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  • Unreported Judgment

Excell Ventures Pty. Ltd. v Cannon & Anor

 

[2016] QCAT 346

CITATION:

Excell Ventures Pty Ltd v Cannon & Anor [2016] QCAT 346

PARTIES:

John Saunders Director Excell Ventures Pty Ltd ACN 050 408 412 Property Owner

(Applicant)

v

Peter Cannon

Cheryl Pearson

(Respondent)

APPLICATION NUMBER:

MCDT112-16

MATTER TYPE:

Residential tenancy matters

HEARING DATE:

2 August 2016

HEARD AT:

Coolangatta

DECISION OF:

Adjudicator Alan Walsh

DELIVERED ON:

28 September 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The Residential Tenancy Agreement between the parties be terminated as from midnight on 31 October 2016 on the grounds of failure to leave.
  2. A Warrant of Possession to issue authorising a police officer to enter the premises of 16B Tomewin Street, Currumbin, QLD 4223.
  3. The Warrant of Possession shall take effect on 1 November 2016 and remain in effect for 14 days, to expire on 14 November 2016.
  4. The Warrant of Possession be executed as soon as is reasonably practicable after taking effect.
  5. Entry under the warrant shall only be between the hours of 8:00am and 6:00pm.

CATCHWORDS:

LANDLORD AND TENANT – LEASES AND TENANCY AGREEMENTS – FORMAL VALIDITY - where agreement with tenant oral and in writing for fixed term – where option to renew not exercised - where owner not named as lessor – whether resultant invalidity of lease – where tenancy became periodic – whether agreement varied orally to include second tenant – where owner estopped from denying co-tenancy – where owner ratified co-tenancy

LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION - where original legislation repealed – where replacement legislation applied – whether periodic lease continued under transitional provisions

LANDLORD AND TENANT – TERMINATION OF THE TENANCY – BY NOTICE TO QUIT – VALIDITY - where tenants requested all communication by email - where notice to leave without ground naming both tenants served by email – where retaliation asserted by tenants – where tenants did not apply to set aside notice to leave for retaliation - where terms and conditions of periodic lease did not provide for email service – whether effective service by email - where tenants estopped from asserting service by email ineffective – where termination application properly grounded – whether and when tenancy should be terminated

Acts Interpretation Act 1954 (Qld) s 39

Electronic Transactions (Queensland) Act 2001 (Qld) s 24

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 13, s 28

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 12, s 27, s 292, s 329, s 341, s 543

Residential Tenancies and Rooming Accommodation Regulation 2009 (Qld) s 2

Residential Tenancies Act 1994 (Qld) s 8, s 17, s 38, s 46

Residential Tenancies Amendment Regulation (No. 1) 1998 (Qld) s 5, s 12

Property Law Act 1974 (Qld)  not applicable

Pico Holdings Inc v Wave Vistas P/L & Anor [2003] QCA 204

Air Tahiti Nui Pty Ltd v McKenzie (2009) NSWCA 429

QBSA v J M Kelly (Project Builders) Pty Ltd [2013] QCA 320

APPEARANCES:

APPLICANT:

Mr J Saunders, Director

RESPONDENT:

Mr P Cannon and Ms C Pearson

REASONS FOR DECISION

Introduction

  1. [1]
    The Applicant, Excell Ventures Pty Ltd (‘Excell’), applies for a residential tenancy termination order and a warrant of possession for eviction of the Respondents Peter Cannon (‘Mr Cannon’) and Cheryl Pearson (‘Ms Pearson’) from a property at Tomewin Street, Currumbin on the Queensland Gold Coast for failure to leave on notice without ground.
  2. [2]
    Documents to which I refer and have had regard[1] in coming to a decision in this case have variously been filed by the parties in the present Application 112/16 and in the prior unsuccessful Application 26/16[2] of Excell against Mr Cannon and Mrs Pearson for similar orders.
  3. [3]
    Unless otherwise indicated, transcript references in this case are to official transcript of the hearing on 2 August 2016.

Dismissal of Earlier Application

  1. [4]
    I dismissed Application 26/16 because Excell had given less than the prerequisite two months notice without ground to leave the tenanted property.[3] Also, the notice was itself invalid because the period between date of issue and expiry was short of two months by several days.
  2. [5]
    Excell’s notice to leave without ground in the present case does not suffer from the same temporal defect which the first did.

