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L J Hooker Cleveland v Sellen QCATA 201
L J Hooker Cleveland v Sellen  QCATA 201
L J Hooker Cleveland
On the papers
Senior Member Stilgoe OAM
20 December 2016
APPEAL – LEAVE TO APPEAL – LANDLORD AND TENANT – RESIDENTIAL TENANICES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR TENANTS – TOERH MATTERS – where agent required payment of bond before giving tenant copy of tenancy agreement – where tenant terminated tenancy agreement before residing in tenancy – where agent kept the bond – where tribunal found tenancy agreement void – whether error – whether grounds for leave to appeal
APPEAL – LEAVE TO APPEAL – PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERROTIRY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – where evidence available not presented to the tribunal until late in the hearing – where tribunal refused to accept evidence on grounds of procedural fairness – whether error by the tribunal – whether grounds for leave to appeal
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i).
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 53, s 54, s 58(1)(a)(ii), s 61, s 62, s 206
Chambers v Jobling (1986) 7 NSWLR 1
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur  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
- Matthew and Emily Sellen successfully submitted an application to rent a home managed by L J Hooker Cleveland. Once the application had been accepted, Ms Sellen inspected the home. Dr Matthew Sellen did not.
- Ms McMahon, from L J Hooker, initially told the Sellens that the tenancy agreement could be signed on Monday 19 February 2016. However, the time for signing the agreement was changed to Saturday, 17 February 2016. Ms Sellen could not attend. Dr Sellen did attend and, after paying the bond and two weeks’ rent in advance, he was given a copy of the tenancy agreement, which he signed.
- Dr and Ms Sellen inspected the home later on Saturday and found a number of cane toads in the yard. They have a Jack Russell, which, according to the tenancy agreement, had to be kept outside and they were concerned for the dog’s safety. On Monday, 19 February, the Sellens advised L Hooker that they were terminating the tenancy agreement.
- L J Hooker kept the bond. The Sellens applied for a refund. The tribunal ordered L J Hooker refund the bond and the rent the Sellens paid in advance.
- L J Hooker 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. 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.
- L J Hooker says it was not permitted to provide vital evidence to the tribunal because the Adjudicator ‘kept shutting them down’. It says the tribunal erred in refusing to join the lessors as parties to the proceeding. It says the tribunal erred in fact.
Was L J Hooker prevented from providing evidence to the tribunal?
- In its submissions, L J Hooker states that it was not aware that documents ‘classed as evidence’ should be sent to the other side prior to a hearing. It is true that there is nothing in the QCAT Act or Rules that require this but I am surprised that a professional agency, with an apparently large rent roll, is not aware that it is good practice to deliver material ahead of time.
- The tribunal took Ms McMahon to task for failing to assist the Sellens in exiting the tenancy at minimum cost. At that point, Ms McMahon told the tribunal she had ‘lots of emails in regards to correspondence with the tenants.’ The tribunal did not accept that material because the Sellens had not seen copies and, therefore, were not able to respond to it.
- There is no doubt that the Adjudicator’s manner towards L J Hooker was abrupt. There is no doubt that the Adjudicator unnecessarily criticised L J Hooker’s business practices. There is no doubt that the Adjudicator took a ‘softer’ approach when dealing with the Sellens. However, the tribunal was correct in refusing to accept evidence that could have been provided earlier and where accepting the evidence may have been procedurally unfair to the Sellens.
- The tribunal was not in error.
Did the tribunal err in refusing to join the lessors as parties to the application?
- On the day of the hearing, the lessors of the premises, David William Dittmer and Cheyenne Temananui Nikora, applied to be joined as parties to the proceeding. They both nominated L J Hooker as their representative at the hearing. The only reason given for the application was that they were the owners of the premises.
- That is not, in itself, a good reason to join the lessors. Section 206 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) states that, if the lessor has an agent who is authorised to stand in the lessor’s place, and the tenancy agreement nominates the agent’s name and address for service, the agent may stand in the place of the lessor.
