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GN v JT Real Estate[2020] QCATA 45

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

GN v JT Real Estate & Anor [2020] QCATA 45

PARTIES:

GN

(applicant/appellant)

v

JT real estate

(first respondent)

KD

(second respondent)

APPLICATION NO/S:

APL156-19

ORIGINATING APPLICATION NO/S:

MCDT000

MATTER TYPE:

Appeals

DELIVERED ON:

14 April 2020

HEARING DATE:

4 March 2020

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

Application for leave to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – where husband and wife were tenants of residential premises – where the relationship broke down – where police applied for domestic violence orders against the appellant wife – where the appellant and the second respondent each filed separate applications in the Tribunal for termination of the tenancy on the grounds of excessive hardship – where the appellant was found to have extensive property interests – where the appellant failed to provide adequate evidence of financial impecuniosity – where material filed in domestic violence Magistrates Court proceedings were tendered in the Tribunal – where the Adjudicator relied upon the material – whether the material was inadmissible

Domestic and Family Violence Protection Act 2012 (Qld), s 159, s 160

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 164(1)

Pickering v McArthur [2005] QCA 294

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

First Respondent:

Self-represented by SK

Second Respondent:

Self-represented

REASONS FOR DECISION

  1. [1]
    The appellant (‘GN’) and the second respondent (‘KD’) were married. On 18 July 2018 they entered into a residential tenancy agreement as tenants of a house in a Brisbane suburb (‘the property’). The first respondent (‘JT’) was the agent acting for the lessor.
  2. [2]
    The relationship between GN and KD failed towards the end of 2018. There was an incident on 28 November 2018 to which police were called. As a result GN left and went to Sydney. KD stayed at the property with the two children of the marriage.
  3. [3]
    GN returned to the property but subsequently the relationship ended conclusively around 7 February 2019 with the husband, KD, leaving the property. After that he returned intermittently to wash clothes and to shower.
  4. [4]
    The relationship between GN and KD became very acrimonious. The police applied for a domestic violence order on behalf of KD as the aggrieved party against GN as the respondent.
  5. [5]
    On 13 March 2019 a domestic violence order was made in the Magistrates Court against GN pursuant to the police application. What also seems to have occurred on that same day, but it is unclear why, is that the Magistrates Court made a domestic violence order against KD requiring him to stay away from the property.
  6. [6]
    GN remained at the property until 23 April 2019 when she handed back the keys. The tenancy was not due to expire until July 2019. She moved to another property in Brisbane.
  7. [7]
    KD made an application to the Tribunal to terminate his tenancy of the property which he filed on 15 April 2019.
  8. [8]
    GN then made a separate application filed 16 April 2019 to terminate the tenancy on the basis of hardship claiming she could not afford to pay two rents and that she had had to move to another property because of domestic violence.
  9. [9]
    The separate applications were conveniently heard together by an Adjudicator on 3 June 2019.
  10. [10]
    The Adjudicator terminated KD’s tenancy that day on the basis of excessive hardship.  In respect of GN’s application the learned Adjudicator adjourned the application to the following week to allow GN to file evidence of financial hardship.
  11. [11]
    GN filed material and the matter was brought back on for hearing on 10 June 2019 with the learned Adjudicator dismissing her application.
  12. [12]
    GN wants to appeal that decision.
  13. [13]
    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.[1] 
  14. [14]
    Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2] 
  15. [15]
    The grounds of appeal in the application for leave to appeal lack precision though this is not unusual in Tribunal proceedings with self-represented parties. Considering her grounds claimed in the application for leave to appeal and subsequent submissions filed by her, her claimed grounds of appeal appear to amount to the following:
    1. (a)
      Ground 1: The Adjudicator’s finding that there was insufficient evidence to justify her claim that she suffered financial hardship which prevented her paying rent for the property was against the weight of the evidence.
    2. (b)
      Ground 2: KD had not been required to provide any evidence of his financial hardship.
    3. (c)
      Ground 3: The Adjudicator relied on inadmissible evidence in the form of material filed in domestic violence proceedings in the Magistrates Court in finding it was not reasonable for GN to vacate the property based on a claim of domestic violence by KD.

