Meyer & Anor v Murchie & Anor
[2020] QCATA 175
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- Unreported Judgment
- Meyer & Anor v Murchie & Anor[2020] QCATA 175
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Meyer & Anor v Murchie & Anor[2020] QCATA 175
Meyer & Anor v Murchie & Anor[2020] QCATA 175
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Meyer & Anor v Murchie & Anor [2020] QCATA 175 |
PARTIES: | KARL MEYER and anor (Applicants) |
| v |
| JULIE MURCHIE ANd anor (Respondents) |
APPLICATION NO: | APL196-19 |
ORIGINATING APPLICATION NO: | MCDT 157-19 Townsville |
MATTER TYPE: | Appeals |
DELIVERED ON: | 22 December 2020 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Dr J R Forbes, Member |
ORDER: | The application for leave to appeal is dismissed. |
CATCHWORDS: | APPLICATION FOR LEAVE TO APPEAL – LANDLORD AND TENANT – residential tenancy – flood emergency – whether agreement frustrated – whether future obligations of tenant survive – whether, if obligations otherwise survive, agent may release tenant from same – where lessor’s agent purported to grant release – whether agent acted within scope of authority – functions of primary tribunal – limitations of application for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28, s 32 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 305, Form 13 Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Codelfa Construction Company Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Damjanovic v Sharpe Hume and Co [2001] NSWCA 407 Fox v Percy (2003) 214 CLR 118 Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 JM v QFG and KG [2000] 1 Qd R 373 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 Nickelseekers Pty Ltd v Vance [1985] 1 Qd R 266 R v District Council of Berri; Ex parte Eudunda Farmers’ Co-operative Society Ltd (1982) 31 SASR 342 R v Essex Justices; Ex parte Perkins [1927] 2 KB 475 S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 Shaw, Re; Ex parte Shaw (1981) 55 ALJR 12 Vakauta v Kelly (1989) 167 CLR 568 Walton v New Lakelands Pty Ltd [2013] QCATA 49 Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 Wilson v Anderson (2002) 213 CLR 401 |
APPEARANCES & REPRESENTATION: | These matters were heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). |
REASONS FOR DECISION
- [1]A tropical deluge replaced Townsville’s drought in February 2019. It was a mixed blessing for residents of suburbs such as Idalia, where the respondents (`the tenants’) then resided. Just one month earlier they had leased a house in Lakewood Drive Idalia (`the property’) from the appellants (`the Meyers’).
- [2]In the period 27 January to 8 February 2019 emergency releases of water from the city’s Ross Dam inundated several suburbs, including Idalia. According to the tenants flood waters invaded the subject property to a depth of between one metre[1] and 40 centimetres.[2] The Meyers disputes that estimate[3], but no precise measure is available. Meyers did concede that `some areas of the house got ... more water than the others’.[4]
- [3]
- [4]
- [5]The tenants’ claim for refund of rent is not now in dispute.[9]
The primary orders
Claim and cross-claim were heard and determined together on 23 July 2019. The tenants were granted a return of their bond, and by consent, $455.71 for rent overpaid. The Meyers were awarded only $105, for damage to a wall. That award is not challenged.
Proposed grounds of appeal
- [6]
- [7]The proposed grounds of appeal are set out in two sections of their application. Under the specific heading “Grounds of Appeal”[12] they simply assert:
We believe that this hearing was not impartial at all as it seems that one of the tribunal members favoured the tenant.
- [8]That is effectively an allegation of bias, actual or apparent. Bias is a serious imputation, which should not be made without cogent evidence and appropriate particulars.[13] No such particulars are given here. The transcript shows no sign of discourtesy on the Tribunal’s part.
