Exit Distraction Free Reading Mode
- Unreported Judgment
Hassard v McInnes QCATA 21
Hassard v McInnes  QCATA 21
22 September 2015
2 February 2016
THE TRIBUNAL ORDERS THAT:
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – PERIODIC LEASE – UNLAWFUL TERMINATION – COMPENSATION – where the applicant and respondent entered into a period lease agreement for the respondent to lease certain premises co–owned by the applicant – where the applicant received information prior to the respondent assuming possession of the premises adverse to the respondent – where the applicant refused to allow the respondent to assume possession of the premises – where the respondent was required to obtain alternative accommodation at a higher rent than the accommodation offered by the applicant – where the respondent filed proceedings in the Magistrates Court at Maroochydore, exercising the original jurisdiction of QCAT, seeking compensation for losses incurred as a result of the wrongful termination of the lease agreement by the applicant – where the Magistrate granted compensation to the respondent for the full amount of rent incurred within a nine week period following the date on which the respondent would have assumed possession of the accommodation – where the respondent appeared to have been placed in a better position than she would have been but for the breach of the period lease agreement by the applicant – where the Magistrate appeared to miscalculate the number of weeks in respect of which compensation should have been awarded – whether the Magistrate committed an error of law in failing to apply appropriate restitutionary principles to the calculation of compensation – whether the Magistrate committed an error law, or a mixed error of law and fact, in incorrectly calculating the notice period – whether the Magistrate denied the applicant procedural fairness by failing to provide a fulsome oral hearing – whether the leave to appeal should be granted and the appeal allowed.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, 4, 20, 142, 146, 147
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 182, 291, 421
Albrecht v Ainsworth & Ors  QCA 220
Commonwealth v Amann Aviation Pty Ltd  174 CLR 64
Ericson and Queensland Building and Construction Commission  QCA 297
Ericson v Queensland Building Services Authority  QCA 391
I&L Securities v HTW Valuers  HCA 41
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Pivovarova v Michelsen  QCATA 73
R (West) v Parole Board  1 WLR 350
Scholefield v High Surf Resorts Pty Ltd t/as Beachcomber Surfers Paradise  QCAT 233
State of Queensland v Tapim  QCATA 71
Van Cuylenburg and Tablelands Regional Council  QCATA 60
APPEARANCES and REPRESENTATION (if any):
Mr D Hassard (self-represented)
Ms Tammie McInnes (self-represented)
REASONS FOR DECISION
- The applicant applies for leave to appeal the decision of Magistrate Hennessy exercising tribunal jurisdiction in a residential tenancy dispute.
- The related order directs the applicant to pay the respondent $4,710.00 comprising $4,255.00 rent, $350.00 storage costs and $105.00 filing fee. Compliance is stayed pending the outcome of this application.
- The applicant and Mrs Davies, are absentee landlords who agreed to lease premises they co-own on the Sunshine Coast to the respondent, Ms McInnes, for a periodic term starting on 11 April 2015 at $350.00 a week. The other respondent, Peter Kennedy Realty Pty Ltd, was the letting agent until 30 April 2015 when its retainer was terminated. The applicant represented the landlords’ interests in both the original and appeal proceedings. The agent also appeared at the hearing.
- In the result the applicant was held “wholly responsible” for the claim. No order was made against the agent or the co-owner who the magistrate found based on the applicant’s own written statement was involved in the property “in name only.”
- The grounds of appeal are not clearly articulated in the Form 32 but based on what emerged during the oral hearing the applicant’s complaints appear to be:
- breach of the hearing rule and other procedural irregularities; and
- incorrect calculation of the compensation payable.
THE NATURE OF JUSTICE
- The applicant complained bitterly about being denied procedural fairness. His case is that he was tricked into agreeing to the tenancy agreement by misrepresentations made by the agent about the respondent’s suitability as a tenant. He contends that if he is liable to pay any compensation for repudiating the tenancy he should be indemnified to the full extent of that liability by the agent for breach of duty. He also asserts that because he is only a co-lessor Ms Davies is legally liable to contribute equally to any just compensation.
- The validity of these claims depends entirely on un-investigated and unresolved facts. The transcript suggests that the applicant did not have the hearing he was legitimately entitled to expect. It looks as though the tribunal called the matter on and immediately began reading out her decision based on the written submissions without an oral hearing.
