Integrity Property Management v Weaver
[2021] QCATA 141
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- Unreported Judgment
- Integrity Property Management v Weaver[2021] QCATA 141
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Integrity Property Management v Weaver[2021] QCATA 141
Integrity Property Management v Weaver[2021] QCATA 141
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Integrity Property Management v Weaver [2021] QCATA 141 |
PARTIES: | Integrity Property Management (applicant/appellant) v Rebecca Weaver (respondent) |
APPLICATION NO/S: | APL375-20 |
ORIGINATING APPLICATION NO/S: | MCDT355-20 (Richlands) |
MATTER TYPE: | Appeals |
DELIVERED ON: | 11 November 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | A/Senior Member Howe |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the respondent was a tenant and the appellant agent – where the tenant complained about the condition of the property – where the lessor gave notice to leave on the grounds of non-liveability – where the lessor applied to the tribunal for termination on the grounds of non-liveability which was refused – where the tenant applied for certain relief pending repairs being effected to the property and amended her claim to compensation prior to hearing – where notice of the amended claim was directed by the tribunal to be given to the appellant but notice was not given – whether the appellant was accorded procedural fairness at hearing Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 277, s 415, s 420 Jonathan v Mangera [2016] QCA 86 Lyons v Building Services Authority & Anor [2011] QCATA 240 Pickering v McArthur [2005] QCA 294 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented by T Mercer |
Respondent: | Self-represented This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]Rebecca Weaver is a tenant under a residential tenancy agreement in respect of a property at Springwood. Integrity Property Management (‘the agents’) are the lessors’ real estate agents.
- [2]The term of the tenancy was fixed from 6 March 2020 until 7 March 2021 and thereafter it evidently continued as a periodic tenancy on the same terms and conditions.
- [3]Ms Weaver had concerns about the condition of the property, particularly the garage and bathroom ceilings, which were sagging. She complained to the agents and issued a Form 11 Notice to Remedy Breach concerning such on 3 September 2020, requiring the lessor to remedy the problems by 11 September 2020.
- [4]The agents engaged tradesmen to report and then told Ms Weaver that she should leave the property pending a report being obtained from an engineer and repairs being effected. She was told her bond would be refunded from the Residential Tenancies Authority (‘RTA’), and it was, apparently at the direction of the agents to the Authority.
- [5]The agents also issued a Form 12 Notice to Leave on the grounds of non-liveability on 9 September 2020 effective from that date of issue.
- [6]She did not leave and the agents applied to the tribunal for termination of the tenancy on the basis of non-liveability.
- [7]At or about the same time Ms Weaver filed an application in the Tribunal seeking an award of $4,330 to cover the costs of moving and packing, an award of two weeks rent at a new property and waiver of then current arrears of rent. She also applied for a rent reduction of $120 per week from 25 August 2020 to the actual date of her vacating.
- [8]It is not entirely clear on the material available, but it appears the application for termination was heard first and dismissed, which left Ms Weaver’s claim to proceed to hearing on 18 November 2020.
- [9]On 2 November 2020 Ms Weaver had filed a miscellaneous application to amend her claim to add an additional claim for the cost of repairs to her car, which she said had been damaged by hail when it was parked outside the garage. She said it would not have sustained damage if she had been able to shelter it in the garage.
- [10]At the hearing on 18 November 2020 Ms Weaver advised she no longer intended to vacate the property. The application for termination by the agents had been dismissed. Accordingly she no longer pursued a claim for the costs of moving and packing (nor relief from arrears of rent or rent in another dwelling) but she maintained her claim for compensation for hail damage to her car and maintained her application for a rent reduction of $120 per week until the repairs to the house were effected.
- [11]Following the hearing the Adjudicator made the following orders:
1. Tanya Mercer is removed as a respondent.
2. The respondent is to pay to the applicant the amount of $3,884.29 within 30 days.
3. The rent payable under the residential tenancy agreement is reduced to $352.50 per week until the repairs to the premises are completed.
- [12]The agents seek leave to appeal that decision, specifically Order 2.
