Cutbush v Team Maree Property Services [2010] QCATA 9

CITATION: Cutbush v Team Maree Property Services [2010] QCATA 9 PARTIES: Paul CUTBUSH (Applicant) v Team Maree Property Services (Respondent) APPLICATION NUMBER: APL031-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: President DELIVERED ON: 29 April 2010 DELIVERED AT: Brisbane ORDERS MADE: 1 The applicant’s application for leave to appeal is granted. 2 The applicant must file any appeal within twenty-one (21) days. 3 If the applicant files an appeal, the appeal will be heard and determined on the papers, without oral hearing. 4 The applicant will file in registry one (1) copy and deliver to the respondent one (1) copy of his written submissions in support of the application for appeal within seven (7) days of the filing of the appeal. 5 The respondent will file in registry one (1) copy and deliver to the applicant one (1) copy of its written submissions in reply within seven (7) days after receipt of the applicant’s submissions. 6 The decision and the warrant for possession issued in Minor Civil Dispute Number 017-10 on 4 March 2010 in Beaudesert be stayed pending the determination of the appeal. -- 1 of 6 -- 2 7 The said decision and warrant are, in the interim, also stayed until the time for filing an appeal has expired. CATCHWORDS : RESIDENTIAL TENANCIES – TERMINATION OF TENANCY – Residential Tenancies and Rooming Accommodation Act 2008, s 297 – MEANING AND EFFECT – whether tenant’s behaviour was objectionable pursuant to s 297 PROCEDURAL FAIRNESS – RULES OF EVIDENCE – where adjudicator relied on a document containing allegations unrelated to the current proceedings to make an adverse finding against the tenant - whether occasion of procedural unfairness Residential Tenancies and Rooming Accommodation Act 2008, s 297 APPEARANCES and REPRESENTATION (if any): APPLICANT : RESPONDENT: REASONS FOR DECISION [1] In November last year Mr Cutbush and Ms Judith Cutbush took the tenancy of a residential property at 32 Stringybark Rd, Tamborine. The respondent Team Maree Property Services acted as the lessor’s agent. [2] In February this year Ms Maree Leach, describing herself as the agent of Team Maree Property Services, applied to have the Cutbush’s tenancy terminated on the grounds of their objectionable behaviour. [3] The matter came on for hearing before a QCAT adjudicator at Beaudesert on 4 March 2010. Ms Leach appeared as the lessor’s agent although, as she conceded early in the hearing, she was both the principal licensee of Team Maree Property Services and, also the owner of the property. [4] After a lengthy hearing the adjudicator concluded, and gave reasons for his findings, that the tenancy should be terminated from 31 March 2010 because of Mr Cutbush’s objectionable behaviour and ordered that a warrant for possession be issued on 1 April 2010, and expire on 14 April. -- 2 of 6 -- 3 [5] Mr Cutbush applied for leave to appeal against that decision, and for a stay. On 17 March 2010 it was ordered that the decision and the warrant for possession be stayed until 14 days after determination of the application for leave to appeal. By further direction, it was ordered that the application for leave be determined by written submissions, according to a timetable. Both parties have filed and exchanged submissions. [6] Mr Cutbush’s submission is, in short, that there was no evidence upon which the adjudicator could find that his behaviour was objectionable in the sense required by s 297 of Residential Tenancies and Rooming Accommodation Act 2008 (RTRA). That section allows a lessor to apply to this Tribunal for a termination order because the tenant has harassed, intimidated or verbally abused the lessor or lessor’s agent or a person occupying or allowed on premises nearby; or, is causing or has caused a serious nuisance to persons occupying premises nearby. [7] The transcript of the proceedings does not record the duration of the hearing, but is comprised of 85 pages. At the conclusion the adjudicator gave an oral decision, with reasons, of 13 pages. The reasons appear to contain two critical findings: first, that Mr Cutbush had been guilty of objectionable behaviour because he had taken photographs of members of a neighbouring family; and, secondly, because he sought to rely on the contents of a report of a witness he called (a Mr Nicholas) which, the adjudicator said, contained serious but unproven allegations against Ms Leach. [8] It is appropriate to deal with the latter finding first, because it lacks any evidentiary basis. At