Issues

  1. [6]
    The issues in this case are whether:
    1. a residential tenancy subsists;
    2. the tenancy is periodic;
    3. a valid Form 12 Notice to Leave issued;
    4. at least two months’ notice to the tenants to leave was given; and
    5. the tenancy should be terminated for their failure to leave.

Facts

Excell Ventures Pty Ltd

  1. [7]
    Excell is an Australian company duly incorporated and was registered on 9 November 1990 in Queensland.[4] John Saunders (‘Mr Saunders’) has been its sole director since 12 September 1996 and was originally appointed on 25 April 1991.[5]

The Registered Owner

  1. [8]
    Excell became registered owner of freehold Title to the property described as Lot 9 on Registered Plan 1983, Local Government: Gold Coast (‘the property’) pursuant to a transfer lodged on 27 January 1995 as appears from an Historical Title Search[6] filed with the Tribunal in the first Application.

Of 16 Tomewin Street, Currumbin

  1. [9]
    The property is at 16 Tomewin Street, Currumbin, Queensland 4223 on which there are several dwelling units.

With Dwelling Units on the Property

  1. [10]
    The dwelling units on the property are numbered 16A, 16B and 16C respectively. Mr Saunders’ mother lives in unit 16C.[7]
  2. [11]
    Unit 16B, in which Mr Cannon and Ms Pearson now reside, consists of one room including a shower and toilet.[8] It is outwardly a continuation of unit 16A rented to a Mr Moore but the units are separated internally.[9]

Leased Unit 16B to Ms Pearson in 2005

  1. [12]
    The dispute in this case arises out of a lease to Ms Pearson of Unit 16B in 2005.
  2. [13]
    Ms Pearson took occupation of Unit 16B on the property in December 2005 pursuant to a Form 18a General Tenancy Agreement[10] (‘the lease’) which she signed under her then married name, Mason, on 14 December 2005, also signed by Mr Saunders.
  3. [14]
    The lease, the existence of which was admitted by Ms Pearson,[11]  comprised only two pages[12] and was for a term which commenced on 12 December 2005 ending on 12 December 2006 with ‘an option to renew’ for a year.
  4. [15]
    Ms Pearson has continuously resided in Unit 16B for a period of almost 11 years paying rent under the lease throughout[13] though, since April 2012, jointly with Mr Cannon.

Written Lease Incomplete

  1. [16]
    The lease is incomplete.
  2. [17]
    The standard form tenancy agreement was prescribed by legislation applying as at December 2005 and included the terms and conditions which apply to the lease in this case by operation of law.[14]
  3. [18]
    I informed myself of the existence and content of the standard form tenancy as at December 2005 of my own motion by internet search during the course of the hearing as is permitted.[15]
  4. [19]
    The parties were given a sample copy of a substantially similar document (Exhibit T1) at the hearing.
  5. [20]
    Items 6 to 8 on the first page of the standard lease provide for the insertion of essential rental information, i.e. the agreed rental amount, whether payable weekly, fortnightly or monthly, and the date and the method of each payment, but were left blank in the lease by the parties.

Rental Orally Agreed

  1. [21]
    The essential rental information was, however, orally agreed between Mr Saunders and Ms Pearson (then Mason) at the time of signing the lease in 2005, i.e. $120.00 per week payable monthly in advance.
  2. [22]
    The periods for which rent was paid are recorded by Mr Saunders in two handwritten pages filed in Application 26/16 from 16 January 2005 to 8 November 2015 and also on the back of a NAB envelope for the period 9 November 2015 to 19 September 2016.[16]

