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Bunting v Jeff Jones Real Estate[2015] QCATA 52

Bunting v Jeff Jones Real Estate[2015] QCATA 52

CITATION:

Bunting v Jeff Jones Real Estate on behalf of Adrian Vos [2015] QCATA 52

PARTIES:

Imogen Bunting

(Appellant)

v

Jeff Jones Real Estate on behalf of Adrian Vos

(Respondent)

APPLICATION NUMBER:

APL537-14

MATTER TYPE:

Appeals

HEARING DATE:

21 April 2015

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Endicott

Member Hughes

DELIVERED ON:

27 April 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal is refused.
  2. The tenancy is terminated.
  3. The Warrant of Possession issued on 8 December 2014 is re-instated to take effect on 12 May 2015 and remain in effect for 14 days, to expire at 6.00pm on 26 May 2015.
  4. The Warrant of Possession is to be executed as soon as reasonably practicable after taking effect.
  5. Entry under the Warrant shall only be between the hours of 8.00am and 6.00pm.
  6. The outstanding Applications filed on 25 February 2015 are dismissed.

CATCHWORDS:

APPEAL – RESIDENTIAL TENANCY – TERMINATION FOR FAILURE TO LEAVE – whether grounds for leave to appeal established – where applicant provided with transcript of proceeding but not sound recording – whether transcript inaccurate – where no material inaccuracies in transcript – where applicant given sufficient time to prepare submissions – whether insufficient reasons – where appropriate summing up of evidence and findings – whether adjudicator made appropriate findings of fact – where adjudicator findings open on evidence – whether new evidence admissible – where appeal process is not opportunity for party to again present their case – where no basis to admit new evidence – where no grounds to grant leave to appeal as no error by adjudicator – whether agreement to offset rent in return for work – where insufficient evidence even if leave to appeal granted and new evidence admitted – whether tenancy should be terminated – where non-payment of rent proven – whether breach justifies termination – where substantial rent arrears – where breach has become more serious with passing of time – where impact of termination could affect family unit 

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 28, 52, 61, 123, 143

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), ss 70, 94,185, 217, 218, 219, 220, 221, 242, 277, 280, 281, 293, 325, 326, 328, 329, 337, 416, 419

Adams v Scowcroft [2012] QCATA 25

Big4Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277

Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39

Cachia v Grech [2009] NSWCA 232

Chambers v Jobling (1986) 7 NSWLR 1

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Commonwealth v Verwayen (1990) 170 CLR 394

Dearman v Dearman (1908) 7 CLR 549

Department of Communities, Housing and Homelessness Services v Kairouz [2010] QCAT 355

Ellis & Anor v Queensland Building Services Authority [2010] QCARA 93

Fox v Percy (2003) 214 CLR 118

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

Hoyt’s Pty Ltd v Spencer (1919) 27 CLR 133

Legione v Hateley (1983) 152 CLR 406

Lowe v Aspley [2010] QCATA 59

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

QUYPD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

Rintoul v State of Queensland & Ors (No. 2) [2014] QCATA 332

State of Queensland Housing and Homelessness Services v Pham [2011] QCAT 540

Summers v The Commonwealth (1918) 25 CLR 114

APPEARANCES:

APPLICANT:

Ms Imogen Bunting appeared in person.

RESPONDENT:

Mr Adrian Vos appeared in person.

REASONS FOR DECISION

What is this appeal about?

  1. [1]
    Ms Imogen Bunting is trying to make a better life for her and her teenage son. She has been studying law and considering starting her own business. She has been a tenant in her current property for some 15 years. In that time, the property has become a home to her and her son, her two pet dogs and her pet cat.
  2. [2]
    Despite this, in August 2014 Ms Bunting stopped paying rent. Her landlord, Mr Adrian Vos applied to the Tribunal to terminate the tenancy. The Tribunal terminated the tenancy on 8 December 2014 for failure to leave and issued a Warrant of Possession.
  3. [3]
    Ms Bunting is understandably distressed about the prospect of her and her family having to move from their home. Ms Bunting therefore wants to appeal the decision to terminate her tenancy, so that she and her family can stay.
  4. [4]
    The issues for us to decide are whether Ms Bunting has established any grounds to grant leave to appeal and if so, whether Ms Bunting has proven an Agreement that rent was to be offset by payments for her work and whether the tenancy should be terminated.