Ground 1

  1. [16]
    The Adjudicator’s finding that there was insufficient evidence to justify her claim that she suffered financial hardship which prevented her paying rent for the property was against the weight of the evidence.
  2. [17]
    In her initial application GN simply said she could not afford two rental properties. At the hearing on 3 June 2019 GN said she had no more money in the bank and she had been left with a lot of debt.
  3. [18]
    The learned Adjudicator asked GN what her earnings were. GN said her earnings were less than her debt. She said she was not on Centrelink payments but would be soon. She had no money in the bank. She had been left with business debts (her business had been placed in liquidation) and a house mortgage in Sydney.
  4. [19]
    The learned Adjudicator expressed surprise when GN mentioned owning a house. KD said it was not one house but indeed GN owned five properties in Sydney.
  5. [20]
    GN said she had a debt of $7.2 million however and all the properties were being ‘repossessed’ and sold.
  6. [21]
    The learned Adjudicator asked for documentary evidence of GN’s assets and liabilities. To enable her to produce that evidence GN’s application was adjourned to the following week.
  7. [22]
    GN filed material. On 10 June 2019 the application was brought back on for hearing. Notably GN filed an affidavit (undated) in which she blamed KD for giving guarantees to creditors of a company he owned.
  8. [23]
    In the affidavit she said she had been exposed to $7.4 million of debt and she had to pay approximately $56,000 each month in mortgage payments and payment plans as a result of ‘these personal guarantees’.[3]
  9. [24]
    Then she says:

However, I cannot afford to continue paying rent at two properties, as well as catering to all the mortgage payments and debt left by my ex-husband. Exhibited to this my affidavit and marked “B” is a true copy of my bank statement of my only accounts.[4]

  1. [25]
    She said she was exhibiting real estate agent engagement agreements and contracts.
  2. [26]
    There were no contracts of sale exhibited. The engagement agreements disclosed ownership of six properties not five – units 81, 83, 84, 85, 86 and 88 at 7 Lavender Street, Lavender Bay. The engagement agreements noted estimated values of the properties all in the range $695,000 to $875,000. Four were noted as have existing tenants.
  3. [27]
    A seventh property in Sydney at Whale Beach Road, Whale Beach had also been mentioned at the hearing on 3 June 2019 with a value of over $4 million.
  4. [28]
    She attached a one-page print out of a bank account in her name which had a balance of $1,233.09 as at 6 June 2019 although the day before it showed a balance in excess of $61,000 before a mortgage payment for June 2019 of $46,982.29 was made and $13,000 apparently paid out for legal fees.
  5. [29]
    She also filed an affidavit from a solicitor who said he had been acting for her at the time of swearing his affidavit for three months. In the affidavit the solicitor said he was aware that GN’s current monthly expenses were $56,982.99 for mortgage payments and payment plans ‘which amounts are beyond her financial means’.
  6. [30]
    He failed to descend into particulars. Instead he repeated GN’s complaints made to him about KD. Rather extraordinarily he concluded the affidavit saying that he was aware from his own knowledge of her affairs that she was currently suffering extreme financial hardship due to the actions of KD and she was unable to afford paying rent in respect of two properties.
  7. [31]
    The material filed by GN presents no true disclosure of her financial circumstances. There was no evidence filed to support her claim that she had debts of $7.4 million (increased from the hearing on 3 June 2019 from $7.2 million).
  8. [32]
    There was no claim that GN had signed guarantees, but only KD. There was no evidence of her indebtedness to any trade creditor.
  9. [33]
    By her own evidence she had monthly (and one assumes from that, ongoing) expenses of over $50,000 and yet claimed her entire cash reserves were just over $1,000. There was no explanation of where the rent on the four tenanted properties at Lavender Street was paid, nor what was paid.
  10. [34]
    Her fairly extensive real estate holdings and involvement in business required commensurately appropriate disclosure. Appropriate disclosure was at minimum a statement of her assets and liabilities. This was not done and the picture that she painted obfuscated rather than clarified her financial standing, perhaps intentionally. There was no evidence of impecuniosity. Her net worth could well exceed by a significant factor any indebtedness.
  11. [35]
    This was the conclusion reached by the learned Adjudicator who found the evidence presented did not show that GN could not afford to pay the rent on the property. It was a conclusion appropriately available to the learned Adjudicator on the meagre evidence presented by GN.
  12. [36]
    There is no prospect of success on this ground of appeal.