Lease Invalidity Asserted

  1. [23]
    Mr Cannon, a retired lawyer,[17] asserts that the 2005 lease, which Ms Pearson signed, is invalid because it was ‘...just signed by Mr Saunders and did not name the registered owner.[18] 
  2. [24]
    I do not accept that the lease was invalid for want of naming Excell.
  3. [25]
    Firstly, Mr Saunders signed the lease on the second page beneath the words ‘Signed by the lessor/lessor’s agent.’ An inference of agency, albeit that the principal’s identity is undisclosed, is open because the words ‘lessor’s agent’ were not struck through or deleted.
  4. [26]
    Secondly, though it is true that Mr Saunders is also described further down on the page and also on the first page in item 1 as Lessor, he is not a lawyer who would appreciate the legal distinction and he explained in evidence that he normally just signed as Saunders but was sole director of the Excell.[19] 
  5. [27]
    Thirdly, it is common cause that Excell, not Mr Saunders, was the owner of the property at all material times and still is.
  6. [28]
    I may have regard to the extrinsic evidence[20] and the surrounding circumstances, as I have, in identifying the relevant contracting party, where, as in this case, there was a contract of lease and undoubtedly still is.[21] 
  7. [29]
    The extrinsic evidence and surrounding circumstances, to which I have referred, permit the finding that Mr Saunders signed the 2005 lease as agent for Excell, the then undisclosed principal, and I find that to be the case.

Tenancy Legislation Applying In 2005

  1. [30]
    The legislation which regulated the lease in December 2005 was the Residential Tenancies Act 1994 No.86 (Qld) (‘the old Act’) and the Residential Tenancies Amendment Regulation (No.1) 1998 (‘the old regulation’) which prescribed standard residential tenancy agreement form and content.[22]

As To Service Of Notices

  1. [31]
    In its prescribed standard version[23] as at December 2005, clause 45 of the lease referred to permissible means of service of notices as including ‘being left at, or being mailed or sent by facsimile transmission to, the tenancy address.
  2. [32]
    Email was neither mentioned nor excluded in the lease as a means of service. That is unsurprising because email was not as widely used then as it is now and legislation had not yet recognised the medium.

As To Documentary Form And Content

  1. [33]
    Section 39 of the old Act required that a residential tenancy agreement be in writing and include all essential terms, the breach of which could attract a pecuniary penalty. 
  2. [34]
    Excell, by its director Mr Saunders, apparently breached the requirement in the respects to which I have referred, however this Tribunal has no jurisdiction in minor civil disputes to adjudicate the prosecution of a disciplinary charge and impose the penalty.

As To Whether Non Compliance Invalidatory

  1. [35]
    Section 39 of the old Act did not purport to invalidate a residential tenancy agreement that was partly oral and partly in writing where the combination covered all the essential terms.
  2. [36]
    Automatic invalidation of a lease for breach would leave a tenant without remedy in an era of consumer protection which, in the absence of express language to that effect, cannot have been the Legislature’s intention.
  3. [37]
    I therefore find that Excell’s breach of s 39 of the old Act did not invalidate the lease.

Periodic Tenancy from 13 December 2006

  1. [38]
    There is no suggestion that the option for renewal of the tenancy was exercised so Ms Pearson’s tenancy became monthly periodic from 13 December 2006 onwards pursuant to the provisions of the old Act.[24]

Repeal And Replacement of Residential Tenancies Act No. 86 (Qld)

  1. [39]
    The Residential Tenancies Act 1994 No.86 (Qld) was repealed on 30 June 2009 by operation of s 528 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘the new Act’) which commenced on 1 July 2009 by proclamation.
  2. [40]
    The Residential Tenancies and Rooming Accommodation Regulation 2009 (‘the new Regulation’) also commenced on 1 July 2009 by operation of section 2 of the Regulation replacing its 1998 predecessor.

Crossover Provisions

  1. [41]
    Under both the old and new Act, a residential tenancy agreement is one under which a person gives to someone else a right to occupy residential premises as a residence.[25] 
  2. [42]
    By s 17 of the old Act and s 27 of the new Act, the provisions of the Property Law Act 1974 (Qld) do not apply to a residential tenancy agreement.
  3. [43]
    The transitional provisions of the new Act provide that a residential tenancy agreement subsisting at the time of repeal of the old Act is taken to have continued under the new Act and the provisions of the new Act apply to it.[26]
  4. [44]
    That is the case here.

The Periodic Tenancy Continued

  1. [45]
    Ms Pearson’s periodic tenancy of Unit 16B under the old Act therefore continued on under the new Act without alteration of content but the provisions of the new Act regulate the process by which the lease may now be ended.