Preliminary matters

  1. [5]
    Ms Bunting devoted considerable time and energy to various applications and requests. Because of the importance of these matters to Ms Bunting, we will address them here to assist her and for completeness. 

Applications filed 25 February 2015

Notice to require person to attend

  1. [6]
    On 25 February 2015, Ms Bunting filed an Application for the real estate agent to attend and produce a letter from Mr Vos apparently requesting the agent not to conduct future inspections, and also all evidence of property inspections and maintenance / condition reports.
  2. [7]
    Unfortunately for Ms Bunting, none of this evidence is relevant to determining the appeal and whether the tenancy should be terminated for Ms Bunting’s failure to pay rent.
  3. [8]
    This is because an allegation that the landlord failed to maintain the property does not allow the tenant to cease paying rent. Maintenance is a separate issue that would require Ms Bunting to bring a separate application, upon filing a Dispute Resolution Request from the Residential Tenancies Authority.[1] The requirement to file a Dispute Resolution Request is strict and a prerequisite to the Tribunal’s jurisdiction.[2]
  4. [9]
    This is not a ground of appeal and the Appeals Tribunal does not have jurisdiction to determine issues about maintenance.[3]
  5. [10]
    We must therefore refuse Ms Bunting’s request for a Notice to produce.

Transfer proceeding

  1. [11]
    Ms Bunting also applied to transfer the appeal and all resulting applications to a higher court ‘for assurances of access to equity and justice and a fair hearing’.[4]  She also suggested this would allow for legal aid to be extended and proper legal consultation and access.
  2. [12]
    The Tribunal may transfer a proceeding if it considers the proceeding would be more appropriately dealt with by another Tribunal.[5]  The Tribunal must act fairly[6] and according to principles of natural justice,[7] with as little formality and as much speed as matters permit.[8]
  3. [13]
    Ms Bunting has had at least four months to seek legal advice.
  4. [14]
    The original application was an urgent application brought in the Tribunal’s minor civil disputes jurisdiction to terminate Ms Bunting’s tenancy. Ms Bunting was afforded an oral hearing of the original application for almost an hour, where she presented evidence and submissions.
  5. [15]
    Ms Bunting has since been provided with no fewer than five opportunities over a period of approximately four months to file submissions to support her appeal.
  6. [16]
    Ms Bunting has been given a full oral hearing of her appeal, where she again presented evidence and submissions.
  7. [17]
    Ms Bunting has been afforded natural justice and a fair hearing.
  8. [18]
    We must therefore refuse Ms Bunting’s request to transfer.

Injunction

  1. [19]
    Ms Bunting also sought an injunction ‘under Rule 5.3 of the Family Law Rules 2004 (Cth)’ requiring the Landlord to undertake emergency repairs due to severe hail damage breaking four windows and damaging the roof.[9]
  2. [20]
    We could not locate any “Rule 5.3 of the Family Law Rules 2004 (Cth)”. However, Rule 5.03 provides:

5.03 Procedure before filing

  1. (1)
    Before filing an application seeking interim, procedural, ancillary or other incidental orders, a party must make a reasonable and genuine attempt to settle the issue to which the application relates.
  2. (2)
    An applicant does not have to comply with subrule (1) if:
    1. compliance will cause undue delay or expense;
    2. the applicant would be unduly prejudiced;
    3. the application is urgent; or
    4. there are circumstances in which an application is necessary (for example, if there is an allegation of child abuse, family violence or fraud).

Note: The court may take into account a party’s failure to comply with subrule (1) when considering any order for costs (see subsections 117(2) and (2A) of the Act).

