Giffing v Demy-Geroe[2021] QCAT 315

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is this matter about?

1. [1]
   The Respondent, Andrew Lewis Demy-Geroe resided in his mother’s property with his mother for many years. When his mother lost capacity, the Tribunal ordered that his siblings (including the Applicant, Mr George Michael Giffing) be appointed jointly and severally as Administrators for all financial matters.^[1] The Tribunal also authorised the Administrators to permit Mr Demy-Geroe to continue to reside in the property at less than market rent, being $100 per week, subject to Mr Demy-Geroe maintaining the property and grounds (the original decision).^[2]
2. [2]
   Mr Demy-Geroe failed to pay rent and commenced a series of unsuccessful appeals to have the original decision set aside primarily on the grounds that he could not afford to pay the rent, or that paying rent was a substantial injustice.^[3]
3. [3]
   With the permission of the Administrators he continued to reside in his mother’s property in the meantime.
4. [4]
   On 24 September 2018, Mr Giffing on behalf of the administrators filed an urgent residential tenancy dispute in the Tribunal seeking compensation of $100 per week from 16 October 2016. The matter was heard on 12 October 2018 before Member Dr Andrew Collier who, whilst commenting that the lease between the parties was one that very probably came withing the scope of the Residential Tenancy and Rooming Accommodation Act 2008 (RTRA Act), determined the application as a Minor Debt dispute and ordered that Mr Demy-Geroe pay to Mr Giffing the sum of $10,349.07 within 14 days.
5. [5]
   Despite the order of 12 October 2018, Mr Demy-Geroe continued to reside in the property and failed to pay rent.
6. [6]
   Consequently, Mr Giffing filed a further urgent residential tenancy dispute seeking a termination order and warrant of possession on the grounds of objectionable behaviour. The application was heard before Adjudicator Walsh on 21 August 2019 at which time he amended the application to include the ground of excessive hardship of the lessor for the failure by Mr Demy-Geroe to pay rent. Adjudicator Walsh found that a residential tenancy agreement existed between the parties and made an order for termination on the grounds of objectionable behaviour and excessive hardship, ending the tenancy on 11 September 2019 with a warrant of possession issuing on 12 September 2019.  
7. [7]
   Mr Demy-Geroe failed to vacate the property by 11 September 2019 and Mr Giffing sought to have the warrant of possession enforced with Mr Demy-Geroe being forcibly evicted on 17 September 2019. 
8. [8]
   On 25 November 2019, Mr Giffing filed a third urgent residential tenancy dispute in the Tribunal claiming additional compensation of $5,103.40 (being $100 per week from 13 October 2019).
9. [9]
   On 19 June 2020 I heard the application for compensation and dismissed the claim because it did not comply with the residential tenancy requirements.
10. [10]
    Mr Giffing appealed the decision and on 19 May 2021 the appeal tribunal ordered that the matter be remitted back to me for further consideration.
11. [11]
    The matter was heard before me on 26 July 2021.
12. [12]
    The issues to be determined in this matter are:

    1. (a)
       Whether the arrangement between the parties was a residential tenancy to which RTRAA applied.
    2. (b)
       If it is a residential tenancy, whether the application can succeed as a:

       3. (i)
          urgent money claim against Mr Demy-Geroe for remaining in possession after an order for termination had been made by the Tribunal; or

       3. (ii)
          a non-urgent application for compensation for unpaid rent; or

       3. (iii)
          a Minor Debt. 

What was the arrangement?

13. [13]
    Section 9 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) empowers the Tribunal to deal with matters specified in the RTRA Act.
14. [14]
    Section 11 of the QCAT Act gives the Tribunal jurisdiction over minor civil disputes which includes both a tenancy matter and a minor debt. A tenancy matter is as a matter which a person may apply under the RTRA Act to the Tribunal for a decision regarding a residential tenancy. A minor debt is a claim for payment of a liquidated amount.
15. [15]
    The RTRA Act defines a residential tenancy as the right to occupy residential premises under a residential tenancy agreement.^[4] Residential premises are premises used, or intended to be used, as a place of residence or mainly as a place of residence.^[5] A residential tenancy agreement is an agreement under which a person gives to someone else a right to occupy residential premises as a residence.^[6] A residential tenancy agreement can be wholly in writing, wholly oral, wholly implied or a combination of some or all.^[7]
16. [16]
    It is not contentious that there is no written residential tenancy agreement between the parties, nor that Mr Demy-Geroe resided in the property up to 17 September 2019.
17. [17]
    Mr Giffing claims that prior to the Tribunal’s decision of 26 October 2016 the arrangement between Mr Demy-Geroe and their mother could be at best described as a boarding arrangement. However, such arrangement (if it did exist) ceased once their mother was admitted to a nursery home. He claims that the decision of 26 October 2016 provided a legal framework for Mr Demy-Geroe to continue to reside at the property after their mother was admitted to a nursing home. The administrators ‘offered’ to permit Mr Demy-Geroe to remain at the property on the terms set out in the order, namely he pay $100 per week and maintain the property and grounds. He claims that as he continually challenged the Tribunal decision to permit him to reside at the property, denied there was a residential tenancy arrangement and never paid the required rent that no contractual agreement was reached, as the parties were ‘never of the one mind on the matter’.^[8]
18. [18]
    I agree with Mr Giffing submissions that the arrangement between the parties was not one where Mr Demy-Geroe would be considered a boarder or lodger.
19. [19]
    Section 433 of the RTRA Act sets out relevant matters the Tribunal is required to consider when deciding whether a person is a boarder or lodger. This includes: 