Ground 2

  1. [37]
    KD had not been required to provide any evidence of his financial hardship.
  2. [38]
    It is not clear how this complaint is relevant to these proceedings. KD’s application was an entirely separate application and the order made releasing him from his tenancy obligations was not made in GN’s application.
  3. [39]
    In any case however, KD did provide evidence of his financial hardship. At the hearing of 3 June 2019 KD said he had no assets and he was receiving Centrelink payments. The learned Adjudicator adjourned the hearing to enable him to present electronic evidence of the claim to GN and JT outside the hearing room. GN returned early saying she did not want to be with KD. The representative for JT said she accepted he was receiving Centrelink payments.
  4. [40]
    Furthermore, GN’s affidavit referred to KD’s business being in liquidation and his creditors pursuing her for guarantees he had signed, presumably asking her for payment because he was impecunious.
  5. [41]
    There is no identifiable error made here by the learned Adjudicator. There was evidence available to her to allow her to conclude KD was suffering financial and therefore excessive hardship and unable to pay two rents.

Ground 3

  1. [42]
    This ground was that the Adjudicator relied on inadmissible evidence in the form of material filed in domestic violence proceedings in the Magistrates Court in finding it was not reasonable for GN to vacate the property based on a claim of domestic violence by KD.
  2. [43]
    KD filed a copy of an affidavit sworn by police officer Sergeant TU filed in support of an application by police for a domestic violence order against GN.
  3. [44]
    It was highly critical of GN. It clearly identified the aggrieved person as KD and the perpetrator of domestic violence as GN.
  4. [45]
    The learned Adjudicator relied on the affidavit to conclude GN was not justified in leaving the property because of KD’s claimed threats of violence towards her.
  5. [46]
    The Domestic and Family Violence Protection Act 2012 (Qld) (‘DVA’) provides:

159 Prohibition on publication of certain information for proceeding

  1. (1)
    A person must not publish—
  1. (a)
    information given in evidence in a proceeding under this Act in a court; or
  2. (b)
    information that identifies, or is likely to lead to the identification of, a person as—
  1. (i)
    a party to a proceeding under this Act; or
  2. (ii)
    a witness in a proceeding under this Act (other than a police officer); or
  3. (iii)
    a child concerned in a proceeding under this Act.

Maximum penalty—

  1. (a)
    for an individual—100 penalty units or 2 years imprisonment; or
  2. (b)
    for a corporation—1,000 penalty units.
  1. (2)
    However, subsection (1) does not apply—

  1. (d)
    to the publication of information for the purpose of a recognised series of law reports or an official website for the publication of judgments, if the information does not identify, and is not likely to lead to the identification of, a person mentioned in subsection (1)(b); or

  1. (3)
    In this section—

information includes a photograph, picture, videotape and any other visual representation.

publish means publish to the public by television, radio, the internet, newspaper, periodical, notice, circular or other form of communication.

160 Prohibition on obtaining copies of documents for proceeding

  1. (1)
    A person is not entitled to a copy of—
  1. (a)
    any part of the record of a proceeding under this Act; or
  2. (b)
    any document used or tendered in a proceeding under this Act.
  1. (2)
    However, subsection (1) does not apply to—
  1. (a)
    a party to the proceeding; or

  1. (f)
    an Australian court, if the copy of the record or document is relevant to a proceeding before that court; or

  1. (3)
    In this section—

Australian court means a court of the Commonwealth or a State or Territory.

