Canendo v Biddi Biddi Advancement Co-op Society Ltd [2012] QCATA 103

CITATION: Canendo v Biddi Biddi Advancement Co-op Society Ltd [2012] QCATA 103 PARTIES: Yvonne Canendo (Applicant/Appellant) v Biddi Biddi Advancement Co-op Society Ltd (Respondent) APPLICATION NUMBER: APL004-12 MATTER TYPE: Appeals HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham, Deputy President DELIVERED ON: 28 May 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Ms Canendo’s application for leave to appeal is dismissed. 2. The decision will take effect one month from the date of this order. CATCHWORDS: APPEAL – LEAVE TO APPEAL – RESIDENTIAL TENANCY – where a tenant was expelled from a co-operative – where membership of the co- operative is a requirement of tenancy agreement – where the tenant made an application to set a side a notice to leave under section 292 of the Residential Tenancy and Rooming Accommodation Act 2008 – where the tenant claims that her legal representative did not properly present her submissions – whether there has been a denial of natural justice – whether the application has any reasonable prospect of success APPLICATION TO STAY A DECISION UNDER APPEAL – whether the tenant had an arguable ground for granting leave to appeal Co-operatives Act 1997, s 131 Legal Profession (Solicitors) Rule 2007, rule 12.2 Queensland Civil and Administrative Tribunal Act 2009, ss 32, 127 -- 1 of 6 -- 2 Residential Tenancies and Rooming Accommodation Act 2008, ss 291(1), 291(3), 292, 293 Cachia v Grech [2009] NSWCA 232 Du Preez v Linda’s Homes Pty Ltd [2010] QCATA 2 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Lindeberg v Kalwun Development Corporation Ltd [2011] QCAT 287 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] These proceedings involve a dispute about Ms Canendo’s tenancy of a property in Malanda owned by the Biddi Biddi Advancement Co-op Society Ltd. Underlying that dispute is a disagreement between the parties about Ms Canendo’s membership of the Co-op. The link between the two disputes is that the residential tenancy agreement contained a special condition that required the tenant to be a member of the Co-op throughout the term of the tenancy. Because of a dispute unrelated to Ms Canendo’s tenancy of the property, the Co-op terminated her membership, by resolution passed at a Special General Meeting of the Members of the Co- op held on 29 April 2011. Ms Canendo has not commenced proceedings to review the Co-op’s decision, a matter that would have to be brought before the Supreme Court of Queensland1. [2] On 20 December 2011, a Magistrate, acting in his capacity as a member of QCAT, terminated the tenancy and issued a warrant for possession of the property. Ms Canendo applied for leave to appeal the decision. QCAT stayed the decision, pending determination of Ms Canendo’s application for leave to appeal. The Co-op requested reasons for the stay. They appear at the end of these reasons for the decision on Ms Canendo’s application for leave to appeal. Reasons for refusing the application for leave to appeal [3] The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably 1 The Co-op is an association formed under the Co-operatives Act 1997 (Qld). Under s 131 of that Act, the Supreme Court can make an order to reinstate a member’s membership if satisfied the cancellation was unreasonable. -- 2 of 6 -- 3 arguable case of error in the primary decision?2 Is there a reasonable prospect that the applicant will obtain substantive relief?3 Is leave necessary to correct a substantial injustice to the applicant caused by some error?4 Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?5 [4] In this case, I am not persuaded that there is a reasonable prospect that Ms Canendo will obtain substantive relief if the decision is set aside and the matter is reheard. [5] At a meeting held on 5 May 2011, a Special Board Meeting of the Co-op resolved to terminate Ms Canendo’s tenancy of the property. It issued a Notice to Leave, relying on a small rental arrears and the fact that Ms Canendo was no longer a member of the Co-op. That Notice provided a handover period that expired on 9 September 2011. With the consent of the Co-op, an application to terminate the tenancy based on that Notice was dismissed by the learned Magistrate, who considered the Notice was defective. [6] On 6 October 2011, the Co-op issued a Notice to Leave without grounds6, which provided for a handover date of 12 December. Ms Canendo applied to set the Notice aside alleging it constituted the Co-op, as the landlord, taking retaliatory action against her, as the tenant7. [7] Throughout