- [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]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]It appears (the grounds of appeal in the application for leave to appeal are treated in broad brush fashion, which is not unusual in this jurisdiction) the agents rely on four grounds of appeal:
Ground one: The Adjudicator erred in allowing Ms Weaver’s claim for damages to her motor vehicle in circumstances where she was obliged by the terms of the residential tenancy agreement to mitigate her damages by insuring her motor vehicle but failed to do so;
Ground two: Integrity Property Management was not afforded procedural fairness by leave having been granted to Ms Weaver to amend her claim to incorporate a claim for damages to her motor vehicle without prior notice of that additional claim having been given to Integrity Property Management before hearing;
Ground three: The Adjudicator erred in allowing the claim for repairs to the motor vehicle in the sum of $3025 in the absence of any evidence of hail damage other than the quote for repair;
Ground four: The Adjudicator erred in allowing the applicant’s claims in circumstances where as tenant she had been given notice to vacate the residential premises on the grounds of non-liveability effective from 9 September 2020.
Grounds of appeal
- [16]Ground two and three are appropriately addressed together, and first.
Ground two: Integrity Property Management was not afforded procedural fairness by leave having been granted to Ms Weaver to amend her claim to incorporate a claim for damages to her motor vehicle without prior notice of that additional claim having been given to Integrity Property Management before hearing;
Ground three: The Adjudicator erred in allowing the claim for repairs to the motor vehicle in the sum of $3025 in the absence of any evidence of hail damage other than the quote for repair;
- [17]The tribunal file shows that on 2 November 2020 Ms Weaver filed a miscellaneous application seeking leave to increase her claim to include a claim to $3,025 as the cost of repair of her motor vehicle plus the cost of hiring a substitute vehicle.
- [18]On 4 November 2020 an Adjudicator considered the miscellaneous application and directed that she be given leave to amend her claim accordingly and that the registry serve a copy of the miscellaneous application and accompanying material and a copy of the Adjudicator’s order on Integrity Property Management by post and by email.
- [19]The registry forwarded a copy of the material to the agents by post but not by email. The material forwarded by post was not received by the agents until after the hearing.
- [20]Ms Weaver succeeded in her claim for damages to her motor vehicle in the amount of $3,025 at hearing, but not with the claim for car hire.
- [21]Reasonable notice of the claim made against a respondent is a primary and essential requirement of our judicial system. It is a matter of procedural fairness:
It is a fundamental requirement of procedural fairness that any person entitled to be heard in a matter be given appropriate notice of the case he is to meet. Appropriate prior notice allows a party to prepare and present his case effectively. Inadequate notice both in respect of either time or substance prevents a party from being able to do so, and amounts to a denial of procedural fairness.[3]
- [22]A decision made in breach of procedural fairness generally renders the decision invalid for jurisdictional error.[4]
- [23]Perusal of the transcript of the subject proceedings shows the Adjudicator confirmed that Integrity Property Management was the appropriate respondent and that the application by the agents for termination on the grounds of non-liveability had been dismissed. There was no demur to that statement from either party.
- [24]Ms Weaver was then asked to confirm what she was claiming and she said she no longer pursued the packing and moving costs because she was no longer moving out. Then the following exchange occurred:
MEMBER: Okay. Thank you. Okay. Hail damage, do you want to talk me through that one?
MS WEAVER: A few weeks ago there was a hail storm, obviously, and due to the props that are holding up the garage ceiling I’m unable to use my garage so I was unable to protect my car from damage. I can go into a lot more detail. I’m just not sure what you want me to say at this point.
…
MEMBER: Yes. The – and I’m not saying that there hasn’t been a breach. All I’m saying is it’s how much you can recover legally as a result of the breach. And I think hail damage is too – it goes too far. It’s too – it’s too broad – it’s too remote.
MS WEAVER: I was in my driveway at the time. I mean, how – how do these people get held accountable for what they’ve put me and my family through? And – and this is damage that I’ve occurred – incurred and for – for no fault of my own. I – I don’t see how that falls outside when they’ve been given notice after notice after notice
…
MEMBER: Okay. Have you got – what evidence have you got of the costs that you incurred.