- The stated objects of the tribunal are to deal with matters before it in a way that is accessible, fair, just, economical and quick. To achieve these ends the tribunal conducts proceedings, particularly minor civil dispute hearings, much more informally (but not casually) and effectively than traditional court proceedings. The tribunal is not bound by the customary rules of evidence and may inform itself in any way it considers appropriate. However, the requirements of natural justice must still be observed so that the alternative dispute resolution methods of the tribunal are not only fast and economical but are also accessible, fair and just.
- Other provisions in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) emphasise the importance of the hearing rule. Section 29(1)(a)(ii) for example imposes a duty on the tribunal (at first instance and on appeal) to ensure each party to a proceeding is conversant with the contested issues and their legal implications and take steps to understand a litigants actions, stated views and assertions. Consistently with Sections 3(b), 28(3) and 29, Section 95(1) provides for a reasonable chance to call or give evidence and make submissions. Failure to give parties a proper opportunity to present their case amounts deprives ‘decision’ of its legal foundation making it ‘no decision at all’.
- Fairness called for an oral hearing to resolve disputed facts, assess the respondent’s excuse for his actions and address the issues the decision-maker regards as pertinent.
THE COST OF BROKEN PROMISES
- Mrs McInnes’ claim was based on a breach of the standard vacant possession clause by the lessors. The applicant broke the lease before even granting possession (he says) to protect the premises against any anticipatory breach of the respondent’s obligation not to damage the premises or behave objectionably. However, to meet statutory requirements and end the lease regularly the applicant should have given notice to leave without ground with a handover not before 11 June 2015.
- The Tribunal rightly found that:
irrespective of any reasons given for the refusal of the tenant taking up possession under the tenancy agreement which had been properly executed by the owner and/or the agent during the period of the tenancy should have followed the proper procedures under the Residential Tenancies and Rooming Accommodation Act 2008 to terminate the tenancy with or without grounds and none of that occurred.
- She is entitled to be compensated for the two months’ notice period prescribed under s 329(2)(j) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) for a lessor’s notice to leave without ground in respect of a periodic lease.
- However, compensation of $4,955.00 was claimed for having to rent alternative accommodation between 11 April 2015 and 9 May 2015 $700 for 2 months storage costs plus the filing fee of $105.00.
- Section 421 identifies the factors guiding the quantum of compensation awards to an aggrieved lessor by a defaulting tenant but there is no similar criteria for the reverse situation. As Member Howe pointed out in Scholefield v High Surf Resorts Pty Ltd t/as Beachcomber Surfers Paradise an award of statutory compensation to a tenant is calculated on a different and sometimes more generous basis than damages in actions for breach of contract or in tort. Compensable loss may, for example, be non-economic.
- Practical difficulties in calculating quantum do not justify not making a fair compensation order. The respondent is entitled to reimbursement for any extra rent or additional financial losses incurred as a natural consequence of the wrongful termination, including storage expences.
- The original decision-maker calculated the compensation payable by the applicant to the respondent for rent as $4,255.00. Although limited information was provided regarding the method for calculation, it appears to contemplate $700.00 for the first weeks’ rent, and $395.00 per week for the following nine weeks’ rent.
- This method of calculation is flawed because:
- the respondent should only be entitled to the difference in the rent that she would have paid for the applicant’s accommodation, and the amount that she was required to pay by reason of the applicant’s wrongful termination of the periodic lease agreement; and
- the respondent should only be entitled to compensation for the notice period prescribed under the Act, which is nine weeks.
- The correct measurement of compensation payable by the applicant to the respondent for loss caused by wrongful termination is:
- First week’s rent: $700.00 - $350.00;
- Second to ninth weeks’ rent: ($395.00 - $350.00) x (9 - 1);
- One month’s storage fee: $350.00; and
- Filing fee: $105.00.
- The respondent now concedes that the compensation order is overly generous. She admits being entitled at the most in total to $1,935.00 ($1,235.00 being the difference of two (2) months’ rent in lieu of proper termination notice for comparable alternative accommodation and the full $700.00 it cost her to store her belongings between April and May 2015).