  1. [21]
    This appeal is about an application to terminate Ms Bunting’s residential tenancy. It would appear from our reading that Rule 5.03 is not. Ms Bunting can, however, arrange for emergency repairs herself and seek reimbursement from the landlord or apply separately to the Tribunal for orders about the repairs.[10] 
  2. [22]
    Unfortunately for Ms Bunting, an alleged failure by Mr Vos to undertake emergency repairs is not a valid ground of appeal.
  3. [23]
    We must therefore refuse Ms Bunting’s request for an injunction.

Requests filed as part of submissions on 30 March 2015

  1. [24]
    On 30 March 2015 and as part of her submissions in support of her appeal, Ms Bunting sought various orders. Although Ms Bunting did not file these applications in the proper form, the Tribunal can excuse non-compliance with procedural requirements.[11] In the interests of justice and fairness to Ms Bunting, we will excuse any non-compliance and consider her requests on their merits.

Set aside default decision and stay warrant of possession

  1. [25]
    Ms Bunting sought to set aside or amend a default decision – ‘to stay the warrant of vacant possession as triggered by item 6 of the Directions of 4 March 2015’.[12]
  2. [26]
    This was not a ‘default decision’, but rather a self-executing order triggered by an alleged failure by Ms Bunting to comply with the Tribunal’s previous order for her to pay rent of $74.76 per week, pending the outcome of this appeal.[13]
  3. [27]
    The application is therefore unnecessary. This is because the preconditions to trigger the self-executing order have not been fulfilled – a failure by Ms Bunting to pay $74.76 per week and the real estate agent filing an affidavit of debt. Ms Bunting told us during the hearing that she has indeed been paying $74.76 per week since the Order.  Mr Vos did not dispute this. The agent did not file an affidavit of debt. The warrant has therefore not been re-issued, pending the outcome of this appeal.
  4. [28]
    Ms Bunting also sought ‘for good measure’ to stay the interim order and the issue of a warrant of possession ‘until such time as I have had sufficient time to respond and work with the sound file’.[14]
  5. [29]
    Ms Bunting has had sufficient time to respond and consider the transcript of the original hearing.[15] In any event, the Tribunal is mandated to act fairly[16] and according to principles of natural justice[17], with as little formality and as much speed as matters permit.[18] It is neither fair nor in accordance with natural justice for Ms Bunting to make requests of the Tribunal “for good measure” and without notice to the other party.[19]
  6. [30]
    Ms Bunting’s request to set aside the interim order suspending the termination order and to stay the warrant of vacant possession is therefore refused.

Reduce rent owing for loss of amenity and emergency repairs

  1. [31]
    Ms Bunting also sought orders that any rent owing be reduced for loss of amenity and ‘emergent’ repairs not being undertaken.
  2. [32]
    Unfortunately for Ms Bunting, these issues are not grounds of appeal and the Appeals Tribunal does not have jurisdiction to determine them as part of this appeal.[20]
  3. [33]
    A rent reduction for substantial loss of amenity is brought by separate application upon Ms Bunting filing a Dispute Resolution Request from the Residential Tenancies Authority.[21]
  4. [34]
    The Tribunal may only order repairs or that the landlord pays or reimburses an amount for emergency repairs not undertaken.[22] A failure by the landlord to undertake emergency repairs does not allow a tenant to cease paying rent.
  5. [35]
    We must therefore refuse Ms Bunting’s request for orders that any rent owing be reduced for loss of amenity and emergency repairs.

Order for Council to inspect property

  1. [36]
    Ms Bunting also sought an order that the property be inspected by a member of the Brisbane City Council to ensure it meets health and safety requirements and an order ‘in respect of the two separate issues of trespass and defamation that these proceedings have caused to come to light’.[23]
  2. [37]
    Unfortunately for Ms Bunting, these issues are not grounds of appeal.
  3. [38]
    Ms Bunting’s requests for the Council to inspect the property and orders relating to trespass and defamation are not within the Appeal Tribunal’s power.

What are the grounds of appeal?