No New Written Agreement Required

  1. [46]
    Section 543(3) of the new Act provides that the parties to an existing agreement do not have to enter into a new written agreement. Consequently, no new written agreement was entered into in this case.
  2. [47]
    The new Act differs from its predecessor in providing that the definition applies whether the agreement is wholly in writing, wholly oral, or wholly implied.[27] The old Act did not say so expressly.

Cannon Co-Tenancy From April 2012

  1. [48]
    Mr Cannon says that he moved into Unit 16B with Ms Pearson and, in doing so, became a tenant in March 2012,[28] however that assertion mistakenly conflates occupancy with tenancy.
  2. [49]
    Nevertheless, though by a different process, I find that Mr Cannon did became a co-tenant together with Ms Pearson in terms of the ongoing periodic lease[29] in April 2012 having regard to the following.

The Co-Tenancy Agreement

  1. [50]
    Ms Pearson had a discussion with Mr Saunders at the property on 10 April 2012[30] to which Mr Cannon was not privy but with his approval.[31]
  2. [51]
    Ms Pearson told Mr Saunders that she was delighted to announce that Mr Cannon would be joining her and moving in and that they (she and Mr Cannon) would be co-tenants.
  3. [52]
    This unilateral statement could not, without more, create contractual relations, however the gist of the discussion seems to me to have amounted in other words to an offer of Mr Cannon’s co-tenancy with her which was capable of acceptance.
  4. [53]
    Ms Pearson says that Mr Saunders nodded acceptance in response and then walked away.
  5. [54]
    I find that, by nodding assent, Mr Saunders accepted Ms Pearson’s oral offer of Mr Cannon’s co-tenancy. In consideration, upon the acceptance, Excell could henceforth look to Mr Cannon as co-tenant jointly and severally with Ms Pearson to pay rent.

Varying The Periodic Lease

  1. [55]
    The ongoing periodic lease of Unit 16B to Ms Pearson was thereby orally varied to include Mr Cannon as co-tenant but only to that extent.
  2. [56]
    There is no suggestion in the evidence that Ms Pearson discussed a new lease for herself and Mr Cannon with Mr Saunders or any change to the terms and conditions of the lease which continued to apply.
  3. [57]
    Mr Saunders cannot recall the discussion. He denies the variation[32] but Ms Pearson’s positive recollection,[33] which I accept, prevails against the denial in the circumstances.

Estoppel and Ratification

  1. [58]
    Mr Cannon’s co-tenancy also stands by estoppel against Excell for the following reasons.
  2. [59]
    Firstly, Mr Saunders, Excell’s director, acquiesced in the co-tenancy.
  3. [60]
    Secondly, Excell’s Form 12 Notice to Leave, to which I will shortly refer, names both Ms Pearson and Mr Cannon as tenants, consistently with their joint tenancy from 10 April 2012 under the periodic lease by the oral agreement reached that day.
  4. [61]
    Thirdly, estoppel aside, by naming both Ms Pearson and Mr Cannon as tenants in the Form 12 Notice to Leave, Excell ratified the oral agreement of Mr Cannon’s co-tenancy.

Form 12 Notice To Leave Without Ground

  1. [62]
    Giving tenants a valid two-month Form 12 Notice to Leave without ground to end a periodic lease is part of the process by which a tenancy can be ended under the new Act as it applies in this case.
  2. [63]
    A lease ends automatically if the tenants leave but an application must  be filed with the Tribunal for a termination order within two weeks of expiry of the Notice if they do not. The Tribunal may order termination of the lease on the ground of failure to leave.

Issued by Excell

  1. [64]
    A Form 12 Notice to Leave without ground signed by Mr Saunders on Excell’s behalf issued on 29 April 2016 by email to Ms Pearson and Mr Cannon requiring that they vacate the property by midnight on 1 July 2016.
  2. [65]
    Mr Cannon and Ms Pearson didn’t leave. That opened the way for Excell’s application to terminate the lease.

Substantially Valid

  1. [66]
    The notice period of two months and two days more than satisfies the two month minimum required by s 329(2)(j) of the new Act for purposes of ending a periodic tenancy, it was properly completed and signed, and is valid and effective according to its terms.