- [9]Besides, when a party suspects bias during a hearing, the tribunal should promptly be asked to recuse itself.[14] No such application was made. While the rule is less strictly applied to a party not legally represented,[15] that does not dispose of the complete absence of particulars. It is no evidence of bias that the adjudicator arrives at a conclusion adverse to a dissatisfied litigant. If it were otherwise, no judicial decision would ever be sustainable. The functions of a tribunal cannot be allowed to depend on `the suspicions of the ultra-sensitive”[16] or the unsubstantiated complaints of a disappointed litigant. I find nothing in the transcript that warrants a claim of bias, and the allegation should not have been made. In fact the Tribunal expressed sympathy for the Meyers’ misfortune[17], and there is no reason to doubt the sincerity of those remarks.
- [10]Part C of the application incorporates an `attachment A’, alleging that:
- (a)Contrary to the tenants’ case, and regardless of the flood emergency, neither the Meyers’ property manager nor anyone else could or did exempt the tenants from any continuing liability under or in relation to the lease;
- (b)The tenants remained bound to clean `windows (inside and outside), fans, oven, air-conditioning units, etcetera above the flood level;
- (c)The Tribunal `favoured the tenants’. This submission is considered and dismissed above.
- (d)The tenancy agreement says nothing about flood emergencies. The tenants remain responsible for cleaning the premises `above inundation levels’;
- (e)The Meyers’ property manager did not inform the Meyers that the tenants’ duty to pay for water supplies was contingent upon proof that the premises’ water delivery system was `water efficient’
- (f)The condition of the yard, for which the tenants were responsible, was not affected by the flood.
- (a)
Orders sought
- [11]The Meyers ask the Tribunal to set aside the decisions against them, and –
... that the tenants be held responsible for all cleaning costs above the flood level, the yard maintenance as well as the pest spraying costs for wasp nests. The tenants also to pay for their water usage as per [the] lease agreement. [And further] allow us to submit a “water efficiency” report from a plumber.[18]
Water charges – water efficiency
- [12]The Meyers’ complaint is that their claim to recoup water charges was dismissed because they did not know that their premises had to be `water efficient’. (In common parlance, water efficiency relates to reduction of wastage by comparing the amount of water needed for a particular purpose with the amount actually used.)
- [13]It is not contended that the water efficiency rule[19] did not apply in this case. The essential point is that Meyers’ ignorance of the water efficiency rule is due to the default of their managing agent. (I note that no alternative claim was made under section 166(4) of the Act, which allows the alternative of a `reasonable quantity’ claim.)
- [14]The Meyers now ask the appeal Tribunal to give them leave to adduce evidence of compliance with section 166(3). For that purpose they propose to rely on an undated certificate of compliance signed by one Wayne Ryan, produced on or about 15 September 2019.[20] This is plainly an attempt to introduce, after the trial, material that could and should have been led at the trial if the Meyers or their agent had exercised due diligence in preparing the Meyers’ case. As such, it is inadmissible at this stage.[21] The Meyers’ consequent rights against the agent, if any, are not now in issue.
- [15]The Tribunal’s disallowance of this claim must stand.
Cleaning above the flood line?
- [16]The primary Tribunal had the benefit of local knowledge of the flood.[22] In its view it would have been unreasonable, if not impractical, to expect the tenants to engage in a partial cleaning exercise, amid `sewage and uncleanliness’,[23] in circumstances described by the Meyers’ own property agent as `a disaster scenario’.[24]
- [17]That decision was a matter of fact and degree, and one that was not unreasonable in the circumstances. Findings of fact and degree are the prerogative of the primary Tribunal[25], not to be second-guessed on an application for leave to appeal.
[N]o error of law occurs simply because the judge prefers one version of evidence to another or one set of inferences to another. This is his function. ... Even if the evidence is strongly one way the Appeal Court may not intervene simply because it reaches a different conclusion.[26]
`Flood emergencies’ and the RTA
- [18]As the Meyers submit, the tenancy agreement does not explicitly deal with flood emergencies. However, the RTA does provide for situations of `non-livability’. A tenant may give the lessor `a notice of intention to leave the premises ... if [they] have been ... made completely or partially unfit to live in, other than because of a breach of the agreement’.[27]
- [19]At common law a frustrating event is one that results in a state of affairs fundamentally different from that contemplated by the contract.[28] The apparent intention of the modifying phrase - `or partially’ – in section 305 is to make the test of frustration less demanding from a tenant’s point of view.