- The tribunal was correct in finding that, as L J Hooker had conduct of the tenancy, the lessors would not add anything to the hearing. However, where there is a possibility of a compensation order in favour of the tenant, it is not uncommon for the lessor to be substituted as a party, instead of the agent.
- The tribunal’s observation that the lessors would add nothing to the hearing was not a good enough reason to refuse an application to join them, particularly when the lessors themselves, and not L J Hooker, made the application. The tribunal was in error.
- The tribunal was not correct in finding, or ordering, that the principal of L J Hooker should be personally liable for the compensation. L J Hooker Cleveland is a business name registered to a company. The tribunal might have made an order against the company, if it had been disclosed to it, but it could not, in these proceedings, make an order against the principal. The tribunal might, in other proceedings, make an order against the principal for a breach of the Residential Tenancies and Rooming Accommodation Act but this tribunal, in these proceedings, did not have that jurisdiction.
Did the tribunal err in its findings of fact?
- Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it. An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.
- The matters that L J Hooker raises in its submission are not matters that give rise to an error of fact by the tribunal. I agree, however, that the tribunal’s gratuitous comments such as those that follow are unnecessary and inappropriate:
No one ever reads leases. I take it you read the front page I suppose?
It’s a trap.
…but he has exposed himself to the penalties provided by the Act which I have read out today. I don’t know whether he’s aware of that, but most principals take that seriously. The money’s paltry for a large agency, but very many of them are concerned about their reputations and the fact that they are penalised by the RTA is something they take very seriously.
- Those comments do highlight the tribunal’s real error. The evidence shows that, in breach of s 58(1)(a)(ii) of the Residential Tenancies and Rooming Accommodation Act, Ms McMahon asked Dr Sellen to pay the bond and rent before she gave him a copy of the tenancy agreement. That attracts a penalty but the tribunal found that, because of the breach, the tenancy agreement was void.
- Section 61, to which the tribunal referred, requires a tenancy agreement to be in writing. Contrary to the tribunal’s findings, the agreement was in writing. Section 62 requires the lessor’s agent to give the written tenancy agreement to the tenant on or before the day the tenant occupies the premises under the agreement. Ms McMahon did comply with that requirement.
- Importantly, none of these sections state that a breach of the Act makes the agreement void. Section 53 states that an agreement is void to the extent that it purports to exclude, change or restrict, the application or operation of a provision of the Act. Section 54 states that a provision that is inconsistent with a provision of the Act is void. But a breach of a provision that attracts a penalty merely attracts a penalty.
- The tribunal’s thinking about the claim for compensation was fatally coloured by its erroneous finding that the tenancy agreement was void. The tribunal was in error. Leave to appeal should be granted, the appeal allowed and the proceeding returned to the tribunal, differently constituted, for rehearing. Further, the lessors, David William Dittmer and Cheyenne Temananui Nikora, should be joined as parties to the proceeding.
 QCAT Act, s 142(3)(a)(i).
 Pickering v McArthur  QCA 294 at .
 Transcript page 1-4, lines 10 – 17.
 Transcript page 1-12, lines 10 – 22.
 Transcript page 1-21, lines 22 – 27.
 Transcript page 1-21, lines 29 – 30.
 Transcript page 1-22, lines 22 – 47.
 Transcript page 1-18, lines 28 – 40.
 Transcript page 1-18, lines 44 – 47; page 1-42, lines 41 – 47.
Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
 Chambers v Jobling (1986) 7 NSWLR 1 at 10.
 Transcript page 1-7, lines 46 – 47.
 Transcript page 1-22, line 34.
 Transcript page 1-42, lines 42 – 47.
- Published Case Name:
L J Hooker Cleveland v Sellen
- Shortened Case Name:
L J Hooker Cleveland v Sellen
 QCATA 201
Senior Member Stilgoe OAM
20 Dec 2016