Coleman v Dolman [2011] QCATA 47

CITATION: Coleman v Dolman [2011] QCATA 47 PARTIES: Trevor Allan Coleman (Applicant/appellant) v Nienke Dolman (Respondent) APPLICATION NUMBER: APL119-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 4 March 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. Decision of 22 June 2010 set aside. 4. The respondent shall pay the applicant $16,200 within 14 days. CATCHWORDS: RESIDENTIAL TENANCY – where tenant entered into possession pursuant to “private agreement” – where tenant held over – where parties executed Form 18a – where tenant paid no rent for 12 months – where termination order made – where compensation order made for period of tenancy covered by the Form 18a only – whether lessor can recover all of rental arrears Queensland Civil and Administrative Tribunal Act 2009, s 142(3) Residential Tenancies and Rooming Accommodation Act 2008, ss 12, 53, 70 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). -- 1 of 4 -- 2 REASONS FOR DECISION [1] Ms Dolman was the tenant in a residential property owned by Mr Coleman. She took possession of the property in June 2008. The parties signed a document called “Terms of Renting Property…” which detailed the amount of the bond, the rent, maintenance requirements and that it was a “six month lease starting Monday 13/07/08” (the first agreement). The rent payable was $300 per week. [2] Ms Dolman remained in possession of the property at the end of that period and, on 24 November 2009, the parties signed a tenancy agreement in a form promulgated under the legislation governing residential tenancies (Form 18a). The term of the tenancy was expressed to be from 22 November 2009 to 22 May 2010 (the second agreement); again, the agreement described the maintenance requirements and the rent was expressed to be $300 per week. [3] Ms Dolman stopped paying rent around April 2009. Mr Coleman filed an application in QCAT seeking termination of the tenancy and compensation. On 13 April 2010, the Tribunal terminated the tenancy and authorised a warrant of possession to issue. [4] Mr Coleman’s claim for compensation, including arrears of rent in the sum of $15,600, came on for hearing before a Magistrate, sitting as an ordinary Member of QCAT, 1 on 22 June 2010. Mr Coleman was represented by his wife, Mrs Coleman. The learned Magistrate ordered that Ms Dolman pay Mr Coleman 21 weeks rent, in the sum of $6,300, plus cleaning costs of $600. [5] Mr Coleman wishes to challenge the learned Magistrate’s decision. He asks the Appeal Tribunal to order that Ms Dolman pay all of the rent arrears, plus the cleaning costs. [6] Because this is an appeal from a Minor Civil Dispute, leave is necessary: s 142(3), QCAT Act. [7] It is clear from the transcript that the learned Magistrate would not allow Mr Coleman compensation for any rent owing prior to 22 November 2009, the apparent commencement date of the second agreement:2 Now I may not be with you, Mrs Coleman, as far as your claim for outstanding rent, because I don’t have any other tenancy agreement and the claim before the Court for determination was for the period 22 November ’09 to 22 May 2010 so I’m only looking at that period, not anything before it. [8] The learned Magistrate did have a copy of the earlier document called “Terms of Renting Property…” because Mr Coleman had provided it to the Tribunal when he filed his application. During the hearing, 1 QCAT Act, s 171(2). 2 Transcript, page 12. -- 2 of 4 -- 3 Mrs Coleman referred the learned Magistrate to that document 3 but spoke of it as a “private agreement” and appeared to accept that it was not a “tenancy agreement” – that is, she spoke in terms which suggested that she believed the former may lack the legal force and effect of the latter. [9] Section 12 of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA Act) provides that a residential tenancy agreement is an agreement under which a person gives to someone else a right to occupy residential premises as a residence. It does not matter whether the agreement is in writing or oral and, importantly for the purposes of this appeal, it does not matter that the agreement is not in accordance with Form 18a. [10] To ensure that, so far as possible, all parties are protected by the regulatory regime of the Act, s 53 of the RTRA prohibits contracting out of the consequences of the Act. The effect of s 53 is that the RTRA Act does not distinguish between a “private agreement”, and some other form of tenancy agreement. [11] There is no doubt that Ms Dolman was given a right to occupy, and did in fact occupy, the premises in June 2008. That is enough to constitute a residential tenancy agreement under s 12 of the RTRA Act. [12] Anything that occurs after that date is regulated by the Act, which is intended to be a comprehensive code for the rights and obligations of tenants and lessors. 4 It is evident from a consideration of the Act as a whole that the common law rules of contract are modified substantially. Therefore, while there may be two documents that purport to be tenancy agreements, there is only one residential tenancy agreement and any “tenancy agreement” that is produced is no more than evidence in writing of the tenancy agreement already established. [13] I note Mr Coleman’s reference, in submissions, to Residential Tenancies and Rooming Regulation 2009 sch 4 number 5. That document refers to rooming accommodation agreements; the agreement between Mr Coleman and Ms Dolman was a residential tenancy agreement, not a rooming accommodation agreement. Nevertheless, s 70 of the RTRA Act has the same effect and is a vivid illustration of the way in which the Act operates to modify the common law. [14] At the hearing, Mrs Coleman consistently gave evidence that: Ms Dolman paid rent up until 13 April 2009; she paid nothing after that; and Ms Dolman was, therefore, 12 months behind in her rent at the time of the termination order.5 Mrs Coleman produced her diary, which recorded Ms Dolman’s payment history. The Magistrate accepted the diary as sufficient evidence that Ms Dolman had not paid rent for the period 22 November 2009 to the date of termination. There is no reason why it 3 Transcript, page 3. 4 RTRA Act, ss 5(1)(a) and 5(2)(a). 5 Transcript, pages 5, 6, 11, 12. -- 3 of 4 -- 4 should not also have been sufficient evidence of Ms Dolman’s payment history from July 2008 to November 2009. [15] The claim before the learned Magistrate was not expressly limited to a claim for the period 22 November 2009 to the date of termination but that was, in fact, how he limited his decision. [16] As the analysis above shows, however, there was no legal basis for that limitation; and there was factual evidence that a much larger amount was, in truth, owed by the tenant. [17] The learned Magistrate may have been led into error by two things: first, Mrs Coleman’s characterisation of the first agreement as a “private agreement”, leading the Tribunal to the view that it was, for some reason, unenforceable; and the fact that the proceedings under appeal were adjourned from an earlier application to terminate the tenancy agreement, at which hearing it appears that all parties were acting on the assumption that the termination related to the tenancy evidenced by the Form 18a. [18] It was, for the reasons set out above, open to the learned Magistrate to consider the claim for rental arrears for the whole period of Ms Dolman’s occupation and there was sufficient evidence for him to find that rent payments, in the full amount claimed, were still owing. The failure of the Tribunal to do so involved errors of law: a failure to appreciate that the “private agreement” evidenced an enforceable tenancy agreement; and, that payment of arrears for the entire period could properly be ordered. [19] Leave to appeal should be granted, and the appeal allowed. The decision of the learned Magistrate is set aside and Ms Dolman is ordered to pay $16,200, being $15,600 for rental arrears and $600 for cleaning costs, to Mr Coleman within fourteen days. -- 4 of 4 --