- [20]It is not seriously suggested that this agreement was not frustrated, within the meaning of section 305. The validity of the tenants’ Form 13 notice is unchallenged.
Effect of frustration
- [21]The legal result of frustration is that the subject agreement is terminated at the point of frustration and all future obligations inter partes are discharged.[29]
- [22]If it were argued that some or all of the Meyers’ claims are not future obligations of the tenants, the answer lies in what the Tribunal describes as `the determining factor ... the email exchange’,[30] which I shall now consider.
The email exchange
- [23]On 18 March 2019, some six weeks after the tenants left the property, there was an exchange of emails between a co-tenant (Ms Kerrison) and the Meyers’ agent, Mr Frank Munich of Aluka Property. According to Kerrison’s uncontradicted evidence:
[W]e never received a request to return to the property to complete any further work. We informed [the agent] of the state of the property when we vacated. Given that there was a lot of mud and sewerage [sic] that was still on the floor we did take into consideration ... warnings about ... our health. And upon our discussions with [the agency] Aluka Property, they advised us that they didn’t expect us to complete things such as pest control, lawn mowing, or things that are generally completed on leaving a property, given the circumstances in which we vacated it.[31]
- [24]The Meyers do not dispute Kerrison’s claim that the above communication occurred, but they deny that it effectively discharged the tenants’ remaining obligations, if any.
- [25]However, the following emails were exchanged between Kerrison and the Meyers’ agent Munich, as found by the judges of fact.[32] Proof of the agent’s attitude does not depend solely on Kerrigan’s oral evidence. Kerrigan[33] sought confirmation that `there was no requirement to complete the usual post-tenancy procedures”.
- [26]Munich did not dispute Kerrison’s presumption of a full and final discharge, but responded:
When a notice of intention to leave is issued due to non-liveability, the lease ends the same day ... the property is handed back to the agency. Our agency did not request that you carry out any pest control, lawn mowing, etcetera, when you handed in your notice and returned the keys.
- [27]While an exquisite legal analyst might regard this response as somewhat oblique, the Tribunal, in all the circumstances, and not unreasonably, found that it was a purported discharge of any remaining duties of the tenants to their landlords:
[I]t was obvious at that stage then that Ms Kerrison and Ms Murchie believed that the agent had told them that they didn’t have to complete any of these items ... [T]hat was aside from the fact that there were difficulties, in any event, for the parties to return to the property ... and do any cleaning work.[34]
- [28]In context, the expression `any cleaning work’, not to mention the agent’s absolution, includes pest control and mowing.
- [29]Any contrary instructions that the Meyers gave, or subsequently wished they had given to their agent, but to which the tenants were not privies, are immaterial. It is the agent’s communications with the tenants that matter. Implicitly the Tribunal held that the tenants’ understanding was a reasonable one, on an objective view of the facts. Similarly:
The law of contract seeks to give effect to the common intention of the parties. But the test is objective and impersonal. The common intention is to be ascertained by reference to what a reasonable person would understand by the language used ... [35]
- [30]Also implicit in the final decision is a finding that, in granting the tenants absolution, Munich was acting within the scope of his authority. At an earlier stage that view was clearly expressed, in what, given the relative informality of the primary proceedings, may be treated as an integral part of the decision:
The difficulty ... Mr and Mrs Meyer, is that Frank Munich was your agent. So he acted in your shoes. So what he told the tenants was, in effect, the same as if you told the tenants something. If you are now unhappy in the way he handled your property, then it’s up to you to take an action against his real estate agency or him.[36]
- [31]The major premise of that statement is that Munich, in absolving the floodbound tenants of further liability, acted within the scope of his actual or ostensible authority. The Tribunal did not have evidence of the precise terms of Munich’s retainer, but Clause 43 of the tenancy agreement confers certain powers on a managing agent. Clause 43(2)(b) of that document provides – for and against the lessor - that the lessor’s agent may do anything else that the lessor may do, or is required to do under this agreement.’[37] And indisputably a lessor may, if so disposed, release a tenant from all or any obligation imposed by the tenancy agreement.
