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Triple One Group Pty Ltd t/as Robert James Realty v Aumuller & ors[2016] QCATA 190

Triple One Group Pty Ltd t/as Robert James Realty v Aumuller & ors[2016] QCATA 190

CITATION:

Triple One Group Pty Ltd t/as Robert James Realty v Aumuller & ors [2016] QCATA 190

PARTIES:

Triple One Group Pty Ltd t/as Robert James Realty

(Applicant/Appellant)

v

Lois Kathryn Aumuller

Chris King

Astrid King

(Respondents)

APPLICATION NUMBER:

APL169 -16

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

6 December 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal granted.
  2. Appeal allowed.
  3. The decisions of 10 and 24 February 2016 are set aside.
  4. Chris King and Astrid King shall pay Lois Aumuller $770 compensation for unpaid rent by 28 December 2016.
  5. The claim for compensation by Lois Aumuller shall otherwise be returned to a differently constituted tribunal for hearing.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – INSPECTION AND REPAIR – where claim by tenant for return of bond – where lessor claim for compensation – where tribunal ordered property manager pay lessor compensation otherwise payable by tenant – whether grounds for leave to appeal

APPEAL – LEAVE TO APPEAL – PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND PARTIES – where claim against property manager – where lessor joined – where property manager did not engage with tribunal – where order made against property manager – where order that property manager pay lessor – – whether grounds for leave to appeal

Chambers v Jobling (1986) 7 NSWLR 1

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

Pickering v McArthur [2005] QCA 294

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    Chris and Astrid King rented Lois Aumuller’s property through Triple One Group Pty Ltd t/as Robert James Realty. At the end of the tenancy, Robert James Realty claimed the bond. The Kings filed an application against Robert James Realty for return of the bond. The tribunal ordered that Robert James Realty pay $1,840 to the Kings and $1,318.84 to Ms Aumuller. The tribunal later amended the order so that the Kings received $1,840 directly from the bond.
  2. [2]
    Robert James Realty wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
  3. [3]
    Robert James Realty says that the tribunal should not have made any order against it. It says it was not advised of the hearing and therefore did not attend to make submissions.

Was Robert James Realty advised of the hearing?

  1. [4]
    The first hearing on 18 January 2016 was adjourned to enable Robert James Realty to appear at the hearing. There is a note on the file:

Both parties complained of the service provided by the real estate agent’s representative. It appeared to the tribunal that the issues raised by both parties were attributable to the real estate agent’s representative. The tribunal has tentatively concluded that the Applicant [the Kings] should be returned their bond, absent any evidence to the contrary provided by the real estate agency and that the costs accrued to the Respondent (Ms Aumuller) in doing up the property be awarded against the real estate agency.

  1. [5]
    That seems an odd reason to adjourn a hearing but, to the extent that it was not a decision, no harm was done.
  2. [6]
    The tribunal sent Robert James Realty a copy of that decision. It sent Robert James Realty a notice of hearing. Robert James Realty sent an email to Ms Aumuller advising that it would not attend the hearing. The evidence does not support a finding that Robert James Realty was not advised of the hearing.
  3. [7]
    Given it was still a party to the proceeding, and the specific terms of the order of 18 January 2016, Robert James Realty’s decision not to attend the adjourned hearing was both dangerous and a breach of the tribunal order.

Should the tribunal have made an order against Robert James Realty?

  1. [8]
    Ms Aumuller filed an application to be joined as a party to the proceeding because she and her husband were joint owners. She also told the tribunal that Robert James Realty was no longer the managing agent and would not be attending the hearing. Robert James Realty confirmed by email that it would not be attending the hearing.
  2. [9]
    The application was filed the day of the first hearing. I can find no order about that application but all documents created by the tribunal after that date reflect that both Robert James Realty and Ms Aumuller were parties to the hearing. The correct order was to substitute Ms Aumuller as the proper respondent and give Robert James Realty leave to withdraw as a party. Robert James Realty might then be required to attend the hearing to give evidence, but as a witness, not as a party.
  3. [10]
    The Kings and Ms Aumuller may have been unhappy with the way Robert James Realty managed the tenancy but that was not the issue before the tribunal. The Kings complained about the lack of maintenance, but they were not claiming compensation. Ms Aumuller may have a claim against Robert James Realty for negligence or breach of contract but Robert James Realty did not have notice of that claim and the tribunal was purporting to exercise its jurisdiction under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). That Act does not contemplate an action by a lessor against a property manager.
  4. [11]
    The tribunal was in error. It should not have made an order against Robert James Realty.
  5. [12]
    The tribunal’s error has infected the whole of its decision. The Kings conceded that they owed Ms Aumuller $770 rent but could not pay it until they received the bond.[3] The appropriate order, therefore, was that Ms Aumuller should have received that part of the bond.
  6. [13]
    The tribunal also found that Ms Aumuller was entitled to compensation of $1,318.84 for damage to the premises, but payable by Robert James Realty. It is not clear from the transcript whether the tribunal properly turned its mind to the Kings’ responsibility for that damage. It appears that the parties agreed to this compensation because Robert James Realty would be paying for it. Making sense of the transcript is made more difficult because none of the parties are identified. The tribunal did not take appearances at the start of the hearing, so the Kings and Ms Aumuller are all ‘UNIDENTIFIED SPEAKER’.
  7. [14]
    Because I cannot be satisfied that the tribunal gave the Kings a proper opportunity to address the claim for compensation in the event that they might have to pay for it, I will not substitute my own decision for that of the tribunal. I order the Kings pay $770 to Ms Aumuller in respect of the unpaid rent. I order that the balance of Ms Aumuller’s claim be returned to the tribunal for hearing before a differently constituted tribunal.

Footnotes

[1] QCAT Act, s 142(3)(a)(i).

[2] Pickering v McArthur [2005] QCA 294 at [3].

[3] Transcript 10 February 2016 page 1-13, lines 1 – 27.

Close

Editorial Notes

  • Published Case Name:

    Triple One Group Pty Ltd t/as Robert James Realty v Aumuller & ors

  • Shortened Case Name:

    Triple One Group Pty Ltd t/as Robert James Realty v Aumuller & ors

  • MNC:

    [2016] QCATA 190

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe OAM

  • Date:

    06 Dec 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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