Service In Issue

  1. [67]
    As part of the tenants’ defence, Mr Cannon tentatively put the efficacy of email service of the Form 12 Notice in issue at the hearing on 2 August 2016 in the following way.
  2. [68]
    He said that he was not sure that the terms and conditions agreed between the parties ‘...achieved the purpose ...’ of service[34] and ‘...that might be nothing more than an indication of a request by the respondents to abide by a certain practice.[35]
  3. [69]
    I do not accept that assertion for the reasons which follow.

Tenants Request For All Communication By Email

  1. [70]
    Mr Cannon, personally and as agent for Ms Pearson with her authority,[36] requested that all communications between Mr Saunders and themselves be in writing by email.[37]
  2. [71]
    The request was first made in a nine page letter dated 25 January 2016 that ‘all communications ... be in writing delivered to the writer’s email address.’
  3. [72]
    The request was repeated in a three page letter dated 3 February 2016 to Mr Saunders and Excell[38] drafted at Ms Pearson’s request[39] and with her authority, as was subsequent correspondence. Nothing was sent without the concurrence of both Mr Cannon and Ms Pearson.
  4. [73]
    Mr Cannon made the request again in a four page letter to Mr Saunders and Excell dated 12 March 2016 in which he said:

"You are asked that when you send any email correspondence to Ms Cheryl Pearson, to include the writer in those communications and vice versa, as a functional courtesy".

  1. [74]
    According to Mr Cannon’s letter dated 12 March 2016, Mr Saunders had been warned by the Queensland Police Service not to enter the property at 16 Tomewin Street, Currumbin.
  2. [75]
    Civil relations between the parties, even in correspondence, had deteriorated very considerably by this time.

Accepted

  1. [76]
    Mr Cannon sent each of these three letters by email to Mr Saunders.
  2. [77]
    Mr Saunders obliged the request for communication by email only in sending Excell’s Form 12 Notice To Leave to Mr Cannon and Ms Pearson[40] at their designated email addresses.

Form 12 Notice Emailed

  1. [78]
    Excell’s Form 12 Notice was emailed on 29 April 2016 at 10:18 AM to Mr Cannon and Ms Pearson.[41]
  2. [79]
    Mr Cannon[42]  and Ms Pearson[43] admitted to having received the email and Form 12 Notice.

An Estoppel Lies

  1. [80]
    It would be unconscionable to allow Mr Cannon and Ms Pearson to challenge the efficacy of email service of the Form 12 Notice to Leave where they themselves had called for all communication by email only.
  2. [81]
    Mr Saunders having complied with the request by effecting service in that way, an estoppel lies against Mr Cannon and Ms Pearson preventing them from asserting that service by email was not good service, Excell having acted upon the request to its detriment.

Email Service Also Permitted By Statute

  1. [82]
    Estoppel aside, s 39 of the Acts Interpretation Act 1954 (Qld), (‘the Acts Interpretation Act’) resolves any doubt about the efficacy of email service where, as in this case, there was no provision for it in the periodic lease.
  2. [83]
    Section 39 covers the field of service options available to a party when giving a Notice by permitting a document to be delivered, given, notified, sent, or served on an individual in a number of ways, including by sending the document by ‘…facsimile or similar facility.’[44]
  3. [84]
    The phrase ‘similar facility’ has been held to include transmission by email.[45] Service of the Form 12 Notice by email was thus permitted by s 39 of the Acts Interpretation Act and was effective in this case.

Date and Time Of Email Service

  1. [85]
    Unless otherwise agreed between the originator and the addressee of an electronic communication, the time of receipt of an email is when it is capable of being retrieved at the recipient’s designated email address.[46]
  2. [86]
    Also, unless otherwise agreed, it is assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address.[47]
  3. [87]
    Unless transmission of the email was rejected, which is not the case here, the Form 12 Notice was received, and capable of being retrieved, at 10:18 AM on 29 April 2016.
  4. [88]
    Therefore, service by email of the Form 12 Notice was effected at 10:18 AM on 29 April 2016 and more than the required minimum two months notice to leave was given by Mr Saunders on behalf of Excell to Mr Cannon and Ms Pearson.

