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Bell v Metelerkamp QCATA 62
Bell v Metelerkamp  QCATA 62
Application and Appeals
5 April 2017
16 May 2017
THE APPEAL TRIBUNAL ORDERS THAT:
APPEAL – LEAVE TO APPEAL – where the applicant sought leave to appeal termination order – where the applicant failed to appear at the hearing but later voluntarily vacated the premises – where no demonstrated error or miscarriage of justice to applicant due to potential for tenancy database listing – where leave not justified to “correct” applicant’s tenancy record, protect his reputation as a tenant or restrain adverse listing by agent to prevent future rental disadvantage
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 28, 29, 139
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), ss 280, 281, 293, 338, 459, 462
Fitzmaurice v GM & JM Holland t/a Cooloola Cabins & Caravan Park  QCATA 178
APPEARANCES and REPRESENTATION (if any):
C Lepp for the applicant
V Gray-Gorman for the respondent
REASONS FOR DECISION
- An evicted tenant applies for leave to appeal a tribunal decision to make an order terminating a residential tenancy agreement under Ch 5, Pt 1, Div 6 of the Residential Tenancies and Rooming Act 2008 (Qld) (the RTRA Act).
- He claims that contrary to ss 28 - 29 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) the tribunal acted unfairly in not hearing from him or otherwise fully inform itself of all material considerations before making the order.
- A tribunal may make a termination order for non-compliance with notice to leave for tenants breach if the ground of the application and notice to leave is established and it is otherwise appropriate. A relevant factor informing the termination discretion is whether refusal to consent to a request to increase the number of approved occupants of the premises is being unreasonably withheld.
- The tenancy was for a 12 month fixed term from 11 March 2016 to 9 March 2017.
- The lease agreement limited the number of occupants to no more than the stated number of five.
- The approved occupants were named in the special terms as the applicant and his four dependent children.
- Any request to vary the approved occupants required the lessor’s written consent which could not be unreasonably withheld.
- The applicant claims that he intended to apply for approval and add his disability carer as an occupant of the premises but never got around to it.
- The lessor’s agent suspected that the applicant was also permitting his carer to reside at the premises without permission.
- A Form 12 was issued on 23 August 2016 requiring the breach be remedied by 22 August 2016.
- Tuesday 2 September 2016 was nominated as the handover date.
- The lessor’s termination application was set down for hearing on 26 September 2016.
The tribunal proceedings
- The applicant appeared on the hearing date and told the tribunal that he intended vacating when the lease expired in March 2017 and had already started looking for alternative accommodation. This tribunal observed “the end is nigh”.
- The tribunal had clearly read the file and relevant email correspondence between the applicant and the lessor’s agent about the matter and before hearing any evidence or submissions from either side remarked:
“that (cl 23) beats you right there. No matter how you dress up the other occupant, whether she’s your girlfriend or not, you’re beat there…”
- The applicant did not dispute that he was technically in breach because more than the stated number were residing at the premises. He said he wanted to move out as soon as practical. The main concern he voiced was not having “anything on my record” that would prevent him from renting somewhere else.
- Letting agents can list defaulting tenants on a database informing other agents with access rights of rental history including court ordered terminations for unremedied breach.
- Obviously, an adverse listing can prejudice future rental applications.
- Mindful of this (and without objection) the tribunal adjourned the hearing of the termination application to 2 pm on 7 November 2016 to give the applicant an extra six weeks to leave early without penalty.
- The agent could not recall what the tribunal was told in the ex parte proceeding. Nor is there any evidence of any material findings or reasons concerning the termination order.
- On the best information available to me the applicant gave up vacant possession and handed in the keys to the premises at about 4:30 pm on the adjourned date.
- By then, however, the tribunal had made the termination order by default (but did not issue an enforcement warrant) evidently unaware that voluntary hand over was imminent.
- I cannot imagine that the order would have been made otherwise.
- The applicant is understandingly aggrieved that the making of the termination order is a publicly available tribunal record and is concerned about the potential undesirable consequences for his family.
- Hence, the application for leave to appeal is made to ‘correct the record’ and remedy what is seen as a serious injustice due to vitiating procedural error and non-compliance with mandatory statutory demands.
The appeal application
- It is submitted by the applicant’s legal representative, Ms Christine Lepp, that the tenancy breach (which I find not genuinely contested) was remedied before termination or that the tribunal wrongly exercised its termination discretion without making evidence based findings of fact or considering all relevant factors for and against.
- She says that the applicant had a good argument that the breach, if proven, did not justify tribunal ordered termination and that forcefully evicting a disabled veteran with four dependent children just because an unapproved carer was sharing the premises was unreasonable because of the extreme hardship a family facing the real prospect of homelessness could suffer.
- Some comments the tribunal made on the 26 September 2016 were interpreted by the applicant as implying that the tribunal had predetermined the termination issues with the result that the applicant unwillingly left the premises because he felt pressured to do so by the tribunal not because he wanted to and despite that there is a real chance that he will be ‘black listed’ by the agent anyway.