the proceedings, Ms Canendo was represented by a solicitor from the Aboriginal and Torres Strait Islander Legal Service. [8] Ms Canendo’s application was mentioned before his Honour on 22 November 2011. He adjourned it, by consent, to 13 December 2011, so Ms Canendo could apply to the Supreme Court to challenge her expulsion from the Co-op. [9] On 13 December, Ms Canendo’s application to set aside the Notice was mentioned before the learned Magistrate. Her solicitor informed his Honour that Ms Canendo had been unsuccessful in securing funds to make an application to the Supreme Court and that he had instructions to withdraw the application. Having heard from the solicitor, the learned Magistrate dismissed Ms Canendo’s application. [10] The solicitor for the Co-op mentioned an application by the Co-op to terminate the tenancy and asked that his Honour determine it then and there. The Co-op had just filed the application that morning, returnable the same day. The solicitor explained that it could not do so earlier, as the 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232 at 2. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 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. 6 Residential Tenancies and Rooming Accommodation Act 2008, s 291(1). 7 Residential Tenancies and Rooming Accommodation Act 2008, ss 291(3), 292 -- 3 of 6 -- 4 handover period expired on 12 December, and the Co-op could not apply to terminate the tenancy before then8. [11] The solicitor for Ms Canendo confirmed she was aware of the application and the likely outcome. It seems that the action taken by the Co-op on the 13th had been the subject of discussion between the representatives at the November mention. Ms Canendo’s solicitor asked for a date of possession some time between Christmas and New Year. [12] Although the solicitors agreed the matter could be dealt with on the 13th, his Honour was concerned about proceeding in the absence of Ms Canendo on an application filed only that day. Accordingly, he adjourned the application for one week. [13] When the matter came back before him on 20 December, Ms Canendo’s lawyer did not oppose the application and his Honour made final orders terminating the tenancy. [14] There has been, and could be, no complaint about the manner in which his Honour proceeded in this matter. He was cautious in the face of an application brought on at short notice and acted, as he was entitled to do, on the assurances of the solicitors on the record. Even with those assurances, he deferred the final hearing to allow Ms Canendo some more time to get her affairs in order. [15] Ms Canendo’s application for leave to appeal raises an argument that she was denied natural justice, because her solicitor made no defence on her behalf. She has not stated what instructions she gave to her solicitor. Her submissions fall short of alleging he acted contrary to her instructions. Had he done so, this would constitute a serious breach of his professional ethics9. Rather, Ms Canendo’s case seems to be that she misunderstood the effect of her discussions with her solicitor and, therefore his instructions. [16] Ms Canendo was, for a period, the Chairperson of the Co-op. Her submissions suggest that, while she is not a sophisticated litigant, she does have a reasonable understanding of legal process. Nevertheless, lawyers must be vigilant to ensure they obtain clear instructions and that their client understands the effect of the instructions being acted upon. In this case, there may be cultural factors that affected Ms Canendo’s understanding of their discussions, although one might expect that a lawyer employed by ATSILS would be cognizant of this factor and take care to ensure he was understood. The Tribunal has proceeded on these assumptions: the solicitor considered his instructions were clear (that appears from what he said during the hearing, which was recorded); and Ms Canendo may not have fully appreciated the effect of those instructions in relation to her tenancy (that is consistent with her submissions). [17] A misunderstanding about the effect of a tenant’s instructions to their solicitor, which denied that tenant an opportunity to defend termination proceedings, could well justify the Appeal Tribunal granting the tenant leave to appeal. 8 Residential Tenancies and Rooming Accommodation Act 2008, s 293. 