance by him was noted by the presiding Member. No inquiry as to his whereabouts is recorded. [12] As already noted, Rebecca Sullivan is recorded as appearing for the Lessors. If that is correct, she was a remarkably taciturn advocate. However, the probability is that she did not appear for the Lessors, but attended in support of the Tenants. It is also likely that she is the ‘Elders Real Estate representative’ twice mentioned in Juanita Shepperson’s affidavit. In the lease, the address for service of the Lessors is given as ‘c/- Elders Real Estate Mackay’. In a recent public advertisement for Elders, a Rebecca Sullivan is presented as Property Manager for that firm. [13] But be that as it may, I am satisfied that, due to some mistake that the available evidence cannot explain, the Lessors were denied an opportunity to be heard, despite the fact that Mr Brecknell was at the court house, ready and willing to appear in person. There is no suggestion that he is an experienced litigant. He heard other parties called and ushered into the courtroom. He reasonably expected that similar procedures would follow when it was time for his case to be heard. [14] It inevitably follows that leave to appeal must be granted, the appeal allowed, the orders made herein on 19 November 2012 set aside, and the matter remitted to the Tribunal at Mackay for hearing by a different Member or Adjudicator. ORDERS 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The orders made herein on 19 November 2012 are set aside. 4. The matter is remitted to the Tribunal at Mackay for rehearing by a different Member or Adjudicator, on a date to be fixed and notified to the parties. -- 4 of 4 --