- [32]More broadly, there is no a priori reason why a managing agent, in circumstances of a natural disaster may not recognise that a frustrated agreement is ended, even if some obligations would otherwise remain. With respect, there is nothing unreasonable in the primary Tribunal’s view to that effect. Where reasonable minds may differ, a decision cannot properly be called erroneous simply because one conclusion has been preferred to another possible view.[38]
- [33]The Form 13 notice ended the agreement from the time it was served. Assuming, without deciding, that some obligations remained, they were extinguished by action of the Meyers’ property agent.
- [34]Upon careful consideration I find no legal or appellable error in the primary decision, and no reasonable prospect of a successful appeal. The application for leave to appeal must be dismissed.
ORDER
The application for leave to appeal is dismissed.
Footnotes
[1] Transcript of hearing 23 July 2019 (`T’) page 3 line 45 (Kerrison).
[2] T page 21 line 9 (Kerrison).
[3] T page 18 line 26, page 21 lines 13-17.
[4] T page 26 lines 1-2.
[5] Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (`the RTA’) Form 13 (unliveability).
[6] T page 15 lines 20-22.
[7] Townsville application MCDT 157 of 2019.
[8] Townsville application MCDT 180 of 2019. The two claims were tried together on 23 July 2019.
[9] T page 4 line 43, page 5 line 12.
[10] As required by s 142(3)(a)(i).
[11] Application for leave to appeal filed on 26 July 2019.
[12] Application Part C.
[13] Re Shaw; Ex parte Shaw (1981) 55 ALJR 12 at 15; R v District Council of Berri; Ex parte Eudunda Farmers’ Co-operative Society Ltd (1982) 31 SASR 342 at 353; Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97].
[14] Vakauta v Kelly (1989) 167 CLR 568 at 572, 577; Nickelseekers Pty Ltd v Vance [1985] 1 Qd R 266 at 272.
[15] R v Essex Justices; Ex parte Perkins [1927] 2 KB 475; Damjanovic v Sharpe Hume and Co [2001] NSWCA 407 at [77].
[16] S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 374 per Kirby P.
[17] T page 38 lines 7-16. See also T 29 lines 6-9.
[18] Application Part D.
[19] RTA s 166(3).
[20] Email from Karl Meyer to QCAT 15 September 2019.
[21] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404; Walton v New Lakelands Pty Ltd [2013] QCATA 49.
[22] Which, as a tribunal not bound by the rules of evidence it was entitled to take into account: QCAT Act s 28(3)(b) and (c): Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546 at 581.
[23] T 42 line 4.
[24] T page 32 line 29, quoted by Ms Meyer.
[25] JM v QFG and KG [2000] 1 Qd R 373 at 391 per Pincus JA.
[26] Fox v Percy (2003) 214 CLR 118 at 125-126; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.
[27] RTA s 305(1)(a): Notice of intention to leave if agreement frustrated.
[28] Codelfa Construction Company Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 357, 377.
[29] Codelfa (above) at [23].
[30] T page 41 lines 23-24.
[31] T page 30 lines 40-45, T 31 lines 1-4.
[32] T page 41 liies 24-45.
[33] Not Ms Meyers, as stated in a verbal slip in the course of the oral judgment at T page 41 line 26.
[34] T page 42 lines 1-5 (the Tribunal).
[35] Wilson v Anderson (2002) 213 CLR 401 at 418 per Gleeson CJ; Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at 912.
[36] T page 32 lines 33-37 (Ms Butson JP).
[37] Emphasis on the permissive word added.
[38] Fox v Percy (2003) 214 CLR 118 at 125-126; Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at[131].