9 Legal Profession (Solicitors) Rule 2007, rule 12.2. -- 4 of 6 -- 5 [18] In this case, the Appeal Tribunal has declined to grant leave, because Ms Canendo has few prospects of succeeding in her claim that the Notice to Leave constituted a retaliatory action. [19] The parties’ submissions contain allegations and counter-allegations about the circumstances in which the members of the Co-op terminated Ms Canendo’s membership. There was no evidence given about these matters before his Honour, as the parties’ solicitors, correctly, concluded the Supreme Court was the appropriate forum to review the decisions to cancel Ms Canendo’s membership. [20] Ms Canendo has a statutory basis for relief, if the decision to cancel her membership was unreasonable. The Co-op, properly, fully documented the cancellation process. The Notice of Special General Meeting, written by the Vice Chair, was sent to Ms Canendo more than a month before the meeting was held. It was clear and specific about the conduct that the Board would rely on to move a resolution to cancel her membership. She was afforded the opportunity to participate in the meeting. After the meeting, she was sent written notice of the outcome. The steps taken by the Co-op seem to conform with the requirements of the Co-operatives Act 1997 and provide a starting point for any contest about the reasonableness or otherwise of the decision. [21] There is a factual link between Ms Canendo’s expulsion from the Co-op and the termination proceedings, because membership is a condition of the tenancy. This does not mean that the Notice to Leave without grounds can be said to be retaliatory. It necessarily followed Ms Canendo’s expulsion. However, Ms Canendo’s membership was cancelled following the process required by the Co-operatives Act 1997. [22] The Board based its action on serious allegations about Ms Canendo’s conduct as a Board member, that were accepted by the Members at the Special General Meeting. It is neither appropriate, nor necessary, for the Appeal Tribunal to form a view on the merits of that dispute. What is relevant is whether the Notice to Leave can be seen as a retaliatory action against Ms Canendo. [23] There is no cogent evidence to suggest that the Board’s action in taking the matter to a Special General Meeting was improperly motivated or was some ruse in order to justify her eviction. Rather, it presents as a dispute between Ms Canendo and members of the Board, both with strongly held views about the relevant events. [24] The chronology of events after the Co-op expelled Ms Canendo does not suggest it was unreasonable, excessive or vindictive in taking action to terminate the tenancy10. When Ms Canendo applied to set aside the Notice to Leave, the Co-op consented to an adjournment of her application so she might commence proceedings in relation to her membership in the proper forum. She did not do so, even though this was then some 8 months after the decision. Given that, the history of the tenancy proceedings leaves little 10 Du Preez v Linda’s Homes Pty Ltd [2010] QCATA 2 at 17. -- 5 of 6 -- 6 prospect that Ms Canendo will succeed in establishing the Notice to Leave was retaliatory.11 [25] Even if Ms Canendo did not understand that withdrawing her application to set the Notice aside would leave her without a defence to termination orders, her poor prospects of succeeding to set aside the Notice to Leave means that leave to appeal should not be granted. Reasons for granting the stay [26] The Appeal Tribunal granted the stay of the orders made by the learned Magistrate pending determination of the application for leave to appeal, for the reasons that include the matters set out in paragraphs [8] to [17]. [27] Although ultimately not successful, Ms Canendo raised an arguable ground for granting leave to appeal. She is an older woman, lives with her disabled son and has lived in the property for many years. [28] In those circumstances, the Appeal Tribunal exercised its discretion to stay the decision under appeal, pending determination of the application for leave. [29] Her personal circumstances, and the difficulties she may well experience in organising alternative accommodation in a small rural community, support further latitude. The Appeal Tribunal will order that the decision will not take effect for one month12. This means the stay order will remain in effect until then and Ms Canendo will have that month to find alternative accommodation. Orders [1] Ms Canendo’s application for leave to appeal is dismissed. [2] The decision will take effect one month from the date of this order. 11 The factual circumstances of this case are quite different to those in Lindeberg v Kalwun Development Corporation Ltd [2011] QCAT 287, to which the Appeal Tribunal was referred. 12 Queensland Civil and Administrative Tribunal Act 2009, s 127. -- 6 of 6 --