page 10 of the transcript of the adjudicator’s reasons, he is recorded as saying: ‘…I regard the allegations that are set out in the report of Mr Nicholas of such severity that I consider that those allegations that are made against the applicant, especially when the respondent has no personal knowledge of the content of those matters. Here is a case where he was prepared to make allegations in his own case where another person has made allegations, serious or otherwise. The fact that he was prepared to make those particular allegations in those circumstances to me means that his objectionable behaviour would fall across the line. That is so objectionable that the behaviour justifies terminating the agreement. And I am prepared to make that order.’ (sic) [9] Ms Leach, as the applicant for termination, presented her case first. Then Mr Cutbush gave some evidence, during which he sought to call Mr Nicholas who, Mr Cutbush said, would give evidence showing that Mr Cutbush was not ‘…the objectionable one here’1 . Mr Nicholas began to give evidence of an occasion upon which he visited Mr Cutbush when, he said, he observed himself being videotaped by a neighbour on an adjoining property, and was then screamed at by Ms Leach who was on that property. Commencing at page 1-63 it appears Mr Cutbush then attempted to elicit evidence from Mr Nicholas about Ms Leach’s conduct 1 Transcript 1-59.30 -- 3 of 6 -- 4 as a real estate agent in respect of entirely unrelated matters or transactions, at which point the adjudicator ruled that evidence of that kind was inadmissible, and excused Mr Nicholas. [10] Nothing in the transcript or the bundle of papers which form part of the file relating to these proceedings contains any reference to, or copy of, any report by Mr Nicholas about Ms Leach’s unrelated conduct. The objectionable behaviour upon which the adjudicator appears to have relied was an attempt by Mr Cutbush to call evidence which the adjudicator himself refused to receive. Mr Cutbush’s attempt to call Mr Nicholas occurred in the context of proceedings in which Ms Leach made serious allegations against him, and was attempting to evict him and his family. The conduct upon which the adjudicator relied did not occur before Ms Leach applied for the termination order. While it is not inconceivable that conduct during a hearing might be relevant to a finding about objectionable behaviour under s 297, that finding in the circumstances just described is surprising and, arguably, untenable. On any view serious questions are raised about the basis upon which it was made, and its relevance. [11] The first of the adjudicator’s findings – that Mr Cutbush’s conduct in taking photographs of his neighbours was objectionable – was supported by evidence from both of the two adult persons who lived on the adjoining property with their children. At page 7 of the reasons the adjudicator said, however, of those two witnesses: ‘I must say that the conduct of the neighbours was hardly becoming. Their reputation is certainly not enhanced by their conduct. After receiving copies of the emails, which contain what they say were false assertions, they then swore at, took photographs of, and were generally involved with quite unimpressive behaviour with the neighbour. Even though they’re not involved in this dispute, certainly their conduct is not something they should be proud of.’ [12] The ‘neighbour’ referred to is Mr Cutbush, some of whose emails were introduced into evidence. They commence with messages between Mr Cutbush and Ms Leach in amicable terms but, by early December, they began to feature complaints about the neighbours’ dogs and attempts by Mr Cutbush to keep them off his property by erecting a fence, about which Ms Leach immediately complained. The tone of the emails very quickly descends into strong words principally relating, it appears, to the neighbour’s dogs. It is relevant to this background information that the first email couched in hostile or unpleasant terms was that from Ms Leach to Mr Cutbush of 8 December 2009. [13] The evidence about relations between Mr Cutbush, his neighbours and Ms Leach, the conduct of the neighbours, children and those of the Cutbush family, and the behaviour of the dogs each family kept peppers the transcript. By the time of the hearing relations between Ms Leach and Mr Cutbush were deeply strained, and the hearing was messy, confused and at times incoherent. The adjudicator struggled to maintain control and himself interrupted each of the parties and witnesses on many