MS WEAVER: I have a quote from a repair company. I have photos of the bureau of meteorology on that day and photos of the hailstones that were there. I have video footage of my car in the driveway on that day. All of …
…
MEMBER: Well, there’s a couple of problems (1) you haven’t filed the quote; you haven’t filed the photos.
MS WEAVER: I have. It’s in – it’s in my paperwork.
MEMBER: Is it?
MS WEAVER: Yes, it is. In the form 40 application.
MEMBER: I see. Here’s the picture of …
MS WEAVER: It’s all in there.
MEMBER: Okay. Sorry. My apologies. And how do you know that the car will be out of action for five days?
MS WEAVER: Because that’s what the repair company quoted that it would take five days.
MEMBER: Right. What’s your response to that, Ms Mercer?
MS MERCER: In my response to the car hire and the damage, generally a tenant would have insurance on their car, would – would they not? And we hadn’t been notified of any of this even though it happened two weeks ago apparently.
MS WEAVER: Two weeks ago is when I filed the application. Sorry.
MS MERCER: Okay.
MS WEAVER: On the 2nd of December (sic).
MS MERCER: Well, we weren’t notified
MEMBER: Sorry. I’ll just ask you just to – one at a time, please.
MS MERCER: Yeah. And in relation to the delay on the works, we had to get a second quote for the property because the original quote we were given was to repair the property while vacant all at once. That company had to make a decision and check their liability insurance to see whether they were going to put in another quote to repair those two rooms and do each room separately. This is going to extend the repairs again.[5]
- [25]Ms Mercer represented the agents at the hearing.
- [26]The last part of the extract from the transcript suggests Ms Weaver and Ms Mercer each spoke, perhaps over each other, and were instructed by the Adjudicator to speak one at a time, but Ms Mercer did not return to the issue she raised briefly of lack of notification of the amended claim. Rather she addressed the issue of delay in performance of rectification work at the property. The Adjudicator then continued to explore with the parties that new issue, and failed to address the issue raised about the agents’ lack of notice of the amended claim.
- [27]The issue that no notice was given to the agents about the amended claim for damages to the motor vehicle before hearing was not addressed further in the hearing. Indeed it was not until the Adjudicator was giving reasons for decision that the claim for damage to the motor vehicle was mentioned again.
- [28]It is unclear what issues were referred to conciliation with the RTA as required by s 415 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’), and whether the damage to the motor vehicle which occurred after conciliation took place was an aspect of a relevant issue addressed at the conciliation, or something new requiring further and fresh referral.
- [29]Given the lack of notice, the agents had no opportunity to challenge the quoted cost of repairs, if so minded, nor the claim that the vehicle would not have been damaged had the garage been available to house the vehicle at the time of the storm. The agents had no opportunity to consider these things or make sensible submissions because they knew nothing about the claim prior to attending the hearing.
- [30]The lack of notice of the amended claim constituted a breach of procedural fairness in the circumstances and an error of law. That is so despite the error appearing to have been triggered by registry failing to comply with the directions made prior to the hearing to forward a copy of the miscellaneous application to Integrity Property Management.
- [31]Leave to appeal should be given and the appeal allowed in respect of this issue.
- [32]Given that, the subsidiary ground of appeal concerning the sufficiency of evidence led below with respect to the claim for damages to the motor vehicle should also succeed. The issue of the claim for damages caused to the motor vehicle must be returned to the Tribunal for reconsideration. That is necessary because the error was an error of law. In the course of reconsideration, if the claim succeeds, the evidence about quantum of damages in support or to refute the claim must needs be considered afresh as part of the reconsideration.
Ground one: The Adjudicator erred in allowing Ms Weaver’s claim for damages to her motor vehicle in circumstances where she was obliged by the terms of the residential tenancy agreement to mitigate her damages by insuring her motor vehicle but failed to do so;
- [33]The agents say Ms Weaver was obliged by the special terms and conditions of the tenancy agreement to insure her property, which includes her motor vehicle.