  1. [39]
    Because this is an appeal from a minor civil dispute, leave is required.[24]  In determining whether to grant leave, the Tribunal will consider established principles including whether there is a reasonably arguable case of error in the primary decision,[25] whether there is a reasonable prospect that the appellant will obtain substantive relief,[26] whether leave is needed to correct a substantial injustice caused by some error,[27] and whether there is a question of general importance upon which further argument, and a decision of the Appeals Tribunal, would be to the public advantage.[28]
  2. [40]
    Ms Bunting submitted as grounds of appeal that the transcript of the original hearing is inaccurate, the learned Adjudicator gave insufficient reasons and the learned Adjudicator failed to give due weight to her evidence. She also sought to adduce new evidence of her alleged services agreement with Mr Vos.

Inaccurate transcript

  1. [41]
    Ms Bunting claims the transcript of the original hearing is inaccurate and she requires the sound recording to determine exactly what parts of the original hearing equate to errors of fact or law.
  2. [42]
    We have carefully listened to the recording of the original hearing and compared it with the transcript. No material inaccuracies are evident.
  3. [43]
    At one point, the learned Adjudicator does erroneously refer to ‘Mr Vos’s case’ not being made out.[29]  However, the context clearly shows it should be read as referring to ‘Ms Bunting’s case’. Nothing turns on it.
  4. [44]
    It is enough for the Tribunal to give Ms Bunting a written transcript.[30] Ms Bunting has had an accurate transcript of the original hearing since 5 March 2015.[31] The Tribunal extended the time for Ms Bunting to file her submissions to support her appeal, to 30 March 2015.[32] She has filed no fewer than 16 pages of submissions with accompanying material approximately 3cm thick in a ring bound folder.
  5. [45]
    Ms Bunting has had sufficient time to consider the transcript and prepare her submissions.
  6. [46]
    We must therefore dismiss this as a ground of appeal.

Insufficient reasons

  1. [47]
    Ms Bunting claims the learned Adjudicator did not give a statement of reasons or ‘obvious conclusion from a clearly derived set of evidence’.[33]
  2. [48]
    We have carefully listened to the recording of the original hearing and read the transcript and evidence on file. The learned Adjudicator gave both parties time to explain each of their cases and he explored issues as they arose. He adjourned the application to allow Ms Bunting time to gather more documents. The Adjudicator acted entirely appropriately in making his findings, under considerable pressure from the parties.
  3. [49]
    The Transcript comprises 29 pages. The learned Adjudicator’s reasons and conclusions comprise no fewer than 10 of those pages. Those reasons include a summing up of relevant evidence, the role of the Tribunal, the standard of proof, the reasons for not preferring Ms Bunting’s evidence and relevant findings – despite repeated interruptions. The learned Adjudicator’s reasons were sufficient, despite the disruption.
  4. [50]
    We must therefore dismiss this as a ground of appeal.

Accepting Mr Vos’ and his agent’s evidence and not Ms Bunting’s evidence

  1. [51]
    Ms Bunting claims the learned Adjudicator erred in accepting Mr Vos’ evidence over her evidence, including the ‘NAB Private Wealth Statement’ presented by Mr Vos, without considering Ms Bunting’s evidence of Mr Vos’ 13 payments for the same work. Ms Bunting claims Mr Vos’ agent’s evidence is hearsay, as it is based on what Mr Vos told the agent. She adds that Mr Vos is not truthful.
  2. [52]
    The Appeals Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[34] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[35]
  3. [53]
    Ms Bunting has the burden of proving the alleged services agreement, its terms and any connection with the Tenancy Agreement. The learned Adjudicator was not persuaded that the alleged services agreement between Ms Bunting and Mr Vos was relevant or connected with the Tenancy Agreement between the parties.
  4. [54]
    The Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate.[36] The agent appeared as Mr Vos’ representative. Mr Vos also gave evidence. The learned Adjudicator’s findings were open to him on the evidence. Unfortunately for Ms Bunting, nothing in the material convinces us that the learned Adjudicator should have adopted a different view of the facts.
  5. [55]
    We must therefore dismiss this as a ground of appeal.

