Caruana v Harcourts Proactive Results Pty [2011] QCATA 172

CITATION: Caruana v Harcourts Proactive Results Pty Ltd [2011] QCATA 172 PARTIES: Ms Angela Caruana v Harcourts Proactive Results Pty Ltd APPLICATION NUMBER: APL083-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member Peta Stilgoe, Member DELIVERED ON: 13 July 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The proceeding is returned to the tribunal in its minor civil dispute jurisdiction to be determined by another Adjudicator. CATCHWORDS : TENANCY MATTERS – where tenant issued notices to remedy breach – where landlord did not respond to notices – where landlord issued form 12 notice to leave APPEAL – where adjudicator adjourned hearing on practical considerations – where adjudicator declined to consider technical argument – whether adjudicator observed rules of natural justice – where no final decision by the adjudicator - whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 ss3(b), 28(3)(a), 61(1)(c), 62(1) Du Preez v Linda’s Homes Pty Ltd [2010] QCATA 2 -- 1 of 3 -- 2 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION Mr Oliver [1] In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes. Ms Stilgoe [2] Ms Caruana was a tenant in premises managed by Harcourts Proactive Results Pty Ltd. She issued notices to remedy breach in April, July and November 2010, each of them complaining about the condition of the premises. Harcourts did not attend to any of the matters raised by Ms Caruana; instead, on 10 November 2010, it issued a Form 12 notice to leave. [3] Ms Caruana’s application has been adjourned four times. On the last occasion, it was adjourned to the registry. Although Ms Caruana’s application has not been determined, it is apparent from the file that the learned Adjudicator considers the proceedings are at an end. [4] Ms Caruana has appealed the learned Adjudicator’s decision on these grounds: a) Two of her three claims remain undecided. b) The multiple errors of law in the learned Adjudicator’s decision, combined with his refusal to reasonably and sufficiently address Ms Caruana’s application, or evidence, constitute a denial of natural justice. c) The learned Adjudicator did not give reasons for his refusal to address ss291(2) or 185 of the Residential Tenancies and Rooming Accommodation Act 2008. d) Any purported agreement between the parties as to the termination of the tenancy agreement was made after the learned Adjudicator made it clear to Ms Caruana that she had to leave the premises and he would not consider her application. e) There has been no fair and reasonable accounting of Ms Caruana’s loss of amenity. -- 2 of 3 -- 3 [5] In fact, because there has been no decision of the tribunal, save to adjourn the proceeding, there can be no appeal. Pursuant to section 61(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009, I propose to treat the application for leave to appeal as an application to bring the proceeding back on before the tribunal to have it heard and determined. [6] Sadly, there is much force in Ms Caruana’s submissions. The learned Adjudicator has fallen into error by taking a “practical” approach to the issue rather than considering Ms Caruana’s submissions and the relevant law. The learned Adjudicator went so far as to acknowledge that he was not interested in whether Ms Caruana’s argument was technically correct.1 The representative for Ms Caruana specifically drew the learned Adjudicator’s attention to Du Preez v Linda’s Homes Pty Ltd2 but he declined to consider its application to the particular facts. [7] The tribunal’s obligation to deal with matters in a way that is economical, informal and quick3 cannot override the tribunal’s obligation to deal with matters in a way that is fair and observes the rules of natural justice4. The learned Adjudicator has not observed the rules of natural justice and the hearing has not been fair. [8] Ms Caruana has not advised the tribunal as to her current residential status. It may be that she no longer resides in the subject property. That should not be a reason for refusing to allow the dispute to be heard. Ms Caruana has a claim for reduction in rent for loss of amenity. If that claim is successful, then Harcourts may be required to reimburse her. [9] Pursuant to s62(1) of the QCAT Act, the proceeding should be returned to the tribunal’s minor civil disputes jurisdiction for determination by another Adjudicator. 1 Transcript page 3, lines 17-27 2 [2010] QCATA 2 3 Queensland Civil and AdministrativeTribunal Act 2009, s3 (b). 4 Queensland Civil and Administrative Tribunal Act 2009, s28 (3(a). -- 3 of 3 --