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Hicks v Lovett QCATA 179
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Hicks v Lovett  QCATA 179
ORIGINATING APPLICATION NO/S:
5 November 2019
13 August 2019
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – where application for leave to appeal – where the provider of rooming accommodation terminated a rooming accommodation agreement on the day of issue of a notice to leave – where notice to leave given because the provider believed the resident had threatened to start a fire – where the resident claimed return of the bond – where the provider made a counter application for compensation equal to the bond – where Justices of the Peace found the provider had not tendered sufficient evidence – where the provider had in fact filed evidence – whether the provider gave the resident appropriate notice to leave – where the provider’s claims to compensation required further evidence to assess them – where the matter should be returned to the tribunal for further consideration
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 370
Pickering v McArthur  QCA 294
APPEARANCES & REPRESENTATION:
B Darling of Tenants Qld
REASONS FOR DECISION
- Mr Hicks provides rooming accommodation in a rooming house in Brisbane. Mr Lovett was a resident.
- In December 2017 Mr Hicks asked Mr Lovett to leave because Mr Hicks was told Mr Lovett had threatened to start a fire in his room. Mr Lovett left.
- Mr Lovett commenced proceedings in the tribunal seeking recovery of a bond of $680 he had paid for one of the rooms at the premises.
- Mr Hicks filed a counter application also claiming the bond to cover the costs of outstanding rent, a relet fee, cleaning charges and for other items of compensation.
- The matter was heard before Justices of the Peace on 4 July 2018 with the Justices of the Peace ordering that Mr Hicks should be paid $171.42 from that bond and the balance paid to Mr Lovett.
- Mr Hicks has filed an application seeking leave to appeal and appeal that decision.
- Given this is an appeal from a decision made in the tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.
- Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice and where there is a reasonable argument that there is an error to be corrected. There may be other relevant considerations, but these are the primary ones.
- The application for leave to appeal was heard on 12 August 2019.
- The grounds of appeal are confusing and lack precision which is not unusual with self-represented litigants. However at hearing Mr Hicks clarified they are to be understood as follows:
- (a)the tribunal erred in finding Mr Hicks was not entitled to recover anything more than rent up to date of eviction;
- (b)the tribunal erred in finding it was a requirement for a provider to provide a resident with receipts for rent under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘the Act’);
- (c)the tribunal erred in finding no entry or exit condition reports were made available in evidence when they were;
- (d)the tribunal erred in finding there were no rooming accommodation agreements available in evidence when they were;
- (e)the tribunal erred in finding that Mr Hicks had failed to give the appropriate notice to leave to Mr Lovett;
- (f)the tribunal erred in refusing to award compensation for work done cleaning and repairing after Mr Lovett vacated the room on the basis there were no receipts available for the cost of the work available in evidence when they were.
Ground 1 – the tribunal erred in finding Mr Hicks was not entitled to recover anything more than rent up to date of eviction;
Ground 5 – the tribunal erred in finding that Mr Hicks had failed to give the appropriate notice to leave to Mr Lovett;
- It is convenient to deal with both grounds one and five together.
- The Justices of the Peace said in their reasons for decision that on the night of 2 December 2017 there was an incident. Mr Hicks then evicted Mr Lovett. Therefore, in their view ‘by eviction, he has no right to a reletting fee or any compensation to additional rent.’
- There was no explanation why that conclusion was reached. Eviction is obviously intended to refer to telling Mr Lovett to immediately leave the premises, which event was not disputed before the Justices of the Peace. Mr Lovett said he was asked by police called to the premises by Mr Hicks to leave and he agreed.
- By s 370 of the Act a provider may give a resident a written notice requiring the resident to leave the premises immediately if the provider reasonably believes the resident has intentionally or recklessly destroyed or seriously damaged part of the rental premises, or endangered another person in the rental premises, or significantly interfered with the reasonable peace, comfort or privacy of another resident.
- Mr Hicks filed with his counter application a copy of a notice to leave form R12 issued on the evening in question, 2 December 2017. The grounds stated are that Mr Lovett interfered with the reasonable peace, comfort or privacy of another tenant. It sets out that he threatened to start a fire inside and police and fire brigade were called.
