Giffing v Demy-Geroe[2021] QCATA 65

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is this appeal about?

1. [1]
   Andrew Lewis Demy-Geroe resided in his mother’s property for many years. When his mother lost capacity, the Tribunal appointed his brother, George Michael Giffing, as Administrator.^[1] The Tribunal authorised Mr Giffing to permit Mr Demy-Geroe to continue to reside in the property.^[2] Conditions were that Mr Demy-Geroe pay below- market rent of $100 per week and he maintain the property and grounds.^[3]
2. [2]
   Mr Demy-Geroe did not pay. He vacated on 17 September 2019. Mr Giffing claimed compensation of $5,103.40. An adjudicator dismissed his claim because it did not comply with residential tenancy requirements.^[4] 
3. [3]
   Unfortunately, the learned Adjudicator did not consider the threshold issue of whether the arrangement was a residential tenancy.^[5] Mr Giffing was not given sufficient opportunity to submit evidence about the arrangement. Certainly, he has submitted evidence with his appeal^[6] that raises the issue of whether Mr Demy-Geroe was a boarder or lodger.^[7] If so, the residential tenancy requirements do not apply^[8] and the Tribunal would have jurisdiction to determine the claim as a minor debt.^[9] That is not to say that the arrangement is not a residential tenancy. It was simply not considered an issue. This failure to take into account a relevant consideration is an error of law.
4. [4]
   Similarly, if the arrangement was a residential tenancy, the learned Adjudicator did not consider whether the claim was an urgent money claim against the tenant for remaining in possession.^[10] If it was, then Mr Giffing did not need to first make a dispute resolution request^[11] - at least for the period of occupation after “termination” on 11 September 2019 to vacating on 17 September 2019. This is also an error of law. 
5. [5]
   Leave is granted and the appeal allowed due to these errors of law.^[12] The decision of 19 June 2020 is set aside. The matter is to be remitted to the learned Adjudicator to determine the legal nature of the arrangement.^[13] Upon doing this, the learned Adjudicator can then make appropriate findings about whether residential tenancy requirements apply and whether any compensation is payable.
6. [6]
   The rehearing will proceed on the basis of testimony at the rehearing together with the evidence already filed by the parties, including the evidence filed with the Appeal. To the extent that this is fresh evidence, it is allowed on the basis that it is on its face credible and could have an important impact on the outcome.^[14]
7. [7]
   Unless the Tribunal otherwise orders, all witnesses must attend the rehearing in person for cross-examination. Any application for a witness to attend the hearing by a remote means or by remote conferencing must be made prior to 14 days before the rehearing.