Application For Lease Termination

  1. [89]
    Ms Cannon and Ms Pearson did not leave Unit 16B by midnight on 1 July 2016 so, on 11 July 2016, within the prescribed 14 days of the expiry date in the Form 12 Notice as required by s 293(2) of the new Act, Excell filed an application on 11 July 2016 for an order terminating the lease.

Other Defences Raised

  1. [90]
    I have already dealt with some of the defences raised by Mr Cannon, personally and on behalf of Ms Pearson, however there are others to which I now turn.

New Tenancy 

  1. [91]
    Mr Cannon says that a new periodic tenancy agreement was agreed between the parties in March 2012,[48] which I have earlier found was not the case, and says that new tenancy agreements were formed more recently through ‘rollovers’.
  2. [92]
    These assertions implicitly acknowledge the existence of a prior periodic tenancy and the term ‘rollover’ implies further periodicity.
  3. [93]
    Mr Cannon relies on the fact that rent was sometimes paid ‘three plus’ months in advance[49] during 2016 which he says created new fixed term tenancies for varying periods[50] because, he says, the lease ‘rolled over’ and ‘varied.[51]
  4. [94]
    Therefore, he asserts, each new term fixed by rent paid in advance ended ‘at the time of the expiration of the money,[52] that is:
    1. on 18 January 2016 for $1,200 paid on 9 November 2015;
    2. on 14 March 2016 for $960 paid on 18 January 2016; and
    3. on 19 September 2016 for $3,000 paid on 14 March 2016.
  5. [95]
    These are the payments and periods recorded on the back of the NAB envelope to which I referred earlier.
  6. [96]
    This new fixed term lease assertion sits uncomfortably at odds with Ms Pearson’s evidence of the oral agreement reached with Mr Saunders on 10 April 2012 for Mr Cannon’s benefit and by which Mr Cannon became a co-tenant.
  7. [97]
    As I have found, Mr Cannon became a co-tenant under an ongoing, though since 13 December 2006 periodic, lease which has subsisted otherwise unchanged throughout.
  8. [98]
    The new fixed term lease assertion also overlooks the fact that the varying rental amounts paid many months in advance, the last of which Mr Cannon deposited directly into Excell’s bank account,[53] were not called for by Mr Saunders as Mr Cannon conceded.[54]
  9. [99]
    Simply because tenants under a subsisting periodic lease suddenly and unilaterally commence making unsolicited rental payments of different amounts well in advance of what is required does not mean that successive new leases are formed accordingly for fixed terms of varying duration as Mr Cannon contends.
  10. [100]
    The new fixed term tenancy defence therefore fails.

Tenants ‘In Good Standing’

  1. [101]
    Both Mr Cannon and Ms Pearson asserted that they were tenants in good standing which, Ms Pearson said, entitled them to a new lease in writing. 
  2. [102]
    Though perhaps relevant to discretion, good standing is, however, not a defence as such to a termination application for failure to leave at the expiry of a notice without grounds.
  3. [103]
    The good standing defence therefore fails.

Retaliation

  1. [104]
    Mr Cannon asserted that the Form 12 Notice ought be set aside because it was issued in retaliation for complaints about the condition of the property and certain ‘disentitling’ conduct.
  2. [105]
    However, neither Mr Cannon nor Ms Pearson applied to set aside the Form 12 Notice on grounds of retaliation within four weeks of service as is required by section 292(3) of the Residential Tenancies and Rooming Accommodation Act 2008 and it was not open to them to attempt to do so orally at the hearing.
  3. [106]
    Further, and in any event, retaliation is not open as a defence to a termination application for the following reason.
  4. [107]
    If an application made within the prescribed period to set aside a Notice to Leave for retaliation is successful then the tenants are no longer required to leave.
  5. [108]
    A groundless termination application filed in that circumstance would be prone to summary dismissal as an abuse of process but this is not a groundless application.
  6. [109]
    The retaliation defence therefore fails.