1. (a)
   the extent to which the person has control over premises;

2. (b)
   the extent to which another person, receiving an amount from the person for the right to reside at the premises, has control of the premises;

3. (c)
   whether another person, receiving an amount from the person for the right to reside at the premises, also resides at the premises;

4. (d)
   the provision of services to the person;

5. (e)
   whether the person shares facilities, including the bathroom and kitchen facilities; and

6. (f)
   anything else the tribunal considers relevant.

20. [20]
    Following the departure of his mother, Mr Demy-Geroe had the sole and exclusive use of the premises. There were no shared facilities and Mr Demy-Geroe had control over the entire property to the same extent a tenant would have under a residential tenancy. To continue to reside at the premises the administrators required that Mr Demy-Geroe change the electricity and telephone account out of their mother’s name into his own name, which Mr Demy-Geroe did.^[9]  The rental amount of $100 was calculated by the administrators as being the approximate cost of the rates and insurance for the property.
21. [21]
    In the circumstances, I find that the arrangement between the administrators and Mr Demy-Geroe was not one that could be considered as boarder or lodger.
22. [22]
    The original decision of the Tribunal permitted the administrators to allow the respondent to continue to occupy the premises, which they did. The fact that the respondent failed to pay rent in accordance with the agreement, or that he challenged the requirement to pay rent, does not, in my view, mean a residential tenancy agreement does not exist. Nor does the fact that the tribunal ordered compensation for unpaid rent without making a finding that a residential tenancy agreement existed.
23. [23]
    To say a residential tenancy agreement did not exist conflicts with bringing an application for a termination order and warrant of possession where such orders cannot be made, and in fact were not made, without the Tribunal firstly finding that a residential tenancy agreement existed between the parties.  For me to now find a residential tenancy agreement was not in place would mean that the Tribunal did not have the jurisdiction to make a termination order and this is problematic because it is the remaining in possession after a termination order that forms part of Mr Giffing’s claim for compensation.
24. [24]
    Nevertheless, I am satisfied that by permitting Mr Demy-Geroe to have exclusive use and occupation of the property for a period of three years after the original order was made, requiring as a condition of occupation that he transfer the utilities into his own name, by making repeated demands throughout his occupation for payment of rent, all support a finding that a residential tenancy agreement existed between the parties.

Can the application succeed as an urgent money claim against Mr Demy-Geroe for remaining in possession after an order for termination had been made by the Tribunal?

25. [25]
    MCDT2538/19 was brought as an urgent application. Section 415 of the RTRA Act sets out the types of application that can be brought as an urgent application. These include an application for termination of the tenancy on various grounds as well as various other orders including compensation for a tenant remaining in possession after a termination order is made by the Tribunal. 
26. [26]
    Mr Demy-Geroe remained in occupation of the premises for 5 days after the termination order was made, being from 12 September 2019 to 17 September 2019. Pursuant to section 358 of the RTRA Act on application by the lessor the Tribunal may make an order requiring the tenant to pay to the lessor an amount it considers the lessor is entitled to receive for compensation and/or occupation fee.
27. [27]
    I am satisfied that Mr Giffing is entitled to compensation for this period which I assess as being the equivalent rent for that period in the amount of $71.43.^[10]

Can the application succeed as a non-urgent claim for compensation?

28. [28]
    Whilst expressed as an urgent claim, the application is in the majority a non-urgent claim for compensation pursuant to s 420 of the RTRA Act, being the recovery of rental arrears from 13 October 2018 to 17 September 2019.^[11]
29. [29]
    The RTRA Act clearly distinguishes between urgent applications, and other applications. Unless an application qualifies as urgent, the applicant can only apply to the Tribunal if it has first made a dispute resolution request in the manner set out in s 402 of the RTRA Act. That is apparent from the clear prohibition contained in s 416 against an application to the Tribunal unless that request has been made.
30. [30]
    There is no dispute that Mr Giffing did not lodge a dispute resolution request with the RTA. He says he did not as he did not know it was required, judgment was obtained in matter MCDT2154/18 without such application having been made, and it would have been a waste of time giving Mr Demy-Geroe’s long history of failing to attend court hearings and continued appeal litigation.
31. [31]
    Whilst the grounds raised by Mr Giffing are valid, the unfortunate result is that by failing to comply with s 416 of the RTRA Act the Tribunal is devoid of jurisdiction to determine the application and accordingly the application must fail.