New evidence

  1. [56]
    Ms Bunting wants to rely on new evidence since the hearing, presumably to prove that she was relying on Mr Vos’ payments for work to pay her rent.
  2. [57]
    The Tribunal previously directed that the parties were not to rely on evidence not before the original decision-maker without leave of the Tribunal.[37] Although Ms Bunting filed various Applications for miscellaneous matters, none of these apply for leave to admit this further material.
  3. [58]
    Despite this, we have noted that Ms Bunting is a single parent without legal representation. In the interests of fairness to Ms Bunting, we have therefore considered whether to admit this further material into evidence without her formally applying for leave.[38]
  4. [59]
    The Appeals Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.[39]  To allow this evidence, Ms Bunting must ordinarily satisfy three tests:[40]
  • Could Ms Bunting have obtained the evidence with reasonable diligence for use at trial?
  • If allowed, would the evidence probably have an important impact on the result of the case?
  • Is the evidence credible?
  1. [60]
    Ms Bunting has filed an unsigned ‘Tenancy Agreement’ for a term starting on 21 December 2001 and ending 20 December 2002, an unsworn Statutory Declaration of Elizabeth Stanhope, water utility invoices, Residential Tenancies Authority fact sheets, emails between her and Mr Vos from 2009 to March 2015 and 42 pages of transcripts of no fewer than nine conversations she claims to be between her and Mr Vos.[41]
  2. [61]
    At the end of two of the transcribed conversations, the transcript notes Ms Bunting vocalising a date eg “7th of the 10th 2014”, “13.08.14”. Aside from the issue of whether Mr Vos consented to being recorded, none of the conversations is independently dated or verified. 
  3. [62]
    The evidence that pre-dates the hearing was within Ms Bunting’s possession, power or control and therefore could have been obtained with reasonable diligence before the original hearing. The evidence that post-dates the hearing relates mainly to maintenance issues, unrelated to Ms Bunting’s non-payment of rent.
  4. [63]
    Ms Bunting provided some emails and transcripts to the learned Adjudicator at the original hearing. However, Ms Bunting has not explained why she did not provide all these documents to the learned Adjudicator before or during the hearing.
  5. [64]
    Regardless, none of this evidence advances Ms Bunting’s claim that payment of her rent was conditional upon Mr Vos paying her for her work on the property. In one conversation, Ms Bunting states:

If you don’t pay me today, I won’t be paying the rent. I’ll be taking that in lieu of the $300 payment that you’ve been making on a weekly basis for this very [expletive] purpose. Okay. Take this as notice of my – taking rent in payment in lieu of you paying me reliably because I can not handle the stress of every week…[42]

  1. [65]
    This suggests a unilateral decision made by Ms Bunting to stop paying rent, well after the date she claims to have entered into the work agreement with Mr Vos. While Ms Bunting’s response may be understandable because of her frustration with Mr Vos for allegedly not paying her for work she claims to have done, it is not consistent with a pre-existing agreement that rent was conditional upon payment for work. 
  2. [66]
    Unfortunately for Ms Bunting, none of this new evidence will have an important impact on the result of the case.
  3. [67]
    The appeal process is not an opportunity for a party to again present their case.[43]  It is the means to correct error by the Tribunal that decided the proceeding.[44]  The appeal is to proceed without admitting any new material into evidence.

Has Ms Bunting established grounds to grant leave to appeal?

  1. [68]
    Because Ms Bunting has not established a reasonably arguable case of error by the learned adjudicator, we are not satisfied that Ms Bunting has established any grounds to grant leave to appeal.

Was there an Agreement that rent was to be offset by payments for Ms Bunting’s work?