Discretionary Considerations

  1. [110]
    Having found that Excell’s termination application is properly grounded, the remaining issue is whether I ought, in the exercise of my discretion to do so,[55] terminate the lease for failure to leave.
  2. [111]
    The following are considerations favouring continuance of the lease.
  3. [112]
    Ms Pearson has been a tenant for almost 11 years and Mr Cannon a co-tenant for over four years and there had been a generally good relationship between the parties prior to 2016.
  4. [113]
    Further, rent under the lease has been paid throughout. Mr Cannon and Ms Pearson are tenants in good standing in that qualified sense.
  5. [114]
    Those considerations aside, Mr Cannon asserted that Excell had engaged in ‘disentitling conduct’ by entering into a lease[56] with Mr Moore which gave him exclusive use of the driveway to the Units 16A to C thereby infringing his and Ms Pearson’s leasehold rights. Mr Cannon says that this is relevant to discretion.
  6. [115]
    If, however, there had been a breach of their lease in this regard, then Mr Cannon and Ms Pearson could act on it and seek to enforce their rights in the Tribunal but they did not commence proceedings or file a counter application against Excell so the issue was not before me for determination on the merits.
  7. [116]
    The disentitlement issue therefore seems to me to be irrelevant to the exercise of discretion in deciding the termination application, however, if I am incorrect in that conclusion, the dispute complicates an already fractious relationship between the parties.
  8. [117]
    The following, on the other hand, are considerations favouring termination of the lease.
  9. [118]
    Firstly, the termination application is competent and properly grounded. The termination ground, i.e. failure to leave, is established. That alone suffices for the exercise of discretion to terminate the lease.
  10. [119]
    Secondly, the lease has been periodic since 13 December 2006 and must come to an end at some point in time. There is no legal or equitable entitlement to a residential lease in perpetuity.
  11. [120]
    Thirdly, the parties are in ongoing and acrimonious dispute with each other as is evidenced in correspondence[57] including Mr Cannon’s correspondence with Mr Saunders in letters dated 12 March 2016, 3 February 2016 and 25 January 2016 to which I referred earlier.
  12. [121]
    Fourthly, Mr Cannon and Ms Pearson are also in conflict with Mr Moore, the tenant in Unit 16A.
  13. [122]
    Fifthly, according to a Letter dated 1 March 2016 and a Show Cause Notice from the Gold Coast City Council dated 9 March 2016 addressed to Excell, the units are in somewhat of a dilapidated state requiring building works to bring them into building compliance.
  14. [123]
    Sixthly, Mr Cannon himself asserts that the toilet and shower, both essential facilities in Unit 16B, are non-compliant with Local Government Regulation.[58]
  15. [124]
    In circumstances where there is no co-operation between the parties on access for repairs,[59] vacant possession of Unit 16B would facilitate bringing Unit 16B into compliance in all respects.
  16. [125]
    Seventhly, termination of the lease would bring an end to what is, on any view, now a very troubled and stressful situation.

Exercise of Discretion

  1. [126]
    My duty is to make orders that I consider fair and equitable to the parties to the proceeding in order to resolve the dispute including, if appropriate, by dismissal of an application.[60]
  2. [127]
    For the reasons which I have given, I consider that it would not be appropriate, fair or equitable, to dismiss Excell’s application for termination of the lease.
  3. [128]
    I do not consider it unfair or inequitable to Mr Cannon and Ms Pearson that I should terminate the lease in the circumstances to which I have referred.
  4. [129]
    I consider that it would be unfair and inequitable to Excell if I did not now order an end to the lease.
  5. [130]
    Individually and in combination, the discretionary considerations identified as favouring termination of the lease substantially outweigh those favouring its perpetuation and Mr Cannon and Ms Pearson have been on notice for over four months of the need to make arrangements to rent a property elsewhere.

Orders

  1. [131]
    I therefore order as follows:
  1. The Residential Tenancy Agreement between the parties be terminated as from midnight on 31 October 2016 on the grounds of failure to leave.
  2. A Warrant of Possession to issue authorising a police officer to enter the premises of 16B Tomewin Street, Currumbin, QLD 4223.
  3. The Warrant of Possession shall take effect on 1 November 2016 and remain in effect for 14 days, to expire on 14 November 2016.
  4. The Warrant of Possession be executed as soon as is reasonably practicable after taking effect.
  5. Entry under the warrant shall only be between the hours of 8:00am and 6:00pm.

Footnotes

[1]Pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3)(c).

[2]Filed in February 2016 and heard at Coolangatta on 15th March 2016.

[3]Transcript 15 March 2016 at 1-11 lines 12 to 46.