- That form R12 was not referred to by the Justices of the Peace in their decision. They do not appear to have considered it or considered the incident they referred to in formulating and then giving their reasons for decision. At the hearing Mr Hicks claimed Mr Lovett had threatened to start a fire in his room after fighting or arguing with another female resident at the premises. He had sent her an SMS saying what he proposed to do. She told Mr Hicks. Mr Hicks called the police. He handed Mr Lovett the form R12 notice to leave and Mr Lovett left that night.
- This evidence from Mr Hicks, if accepted, strongly suggests he was entitled to give the notice to leave to Mr Lovett, and the basis of the rejection of his claims to compensation and illegal eviction thereafter fall away. His claims for small items of repair, compensation for rent until a new resident was found and a separate ‘cost of relet’ fee (though there was no documentary evidence to support the latter in the material filed by Mr Hicks) may have been allowed had the Justices of the Peace properly considered the termination provisions in the Act that apply to rooming accommodation agreements.
- Unlike residential tenancy agreements, rooming accommodation agreements are by their nature subject to summary termination effected through the police, bypassing the tribunal. There is no provision in the Act for applications to the tribunal for termination of rooming accommodation agreements. Rather (subject to an appropriate notice to leave being given) the provider may request assistance directly from police to remove a resident. Such removal may subsequently be considered by the tribunal on an application for compensation brought by the resident.
- The Justices of the Peace do not appear to have considered this. It seems clear therefore that they made a mistake in refusing the claim for compensation by Mr Hicks simply on the basis of the ‘eviction’. They made an error of fact and law.
Ground 2 - the tribunal erred in finding it was a requirement that a provider give a resident receipts for rent under the Act;
- The Justices of the Peace found that the lack of evidence from Mr Hicks prejudiced his case. During the hearing the Justices of the Peace queried whether there were any receipts for rent and Mr Lovett said he had not received any. Nothing more was said about that by the Justices of the Peace.
- It is hard to understand what Mr Hicks’ complaint about this is. There is no valid complaint about the decision of the Justices of the Peace on this ground. He was awarded the outstanding rent up until the date of departure despite the absence of receipts, as claimed.
- There is no error in the decision by the Justices of the Peace that needs to be corrected.
Ground 3 - the tribunal erred in finding no entry or exit condition reports were made available in evidence when they were;
Ground 4 - the tribunal erred in finding there were no rooming accommodation agreements available in evidence when they were;
Ground 6 - the tribunal erred in refusing to award compensation for work done cleaning and repairing after Mr Lovett vacated the room on the basis there were no receipts available for the cost of the work available in evidence when they were.
- The remaining grounds of appeal are also appropriately considered together.
- Mr Hicks filed various documents with his counter application. He filed a number of copies of rooming accommodation agreements, a Residential Tenancies Authority notice of conciliation, a copy of a rental ledger, a photocopy of an SMS message appearing on a mobile telephone screen, a Centrelink ledger, a form R12 notice to leave and a bond lodgement document.
- As stated, it is puzzling why the Justices of the Peace found the lack of evidence produced by Mr Hicks prejudiced his case. Whilst the evidence itself is a little hard to follow that is not unusual in minor civil dispute matters. It appears the Justices of the Peace simply did not realize Mr Hicks had filed some documents under cover of his counter application. They thereby fell into error of fact and law in their conclusion that Mr Hick’s claims to compensation other than for arrears of rent were compromised through lack of evidence and on that basis they refused them.
- There were submissions made at the appeal on behalf of Mr Lovett to the effect that whilst Mr Lovett did not contest additional documentation was in fact available to the Justices of the Peace though they thought it was not, the documents were not persuasive and they were inadequate. It is argued the Justices of the Peace were entitled to make the findings of fact they did on the evidence they thought they had before them based on weight and credibility.
- But the decision was not based on the evidence before the tribunal. That is the point of Mr Hick’s objection and the subject grounds of appeal. The authorities cited on behalf of Mr Lovett in written submissions filed 16 October 2018 are no authority for the flawed proposition which is effectively that if a decision accords with one party’s contentions, though the other party’s evidence was not considered and the decision based wrongly on the latter party’s supposed failure to adduce evidence, the decision reached may nevertheless be correct. That is patently wrong.
- The Justices of the Peace have fallen into error which must be corrected.
Leave to appeal
- A substantial injustice appears to have been done to Mr Hicks. Leave to appeal must be granted.