- [34]They say she avoided putting a complete copy of the tenancy agreement into evidence. The copy of the residential tenancy agreement included the general terms and conditions but not the special terms and conditions.
- [35]Given it was always available to the agents to file a full copy, there can be no complaint about the tenant’s failure to do so.
- [36]The agents appended a full copy of the tenancy agreement with their application for leave to appeal. They did not seek leave to adduce that as fresh evidence. They were directed to do so by directions made 28 January 2021, but probably did not understand the obligation.
- [37]Fresh evidence will generally only be allowed to be given on appeal when it could not, by reasonable diligence, have been obtained for the original hearing, where it might have produced an opposite result and it is apparently credible.[6]
- [38]Certainly the full document was available to the agents prior to hearing and able to be put into evidence by them at hearing.
- [39]The clause concerned simply states that it is the responsibility of the tenant to adequately insure her own property and possessions. What that means is unclear. On one view it is simply an advisory statement and reminds the tenant that the lessor will not be insuring the tenant’s property, and it is prudent for the tenant to attend to it.
- [40]How that clause operates to exclude the power granted the Tribunal to make an order for compensation pursuant to s 420 of the RTRAA consequent on a lessor’s breach of the residential tenancy agreement is not addressed by the agents.
- [41]The liability of the lessor arises there because of breach of the tenancy agreement. The contract of insurance stands completely independent of the relationship between lessor and tenant and breach of the tenancy agreement by the lessor results in a potential award of compensation for the breach.
- [42]If there is insurance that covers a loss caused by the lessor’s breach, a payment of money by an insurer to the tenant might (but not must) be taken into account in assessing what is appropriate compensation under s 420. That will depend on the circumstances. But the absence of insurance does not offer any protection to the lessor from liability for breach of the tenancy agreement.
- [43]This ground of appeal cannot succeed. Leave to appeal should not be granted in respect of this complaint.
Ground four: The Adjudicator erred in allowing the applicant’s claims in circumstances where as tenant she had been given notice to vacate the residential premises on the grounds of non-liveability effective from 9 September 2020.
- [44]This ground of appeal cannot succeed.
- [45]The agents issued a Form 12 Notice to Leave for non-liveability to Ms Weaver on 9 September 2020. They say she failed to vacate and the Adjudicator erred in awarding her compensation or reducing her rent for loss of amenity given the notice.
- [46]The agents say once the Form 12 issued, the Tribunal has no discretion but the tenant must vacate and thereafter the tenant is in unlawful occupation of the premises. Therefore any subsequent losses occurring cannot be claimed against the owner.
- [47]Issuing a Notice to Leave on the grounds of non-liveability does not of itself terminate a residential tenancy agreement. A residential tenancy agreement ends only in one of the ways listed in s 277 of the RTRAA. Issuing a Form 12 for non-liveability is not one of the ways. A termination order by the Tribunal is required. That is one of the ways.
- [48]After the Form 12 Notice to Leave was served and Ms Weaver failed to vacate the premises, the agents brought proceedings in the Tribunal to terminate her tenancy on the grounds of non-liveability. That application was heard and dismissed. The tenancy remained on foot.
- [49]Ms Weaver was not in unlawful occupation of the premises by ignoring the Form 12. Clearly the basis of termination on that ground was not made out.
- [50]This ground of appeal fails. Leave to appeal should not be granted.
Orders
- [51]Order 2 of the decision made below on 18 November 2020 is set aside. The claim for compensation for hail damage to Ms Weaver’s motor vehicle and the hire cost of a substitute vehicle during the period of repair is returned to the Tribunal for reconsideration with the hearing of additional evidence as deemed appropriate by the Tribunal below.
Footnotes
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294.
[3]Lyons v Building Services Authority & Anor [2011] QCATA 240 [13]
[4]Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
[5]Transcript 1-4 Line 13 to T1-6 L25
[6]Jonathan v Mangera [2016] QCA 86 [12] citing Pickering v McArthur [2010] QCA 341 [22]; and see PS Business Holdings Pty Ltd v Duncan & Anor [2010] QCATA 19 [16] citing Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435.