Can the application succeed as a minor debt application?

32. [32]
    Mr Giffing argues that the decision of 19 June 2021 to dismiss the application for lack of jurisdiction was inconsistent with the decision of the Tribunal in proceeding MCDT2154/18 heard on 12 October 2018 where such application was brought on the same grounds and an order for compensation was made.
33. [33]
    In making this decision I listened to the recording of the hearings for both matters MCDT2154/18 as well as MCDT 1561/19.^[12]
34. [34]
    Both applications were brought as urgent residential tenancy disputes. The first application was for compensation and brought on the same grounds as the application heard by me on 19 June 2020. Whilst the learned member made a number of comments that the lease agreement likely fell under the RTRA Act, the Member expressly stated, that he had not looked at the RTRA Act implications in making the order that the rental arrears was a liquidated debt. He also recommended that the administrators obtain advice as to whether the terms of the RTRA Act apply to obtain an order to recover the premises.
35. [35]
    In my respectful opinion the matter cannot be considered as a minor debt without firstly determining whether the RTRA Act applied. This is because a non-urgent claim for compensation to which the RTRA Act applies cannot be determined as an application for a minor debt. 
36. [36]
    In any event, s 126(2) of the QCAT Act provides that:

The making, by the tribunal, of a final decision in a proceeding for a minor civil dispute does not prevent a court or another tribunal making a decision about an issue considered (whether or not decided) by the tribunal in the proceeding if the issue is relevant to a proceeding for another matter before the court or other tribunal.

37. [37]
    The reference to ‘other tribunal’ has been held to include a reference to a differently constituted QCAT Tribunal as this one is^[13]. In other words, I am not bound by what Mr Giffing says is an inconsistent decision in MCDT2154/18 and can decide this matter on its own merits.
38. [38]
    In my respectful opinion the matter cannot be considered as a minor debt without firstly determining whether the RTRA Act applied. This is because a non-urgent claim for compensation to which the RTRA Act applies cannot be determined as an application for a minor debt.
39. [39]
    In Big4 Brisbane Northside Caravan Village v Schliebs,^[14] the former President of the Tribunal, Justice Wilson, was requested to answer a question of law namely, ‘whether the Tribunal when dealing with “urgent” applications (which are not compelled to go through the RTA conciliation process) can also determine and dispose of “non-urgent” claims which have not undergone that process’.
40. [40]
    In answering this question in the negative, his honour considered the requirement imposed by the s 416 of the RTRA Act that an application can only be brought if the applicant has first made a dispute resolution request about the issue.

[30]  Under ss 6 and 7 of the QCAT Act provisions in enabling Acts about applications, and the Tribunal’s functions, prevail over the provisions of the QCAT Act.^[15]

[31]  Here the enabling act, the RTRA Act, clearly prescribes the procedures to be followed and, to the extent of any inconsistency between that procedure and the provisions of the QCAT Act mentioned above, the enabling act prevails.

41. [41]
    In considering whether the procedural difficulties thrown up by s 416(1) could be circumvented by dealing with the claim for rent as though it was a claim for a debt or liquidated amount, his honour in finding it could not, stated at:

[39]  As previously observed, Chapter 6 of the RTRA Act applies to applications to the Tribunal by lessors and tenants under residential tenancy agency agreements.^[16] The RTRA Act (the relevant enabling Act) provides that the tenant must pay rent under a residential tenancy agreement;^[17] that the non-payment of rent constitutes a breach of the agreement;^[18] and, that the lessor or tenant may apply to the Tribunal for an order about that breach.^[19] Under s 420 of the RTRA Act, claims may be made for the payment of money, compensation, or: “…payment of all or part of the rent under the agreement until - …an application for compensation has been decided.”

[40]  The RTRA Act uses these various terms – “rent”, “breach, and “compensation” – in a way that lacks precision, but it is compelling that claims for arrears of rent, however they might be categorised under s 420 of the RTRA Act, are matters to which the RTRA Act directly addresses itself.

[41]  That conclusion is supported by s 420 itself, which gives the Tribunal wide powers to make different kinds of money orders – for the payment of money, for compensation, or for payment of part of the rent.

[42]  Again, it is compelling that the RTRA Act is intended to be prescriptive and all-embracing in governing the procedure for determination of disputes arising under residential tenancies. It is, as discussed earlier, an enabling Act and its provisions and procedures will, if different from those to be applied by the Tribunal under the QCAT Act, prevail.

42. [42]
    Following the decision in Big4 Brisbane Northside Caravan Village v Schliebs, as I have determined that a residential tenancy agreement exists between the parties to which the RTRA Act applies, the application cannot be dealt with as a Minor Debt.

Orders

43. [43]
    The Respondent is to pay to the Applicant the sum of $71.43.