  1. [69]
    Even if we were persuaded of error by the learned Adjudicator sufficient to grant leave to appeal and we admitted Ms Bunting’s new evidence, we are not persuaded to come to a different conclusion from the learned Adjudicator.
  2. [70]
    Ms Bunting claims that Mr Vos breached an arrangement for him to pay her to clean, paint and repair part of the house, resulting in her being unable to pay the rent. Ms Bunting claims that Mr Vos knew that not paying for her work would result in her not being able to pay her rent. However, there is no evidence that this arrangement was to continue indefinitely. If Mr Vos stopped paying Ms Bunting, then Ms Bunting could simply stop working and seek to recover any amounts owing up to that time. However, nothing prevented either party terminating the arrangement without notice.
  3. [71]
    Ms Bunting claims that the arrangement for her to clean, paint and repair the house was inextricably linked to her agreement to pay rent, as all her dealings with both have been conducted exclusively with Mr Vos since he purchased the property almost eight years ago.
  4. [72]
    Ms Bunting sought to rely upon a ‘Tenancy Agreement’ for a term from 21 December 2001 to 20 December 2002 as evidence of the tenancy. Ms Bunting added ‘special terms’ to the document and signed them. In those ‘special terms’, Ms Bunting raised concerns that the rent increase at that time was excessive because of maintenance issues and improvements she says she made to the property.
  5. [73]
    However, the ‘special terms’ are not signed by the owner or the agent at the time, the Agreement itself is not signed or dated and neither the Agreement nor its ‘special terms’ were provided at the original hearing. We therefore cannot accept this as evidence of the Tenancy Agreement.
  6. [74]
    Instead, the evidence is that Ms Bunting had a fixed term Tenancy Agreement with the previous property owner that expired on 9 October 2010.[45] The day after the fixed term ended, the Agreement continued to apply on the same terms, on the basis that Ms Bunting was holding over under a periodic agreement.[46] When Mr Vos purchased the property several years later, the Agreement continues on the same terms by attornment.[47]
  7. [75]
    The Agreement does not provide for rent to be offset by any work performed by Ms Bunting. Ms Bunting sought to rely upon an email from her to Mr Vos dated 13 March 2014. However, it does not link the arrangement for her to provide services with the requirement for her to pay rent.
  8. [76]
    Even if we accept that Ms Bunting and Mr Vos entered into an arrangement for Ms Bunting to work on the house in return for payment, there is no evidence that this varied the original agreement by making payment of the rent conditional upon Mr Vos paying for Ms Bunting’s work on the house. 
  9. [77]
    Rather, the evidence is that Mr Vos paid for Ms Bunting’s work in cash, and Ms Bunting paid her rent in cash. None of the invoices or receipts for payment links or cross-references the Tenancy Agreement with any services agreement.
  10. [78]
    This is not consistent with a variation to the Tenancy Agreement[48] or a collateral agreement to the original Tenancy Agreement.[49]  If the parties had intended for work to offset rent, then it would be reasonable to expect some evidence showing this. Unfortunately for Ms Bunting, there is none. 
  11. [79]
    Ms Bunting did not adduce evidence to corroborate her claim that Mr Vos induced her to believe that payment of rent depended on payment for her work. There is no evidence to show that Mr Vos would not strictly enforce his right to payment of rent under the Tenancy Agreement, if Ms Bunting worked on the house.[50] At most, there may have been two separate agreements – one for a tenancy and one for services. However, there is no evidence linking them. No estoppel arises.
  12. [80]
    We are therefore not persuaded to displace the learned Adjudicator’s finding that Ms Bunting has not made out a case that her agreement for services was sufficiently linked to her Tenancy Agreement to establish a variation of the Tenancy Agreement, a collateral agreement or an estoppel.
  13. [81]
    We are therefore not satisfied that Ms Bunting has a reasonable prospect of obtaining substantive relief.
  14. [82]
    We must therefore refuse Ms Bunting’s application for leave to appeal.

Should the tenancy be terminated?