- However, the tribunal found ‘that only one month (storage) was occasioned as a result of (the applicant’s) actions.’ The respondent has not cross-appealed against that finding although she is aggrieved by it. Accordingly, on the best case scenario the compensation due to the respondent for proven breach is $1,585.00 and even that figure could justifiably be reduced by only allowing filing fees on a pro rata basis to reflect the significant disparity between amounts claimed and recovered.
- Thus, leave to appeal is warranted to remedy a substantial injustice to the applicant due to correct the miscalculation of the amount of monetary compensation payable.
DISPOSING OF THE APPEAL
- A distinction is drawn between the appeal, and the application seeking leave to appeal. Where leave is required, the appeal does not commence until leave to appeal is granted. Any other construction of the appellate process is incompatible with the realities of appellate practice, and would render the procedural requirement of leave redundant.
- Accordingly, a question of law or fact, or a mixed question of law and fact, will only be raised in the appeal where, assuming leave is necessary, leave to appeal is granted in respect of the relevant question. If leave to appeal is not granted in respect of a question requiring leave of the Appeal Tribunal, it will not be a question raised in the appeal.
- The distinction between a question of law and mixed question of law and fact may appear artificial or sophistical, but remains a critical substructure of the categorical grammar underpinning the jurisdictional architecture of the Appeal Tribunal. It is a factor defining the anterior requirement for leave to appeal and the powers of the Appeal Tribunal on granting an appeal.
- The deprivation of natural justice constitutes an error of law. Although an applicant must establish certain facts relating to the administration of the hearing on the balance of probabilities, procedural fairness is a requirement prescribed by the common law. Therefore, the ground of appeal claiming that the Magistrate deprived the respondent of natural justice by failing to provide a sufficient oral hearing gives rise to a question of law.
- Categorising the nature of the incorrect determination of the quantum of compensation, however, is a more complex and sophisticated exercise. An erroneous application of the legal principles relating to the basis for, and quantification of, compensation constitutes an error of law. However, an erroneous finding of the facts giving rise to the liability to pay compensation, or in determining the amount of compensation payable, is an error of fact.
- The Appeal Tribunal is of the view that the original decision-maker found the facts correctly, but misapplied the legal principles relating to the calculation of compensation. This constitutes an error of law.
- As the original decision is infected by legal error, the Appeal Tribunal must remit the matter for reconsideration, unless the Appeal Tribunal is of the view that the resolution of the points of law dispose of the matter, or that all of the relevant facts were correctly found by the original decision-maker.
- The applicant has unresolved claims regarding the conduct of a real estate agent and the liability of the co-owner. The Appeal Tribunal is not in a position to substitute its own decision for that of the Tribunal in respect of such outstanding claims.
- The decision and orders of the Tribunal should be set aside, and the matter should be remitted for reconsideration by a differently constituted Tribunal.
- It is the decision of the Appeal Tribunal that:
- Leave to appeal granted.
- Appeal allowed.
- The decision and orders of the original decision-maker, dated 14 May 2015, in MCD127-15 are set aside.
- MCD127-15 is remitted to be reconsidered by a differently constituted Tribunal.
 Transcript 1 – 3:25.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b).
 Ibid, ss 4(c), s 28(3)(d).
 Ibid, s 20(3)(c).
 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597,  and .
 R (West) v Parole Board  1 WLR 350.
  QCAT 233, . See the approach in I&L Securities v HTW Valuers  HCA 41,  regarding compensation under the Trade Practices Act 1974 (Cth) (repealed).
 Commonwealth v Amann Aviation Pty Ltd  174 CLR 64.
For a discussion of the trichotomy and its jurisdictional significance for the Appeal Tribunal, see: Ericson v Queensland Building Services Authority  QCA 391, ; Ericson and Queensland Building and Construction Commission  QCA 297, ; State of Queensland v Tapim  QCATA 71, -; Van Cuylenberg and Tablelands Regional Council  QCATA 60, ; Pivovarova v Michelsen  QCATA 73, ; Albrecht v Ainsworth & Ors  QCA 220, .
 Queensland Civil and Administrative Tribunal 2009 (Qld), s 146; Ericson v Queensland Building Services Authority  QCA 391; Ericson and Queensland Building and Construction Commission  QCA 297.
- Published Case Name:
David Hassard v Tammie McInnes
- Shortened Case Name:
Hassard v McInnes
 QCATA 21
02 Feb 2016