- The following exchange is recorded at Transcript at 1-6: 12-35:
“BENCH: Now, I’ve got to tell you something else I’m going to put on the file. So the first thing is that there’s a – of the standard conditions, there’s a breach. There’s a breach of item 23. So I’ve adjourned it to the 7th of the 11th ’16 for the – you to relocate – vacate. Now, what I have done, though, is that, if that hasn’t happened, is leave granted for the applicant to ask for the termination and a warrant without further notice or further notice to you, okay? Do you understand that?
MR BELL: Yes, I understand, your Honour.
BENCH: So the maximum timeframe will be the 7th November, plus two weeks. But hopefully, you can organise something before the 7th of the 11th.
MR BELL: Yeah, my concern is just that there’s no blemish on my record [indistinct] and it leaves me in a position when I can apply for other accommodation.
BENCH: I can’t see how there can be when the – when – notwithstanding there’s a breach, but it’s not about you, I detect. But I can’t understand how there could be if there’s no arrears or any outstanding issues as at the end of the tenancy. Would you agree?
MR BELL: Absolutely.”
- The tribunal was clearly satisfied of the breach. That conclusion was plainly open on the available information and not seriously contested by the applicant.
- The tribunal granted the lessors leave to renew the termination application on the adjourned date without notice. His Honour did not say anything that could reasonably be taken to imply that the tribunal ordered termination was a fait accompli in the event that the applicant had not moved out by then.
- I can, however, see how the applicant may well have thought that the tribunal had decided to force him out four months early but, with the benefit of the record of proceedings, I think he misconstrued what the tribunal meant and acted to his potential detriment in doing so.
- I infer that he didn’t attend the adjourned hearing because he didn’t think he had to. No doubt he resolved that since he was vacating anyway, it was no longer necessary (at least in his mind) for the tribunal to consider terminating the tenancy agreement.
- That no doubt was a reasonable belief but it did not relieve him of the obligation of appearing and updating the tribunal of his intentions.
- He may reasonably have assumed that a termination order was inevitable and that nothing he could have said would have made a difference but we will never know.
- By not attending the applicant lost or surrendered his opportunity to be heard against the termination order by his own actions not because an uncompromising agent renewed instead of withdrew the application or unfairness (or apprehended bias) on the tribunal’s part.
- What is known is that a termination order was made in circumstances where everyone was bending over backwards to avoid it and it would probably not have been made if the applicant appeared. Despite this there seems to be a conspiracy of circumstances here that produced an unwanted result – the making of a termination order against the applicant for unremedied breach.
- The function of an appeal is to remedy miscarriages of justice due to procedural, legal, factual or discretionary error.
- As to procedural error the tribunal is obliged to act fairly the minimum requirement is to give the parties the opportunity of being heard. The tribunal did that here. While it is possible that persuaded the tribunal against making a termination order because any breach did not call for it or for some other reason the tribunal cannot make any appellable error by ignoring or undervaluing the significance of evidence it did not have or submissions that were not made.
- Granting leave to advance arguments bound to fail is pointless.
- However, the problem of whether there is any alternative way of undoing the termination order and its practical detrimental effect remains.
- The tribunal could have been asked to reopen under s 139 of the QCAT Act before starting the appeal proceeding but not now.
- Listing him or any personal information relating to the termination order or the grounds on which it was made or applied for would, in the unique circumstances of this case, be seriously unjust and any proposal to do so is discouraged.
- Notably, the applicant has a right to apply to the tribunal for an order removing any listing of his on the ground that it is incorrect, misleading or unjust.
- However, I am optimistic it will not come to that. On this basis, the only impediment to the applicant’s future rental prospects is the tribunal records but, as I said, the order was made because the applicant did not turn up on the 9 November 2016 leading to oppose any renewal of the termination application by the agent not because it was renewed (even though doing so was premature) or granted.
- The applicant’s own stated position has always been that he did not object to a tribunal order terminating the tenancy early per se just not on the grounds of unremedied breach. The tribunal record of the termination order does not specify the grounds.
- Thus, for all practical intents and purposes the applicant appears to have got what he wanted.
- The application for leave to appeal is refused.
 RTRA Act.
 RTRA Act s 338(2).
 Fitzmaurice v GM & JM Holland t/a Cooloola Cabins & Caravan Park  QCATA 178.
 Part 3 Tenancy Agreement.
 Clause 23; Item 15, Tenancy Agreement.
 Clause 45, Tenancy Agreement.
 RTRA Act ss 280, 281, 293.
 Clause 23; Item 15, Tenancy Agreement.
 Transcript at 1-2: 40.
 Transcript at 1-4: 27, 45.
 QCAT Act ss 28-29.
 Although it was later impliedly withdrawn it was even conceded at one point in argument.
 QCAT Act s 139(5).
 RTRA Act s 462(2).
 RTRA Act s 462(2)(c).
 RTRA Act s 459(1)(c).
- Published Case Name:
Travis Bell v Timothy Metelerkamp
- Shortened Case Name:
Bell v Metelerkamp
 QCATA 62
16 May 2017