- Mr Hicks sought leave to rely on fresh evidence at the appeal.
- There have been submissions made on behalf of Mr Lovett opposing the application. They are, put shortly, that the evidence was reasonably available to the appellant at the time of hearing; they would not have had a significant impact on the outcome of the case if considered; and the evidence is not relevant to the claims made by the appellant.
- The material principally consists of a long chain of SMS messages which appear to support the claim that Mr Lovett threatened to start a fire in his room. To that extent it would have a significant impact on the outcome of the case and be relevant.
- Mr Hicks admits the material he seeks to lead now on appeal was available at the hearing but he says he was not given the appropriate opportunity to present it.
- The Justices of the Peace asked Mr Hicks if he had any invoices or receipts for the repairs. He said he did not because he effected the minor repairs himself. He was asked to hand up a copy of an entry and exit condition report and he apparently handed copies of that up. He was asked about a tenant’s ledger and he said he had that and a Centrepay statement.
- He handed up a copy of the Form R12 of 2 December 2017 in response to a question about when Mr Lovett left.
- Mr Hicks also told the Justices of the Peace that he had a lot of messages on his telephone about the messaging from Mr Lovett ending with the threat to start a fire. He pointed out that he had included a hardcopy of the relevant message in his counter application.
- From the transcript it is clear Mr Hicks had the opportunity and took the opportunity to hand up material quite freely at the hearing. I am unable to conclude that Mr Hicks was denied the opportunity to lead such evidence as he determined was appropriate to the hearing.
- It seems the SMS messages now sought to be relied on as fresh evidence were not in hard copy on the day of the hearing anyway. Electronic evidence is not accepted by the Tribunal at minor civil dispute hearings anyway.
- I conclude he chose not to tender those messages at the hearing below. That occurred simply in consequence of the manner in which he ran his case. He was not denied the opportunity to do so by the Justices of the Peace.
- The application for fresh evidence on appeal is refused.
- Given the errors identified in the decision below, the appeal must succeed. It succeeds on questions of mixed fact and law. It must therefore be decided by way of rehearing.
- The matter of the bond is no longer relevant. The bond has been paid out. Any issue about the wrong bond being claimed is no longer relevant.
- The claim by the provider is for compensation limited to an amount equal to the bond, namely $680. The provider has already been paid out an amount of $171.42 from the bond held by the Residential Tenancies Authority in the name of Mr Lovett.
- A key issue in this matter is the effectiveness or otherwise of the termination of Mr Lovett’s rooming accommodation agreement. The copy of the SMS message attached to the counter application is rather compelling. However Mr Lovett said he did not send it. He said he showed his phone to the police on the night but ‘they could not find no (sic) phone calls, no phone messages stated on my personal phone.’
- Mr Hicks appears to have given consistent and honest answers to questions in the hearing before the Justices of the Peace. His evidence about being told by the female resident that Mr Lovett had sent her the SMS saying he was starting a fire is believable and supported by the SMS message he attached to his counter application. His belief appears to have been reasonable in the circumstances. By s 370 of the Act he simply needed to have a reasonable belief about Mr Lovett’s actions interfering with the peace, comfort and privacy of another resident and certainly threatening to start a fire must qualify under that head.
- A consequence of Mr Hicks having that reasonable belief would be that it entitled him to give the Form R12 to leave immediately. The further consequence of that would be that the rooming accommodation agreement ended on that night, 2 December 2017.
- The difficulty persisting, however, is that the Justices of the Peace made no decision about Mr Lovett sending the SMS message nor about the termination of the rooming accommodation agreement consequent on that. If it was found he did send the SMS, then the claims for cleaning and repair, claim for lost rent through to entering into a new rooming accommodation agreement might appropriately be claimed against him. If not, then it would be unreasonable to make him pay, even if this left Mr Hicks out of pocket and even if Mr Hicks was entitled to terminate the rooming accommodation agreement.
- As to the claim for cost of relet, there is no evidence about that.
- In the circumstances it is most appropriate to return the matter to the Justices of the Peace for reconsideration and let them take the additional evidence necessary to decide these matters and make the appropriate orders following.
- Published Case Name:
Danny Hicks v Daniel Lovett
- Shortened Case Name:
Hicks v Lovett
 QCATA 179
05 Nov 2019