occasions. -- 4 of 6 -- 5 [14] Nevertheless, the evidence indicated a relatively clear history of the relevant interrelationships: Mr Cutbush, rightly or wrongly, was concerned about the conduct of the neighbours dogs and that they came onto the property he had rented; he put up a fence; Ms Leach was friendly with the neighbours and often visited them; she complained to Mr Cutbush about the fence and, when he responded with complaints about the behaviour of the neighbours dogs she, showed the neighbours those emails. The neighbours took offence and, thereafter, both they and Mr Cutbush appear to have guilty of filming or taking photographs of each other. The adjudicator accepted that the neighbours were equally guilty of conduct of that kind in the passage about their evidence set out earlier. [15] The finding that Mr Cutbush had harassed persons occupying nearby premises is, in those circumstances, a surprising one. Certainly, the evidence left it at least equally open that he had himself been the victim of harassment or intimidation, or verbal abuse (something which was confirmed by witness Nicholas, before he was sent away). [16] To succeed in an appeal Mr Cutbush will be obliged to establish an error on the adjudicator’s part. An error might be established if he can persuade the Appeal Tribunal that the adjudicator’s findings were against the evidence, and the weight of evidence. Subject, of course, to further submissions the findings about his conduct made by the adjudicator exhibit, at least, that possibility. The finding about his conduct in respect of the neighbours might also, arguably, be shown to fall short of conduct caught by s 297 of the RTRA. An error in the application of a statute to particular factual circumstances may also constitute an appellable error. [17] An appeal is, on any view, arguable. The adjudicator’s decision is attended by sufficient doubt to warrant the granting of leave to appeal. [18] The same elements support the continuance of the present order staying the adjudicator’s decision pending the determination of the appeal. [19] Having obtained leave, the applicant must file his appeal (if any) within 21 days: Queensland Civil and Administrative Tribunal Act 2009, s 143(4)(a). It is appropriate to make orders anticipating that event: (1) The applicant’s application for leave to appeal is granted. (2) The applicant must file any appeal within twenty-one (21) days. (3) If the applicant files an appeal, the appeal will be heard and d d d d d d determined on the papers, without oral hearing. (4) The applicant will file in registry one (1) copy and deliver to the respondent one (1) copy of his written submissions in support of the application for appeal within seven (7) days of the filing of the appeal. -- 5 of 6 -- 6 (5) The respondent will file in registry one (1) copy and deliver to the a applicant one (1) copy of its written submissions in reply within seven (( ((7) days after receipt of the applicant’s submissions. (6) The decision and the warrant for possession issued in Minor Civil D D Dispute Number 017-10 on 4 March 2010 in Beaudesert be stayed p p pending the determination of the appeal. (7) The said decision and warrant are, in the interim, also stayed until the time for filing an appeal has expired. [20] On 20 April 2010 Mr Cutbush filed a further application in QCAT Form 40 seeking orders that Ms Leach ‘…desist from contacting my workplace and making spurious and vexatious claims about me as a Tenant to my General Manager and the Minister of Transport’; for a further order to dismiss or strike out the proceedings because Ms Leach ‘…has continued to contact my workplace after the Hearing and make serious allegations against me’; and, for an order that certain named persons in the Office of Fair Trading of the Gold Coast produced documents alleged, apparently, to relate to an investigation of Ms Leach’s affairs. [21] The first and second claims appear to involve an application for injunctive relief and the third to seek evidence which, as the learned adjudicator has already pointed out, appears to bear no relationship to any issue on these proceedings. It is not clear how jurisdiction to grant injunctive relief of the kind sought arises. It may be that in light of the orders made above, Mr Cutbush will not now wish to pursue that relief. If he does, he should provide submissions within seven days and deliver them to Ms Leach. Subject to their contents I will determine whether further orders ought to be made about that application. -- 6 of 6 --