[4]ASIC search extract dated 29 January 2016.

[5]Ibid at page 3.

[6]Search date 29 January 2016.

[7]T 1-93 lines 30 to 47 (Transcript 2 August 2016).

[8]T 1-34 lines 36 to 44.

[9]T 1-94 lines 29 to 41.

[10]Entitled “General Tenancy Agreement under the Residential Tenancies Act 1994 (Qld) - August  2005 edition”.

[11]T 1-49 lines1 to 46 and T 1-50 lines1 to 21.

[12]Of which only a copy was produced.

[13]T 1-50 at lines1 to 20.

[14]Residential Tenancies Act 1994 (Qld) s 38; read with Residential Tenancies Amendment Regulation (No. 1) 1998 (Qld).s 5, s 12 and Schedule 1.

[15]Queensland Civil and Administrative Tribunal Act 2009 s 28(3)(c).

[16]Exhibit A3.

[17]T 1- 28 lines 10 to 23.

[18]T 1-13 lines 1 to 17.

[19]T 1-13 lines 1 to 10.

[20]Pico Holdings Inc v Wave Vistas P/L & Anor [2003] QCA 204 at [6].

[21]See Air Tahiti Nui Pty Limited v McKenzie (2009) NSWCA 429 at [28] and the cases there referred to;

[22]Schedule 1 at pages 18 to 40.

[23]Ibid and see also exhibit T1.

[24]Residential Tenancies Act 1994 (Qld) s 46(1) and (3).

[25]Residential Tenancies Act 1994 (Qld) s 46(1) and (3).; Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 8(1) and s 12(1).

[26]Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 543(2).

[27]Ibid, s 12(3); s 8(2)(a) and (b) of the repealed Act.

[28]T 1-16 at lines 30 to 46.

[29]T 1-50 at lines 15 to 22.

[30]T 1-53 at  lines1 to 40 and 1-54 at lines 1 to 5.

[31]T 1-61 at lines 19 to 34.

[32]T 1-54 at lines 6 to 20.

[33]T 1-53 at line 1.

[34]T 1-44 lines 20 to 25.

[35]T 1-47 lines 23 to 30.

[36]T 1-73 lines 10 to 24, T 1-74 lines 5 to15 and T 1-72 lines 24 to 46.

[37]T 1-73 lines 32 to 38.

[38]The first page of which is marked Exhibit A2A.

[39]T 1-75 lines 1 to 18.

[40]T 1-71 lines 42 to 47 and T 1-72 at lines 1 to 14.

[41]The email and accompanying notice is filed in this Application.

[42]T 1-78 lines 1 to 46, T 1-79 lines 1 to 46 and T 1-80 lines 1 to 45.

[43]T 1-84 lines 1 to 46, T 1-85 lines 30 to 46 and T 1-86 lines 1 to 45.

[44]Acts Interpretation Act 1954 (Qld) s 39(1) and s 39(2).

[45]QBSA v J M Kelly (Project Builders) Pty Ltd [2013] QCA 320.

[46]Electronic Transactions (Queensland) Act 2001 (Qld) s 24(1)(a).

[47]Ibid, s 24(2).

[48]T 1-30 at lines 36 to 47 and 1-31 at lines 1 to 14.

[49]T 1-58 at lines 30 to 35.

[50]T1-60 at lines 1 to 23.

[51]Ibid.

[52]T 1-63 at lines 2 to 30.

[53]T 1-56 at lines 1 to 26.

[54]T 1-62 at lines 1 to 44.

[55]Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 341(2).

[56]Exhibit A1.

[57]Exhibit PGC1 to Mr Cannon’s affidavit sworn 2 August 2016.

[58]T 1-34 at lines 40 to 44.

[59]See, for example,  Mr Cannon’s letter to Mr Saunders dated 6 March 2016 and associated correspondence.

[60]  Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 13(1).

Close

Editorial Notes

  • Published Case Name:

    Excell Ventures Pty. Ltd. v Cannon & Anor

  • Shortened Case Name:

    Excell Ventures Pty. Ltd. v Cannon & Anor

  • MNC:

    [2016] QCAT 346

  • Court:

    QCAT

  • Judge(s):

    Adjudicator Alan Walsh

  • Date:

    28 Sep 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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