  1. [83]
    A residential tenancy agreement can only end in one of the ways prescribed by the Residential Tenancies and Rooming Accommodation Act 2008.[51] This includes the Tribunal making an order to terminate the Agreement. The Tribunal made an order terminating the Agreement on 8 December 2014 and issued a Warrant of Possession on the same day.
  2. [84]
    The Tribunal may order termination of the tenancy if the landlord has established the ground of the application and notice to leave, the tenant committed the breach and the breach justifies terminating the agreement.[52]
  3. [85]
    The basis for the Termination Order was that Mr Vos as landlord gave Ms Bunting as tenant, a Notice to Leave[53] and Ms Bunting failed to hand over vacant possession on the handover day of 16 September 2014.[54]
  4. [86]
    The ‘Notice to Leave’ was for an unremedied breach.[55] The unremedied breach was unpaid rent. Mr Vos had issued a ‘Notice to Remedy’ for the unpaid rent before issuing the Notice to Leave.[56] Mr Vos has established the relevant Notices.
  5. [87]
    The unpaid rent was $454.29 as at the date of the Notice to Remedy. The evidence is that Ms Bunting had been paying rent of $300.00 per week since 14 September 2010, but in breach of her Tenancy Agreement she stopped paying rent on or around 18 August 2014.[57] Ms Bunting provided no evidence to refute this. Indeed, Ms Bunting admitted that she had not paid rent. She therefore had only paid rent up to 16 August 2014.[58] The grounds to terminate the tenancy are established.
  6. [88]
    In deciding whether the breach justifies terminating the Agreement, the Tribunal may regard prescribed factors.[59] Specifically, the Tribunal can consider the seriousness of the breach, any steps taken to remedy the breach, whether the breach was recurrent and the frequency of the recurrence, any detriment to the landlord, whether the landlord acted reasonably and any other issues the Tribunal considers appropriate.[60] The impact of termination on the tenant and her family may be relevant.[61] However, a landlord cannot be expected to accommodate non-paying tenants indefinitely.
  7. [89]
    Ms Bunting has lived in the house for over 15 years. Her teenage son knows no other home. They have two dogs and a cat. Ms Bunting says she has nowhere else to live, but ‘remains on the lookout and hopeful that something will soon present itself’.[62] Ms Bunting states that her ideal outcome is that she is allowed to stay in the house.
  8. [90]
    To her credit, Ms Bunting has complied with a Tribunal Order to pay part rent of $74.76 per week,[63] pending determination of her appeal. Unfortunately, however, the evidence is that her actual rent is $300 per week. This means that Ms Bunting’s breach of the Tenancy Agreement has become more serious with the passing of time.
  9. [91]
    By the time Mr Vos filed his application to terminate the tenancy on 19 September 2014, outstanding rent had increased to over $1,000.00. By the date of the hearing, outstanding rent had increased to over $4,000.00.[64]  It now exceeds 200 days, equating to approximately $10,000.00.
  10. [92]
    Under a tenancy agreement, the tenant’s primary obligation is to pay rent. Ms Bunting has had some four months since the hearing and the initial suspending of the Warrant of Possession to source alternative income to pay her rent or find alternative accommodation.[65] This is more than reasonable.
  11. [93]
    We are therefore satisfied that the breach justifies terminating the Agreement and the issuing of a Warrant of Possession.
  12. [94]
    However, we are mindful of the impact that terminating the tenancy could have on Ms Bunting’s family and her pets. Ms Bunting assisted us during the hearing by informing us that her son is currently staying with Ms Bunting’s mother. To help keep Ms Bunting’s family together, we will order that the Warrant of Possession not be issued until 12 May 2015, with an execution period of 14 days.

What are the appropriate Orders?

  1. [95]
    Unfortunately for Ms Bunting, we find no reasonably arguable case that the learned Adjudicator was in error.
  2. [96]
    Because of this, the appropriate Orders are:
    1. Leave to appeal is refused;
    2. The tenancy is terminated;
    3. The Warrant of Possession issued on 8 December 2014 is re-instated to take effect on 12 May 2015 and remain in effect for 14 days, to expire at 6.00pm on 26 May 2015;
    4. The Warrant of Possession is to be executed as soon as reasonably practicable after taking effect;
    5. Entry under the Warrant shall only be between the hours of 8.00am and 6.00pm; and
    6. The outstanding Applications filed on 25 February 2015 are dismissed.

Footnotes

[1] Lowe v Aspley [2010] QCATA 59; Adams v Scowcroft [2012] QCATA 25; Big4Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277.

[2]  Ibid.

[3] Residential Tenancies and Rooming Accommodation Act 2008 ss 185, 416, 419.

[4]  Application to extend time or shorten time limit or for waiver of compliance with procedural requirement dated 25 February 2015.

[5] Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) s 52.

[6]  Ibid s 28(2).