  1. [47]
    The reasons for decision given by the learned Adjudicator were not published to the public within the meaning of that expression used in the DVA. Her reasons for decision were given and recorded orally. The reasons were recorded because the Tribunal is a court of record and must keep a record of its proceedings. The oral recording is not available to the public.
  2. [48]
    Further, as stated, the Tribunal is a court of record.[5]
  3. [49]
    In Owen v Menzies[6] the Court of Appeal considered whether QCAT was a court of the State within the meaning of the Commonwealth Constitution. The Justices concluded the Tribunal was a court of the State. The Chief Justice said:

Ultimately there is the assurance that this Tribunal is to apply the law, and to do so in the manner in which courts traditionally operate, that is, independently and impartially. That is enough to justify calling this Tribunal a “court of the State” within the meaning of the Constitution…[7]

  1. [50]
    Accordingly, given the Tribunal is a court of the State, the DVA exception to the general prohibition against obtaining copies of documents used in domestic violence matters for proceedings in a court of the State applies to the Tribunal if the copy of the record or document is relevant to a proceeding before the Tribunal. 
  2. [51]
    Here GN had made rather extraordinary claims, not only about who was the aggrieved party for the purpose of domestic violence applications but also about advice she claimed she had been given by police, indeed by Sergeant TU.
  3. [52]
    GN filed with her material copies of temporary protection orders showing the respondent as KD. She omitted any reference to the domestic violence proceedings brought by police against her as respondent.
  4. [53]
    On 31 May 2019 she swore an affidavit in the proceedings in which she again omitted reference to the domestic violence application brought against her by police and again claimed she was the aggrieved party. Further, she claimed Sergeant TU had advised her, for her own safety, to vacate the property, give two weeks’ notice to JT and send them a copy of the domestic violence order against KD. She claimed to be following police instructions in vacating the premises.
  5. [54]
    These claims by GN were clearly fabrications given the affidavit by Sergeant TU. That affidavit had been tendered by KD in the Tribunal proceedings to refute the claims by GN.
  6. [55]
    In the affidavit Sergeant TU clearly stated KD was the aggrieved party and GN the respondent to the police application for a domestic violence order. The Sergeant referred to incidents that had occurred between GN and KD from 27 November 2018 to 4 April 2019. She explained that on 5 March 2019 as a result of investigations police applied for the domestic violence order against GN.
  7. [56]
    She (Sergeant TU) said in the affidavit the Magistrates Court had issued a domestic violence order against GN on 13 March 2019. Then on 15 March 2019 GN made a private application for a domestic violence order against KD as respondent.
  8. [57]
    In light of Sergeant TU’s chronology it is unclear why any temporary protection orders were also made against KD on 13 March 2019.
  9. [58]
    Regardless, the affidavit detailed rather disturbing behaviour by GN over the period concerned and clarified that she was the respondent to a domestic violence application brought by police and KD the aggrieved.
  10. [59]
    The learned Adjudicator relied on the affidavit in the domestic violence proceedings to find that GN was not forced by domestic violence threats from KD to leave the property. The learned Adjudicator was entitled to rely on the material in concluding that one of the major grounds claimed by GN for leaving the tenancy early and not paying compensation to the lessor, namely apprehended domestic violence by her husband, was not made out.
  11. [60]
    Throughout the proceedings GN’s evidence, particularly about her finances, was contradictory and lacked credibility.
  12. [61]
    There is no prospect of a successful appeal under this ground of complaint.
  13. [62]
    Leave to appeal is refused.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i) (‘QCAT Act’).

[2]Pickering v McArthur [2005] QCA 294.

[3]Affidavit by GN sworn June 2019, [39].

[4]Ibid, [41].

[5]QCAT Act, s 164(1).

[6][2012] QCA 170.

[7]Ibid, [20] (Chief Justice).

Close

Editorial Notes

  • Published Case Name:

    GN v JT Real Estate & Anor

  • Shortened Case Name:

    GN v JT Real Estate

  • MNC:

    [2020] QCATA 45

  • Court:

    QCATA

  • Judge(s):

    Member Howe

  • Date:

    14 Apr 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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