[7]  Ibid s 28(3)(a).

[8]  Ibid s 28(3)(d).

[9]  Application to extend time or shorten time limit or for waiver of compliance with procedural requirement dated 25 February 2015 at paragraph 3.

[10] Residential Tenancies and Rooming Accommodation Act 2008, ss 217 to 221.

[11]  QCAT Act s 61(1)(c).

[12]  Submissions of Imogen Bunting filed 30 March 2015 at p 2.

[13]  Directions dated 4 March 2015.

[14]  Submissions of Imogen Bunting filed 30 March 2015 at p 3.

[15]  See discussion under ‘Inaccurate transcript’.

[16]  QCAT Act s 28(2).

[17]  Ibid s 28(3)(a).

[18]  Ibid s 28(3)(d).

[19] Rintoul v State of Queensland & Ors (No. 2) [2014] QCATA 332.

[20] Big4Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277.

[21] Residential Tenancies and Rooming Accommodation Act 2008 ss 94, 416.

[22]  Ibid s 221.

[23]  Submissions of Imogen Bunting filed 30 March 2015 at p 13.

[24]  QCAT Act s 143(3).

[25] QUYPD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[26] Cachia v Grech [2009] NSWCA 232 at [2].

[27] QUYPD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[28] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 577, 580.

[29]  Transcript of Proceedings, page 1-4, line 24.

[30] Queensland Civil and Administrative Tribunal Act 2009 s 123(2).

[31]  Email Transcript Co-ordination Team to Imogen Bunting dated 5 March 2015.

[32]  Decision dated 4 March 2015 at paragraph 2.

[33]  Submissions of Imogen Bunting filed 30 March 2015 at [8].

[34] Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 – 126.

[35] Chambers v Jobling (1986) 7 NSWLR 1 at 10.

[36]  QCAT Act s 28(3).

[37]  Directions dated 12 December 2014 at paragraph 5.

[38]  QCAT Act s 61.

[39] Ellis & Anor v Queensland Building Services Authority [2010] QCATA 93 at [7].

[40] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

[41]  Transcript of conversation dated 10 August 2014.

[42]  Transcript of conversation dated 13 August 2014, page 6 at lines 13 to 15.

[43] Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 at [9].

[44]  Ibid.

[45]  General Tenancy Agreement dated 8 October 1999.

[46] Residential Tenancies and Rooming Accommodation Act 2008 s 70(2).

[47]  Ibid s 242.

[48] Summers v The Commonwealth (1918) 25 CLR 114.

[49] Hoyt’s Pty Ltd v Spencer (1919) 27 CLR 133.

[50] Legione v Hateley (1983) 152 CLR 406; Commonwealth v Verwayen (1990) 170 CLR 394.

[51] Residential Tenancies and Rooming Accommodation Act 2008 s 277.

[52]  Ibid 337(2).

[53]  Ibid ss 326, 329.

[54]  Ibid s 293.

[55] Residential Tenancies and Rooming Accommodation Act 2008 s 281.

[56]  Ibid ss 280, 325, 328.

[57]  Tenant Ledger from 17 May 2007 to 18 August 2014.

[58]  Ibid.

[59] Residential Tenancies and Rooming Accommodation Act 2008 s 337(3).

[60]  Ibid s 337(3).

[61] Department of Communities, Housing and Homelessness Services v Kairouz [2010] QCAT 355; State of Queensland Housing and Homelessness Services v Pham [2011] QCAT 540.

[62]  Submissions of Imogen Bunting filed 30 March 2015 at page 11.

[63]  Decision dated 4 March 2015 at paragraph 5.

[64]  Transcript of Proceedings, page 1-17, line 11.

[65]  Tribunal Directions dated 12 December 2014.

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Editorial Notes

  • Published Case Name:

    Imogen Bunting v Jeff Jones Real Estate on behalf of Adrian Vos

  • Shortened Case Name:

    Bunting v Jeff Jones Real Estate

  • MNC:

    [2015] QCATA 52

  • Court:

    QCATA

  • Judge(s):

    A/Senior Member Endicott

  • Date:

    27 Apr 2015

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