Hughes v Fogarty[2022] QCATA 190

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction 

1. [1]
   In this tenancy dispute Fogarty and Parker (`the tenants”) seek to recover $3,400, being rent paid to Hughes (`the lessor’) for 40 days after their premature departure from a unit at Main Beach (`the premises’).^[1]  This matter began as a residential tenancy dispute entitled Fogarty and Parker v Jamesimone Pty Ltd on 24 November 2020.
2. [2]
   The tenants’ lease commenced on 21 August 2019 and was due to expire on 20 August 2020. It records Merryn Hughes^[2] as the lessor, and James Hall, trading as The Waratah Main Beach Apartments as agent. Subsequently Hall retired as agent, to be replaced by an entity described in the original application^[3] as Jamessimone Pty Ltd, of 22 Montgomery Avenue Main Beach.
3. [3]
   The tenants are citizens of New Zealand. They vacated the premises informally^[4] on or about 11 July 2020^[5], when amid the Covid emergency, New Zealand was about to close its borders.

Balance of rent paid, payment regretted

4. [4]
   The tenants tried to persuade the lessor to release them from further rent, but she refused, on the basis that the lease was still extant, with several weeks yet to run. So as non-lawyers, in good faith and to keep the peace as they saw it, the tenants paid the balance of $3,400.^[6]
5. [5]
   But subsequently the tenants gained the impression that shortly after their departure the lessor allowed someone else to occupy the premises. It was then that they sought reimbursement of the amount spent on `paying out’ the lease.

Action for reimbursement

6. [6]
   On 24 November 2020 the tenants filed an application against Jamesimone bearing this endorsement:

[We] are seeking reimbursement for rent from the period 11 July 2020 to the expiry of [our] lease being 20 August 2020. [We] had advised the onsite manager that [Kerry] Parker’s work had shut down during Covid which meant [we] had no ongoing income. ... The onsite manager checked with the [lessor] and was told by [her] that they could leave early but would have to pay out the lease to 20 August. They did this despite their financial position and then left for NZ. ... In the meantime Ms Fogarty found out that the apartment was being occupied by other people from 11 July. ... They believe their rent should be reimbursed from the moment another occupant took possession of the property. ... They are seeking reimbursement of $3,400 being 40 days’ rent based on a weekly rent of $595 and covering the period 12/7/20 to 20/8/20.

7. [7]
   In response the then respondent pleaded^[7]:

The Respondent is not a lessor, tenant, provider or resident. The Respondent was the lessor’s agent, as the lease makes clear. It follows that QCAT cannot make any orders against the Respondent.

 Change of parties

8. [8]
   The matter first came before the tribunal on 3 February 2021 when procedural changes were made. The lessor Merryn Hughes was joined as respondent and the agent Jamesimone Pty Ltd was removed from the record.^[8] Jackie Hensleigh was removed as a representative applicant.^[9] The order was as follows:

Jackie Hensleigh [is] removed as applicant. Leave is granted to Ms Hensleigh to appear on behalf of the applicants. Merryn Hughes [is] joined as a respondent to the proceeding and a copy of the application^[10] and notice of hearing be served on her.

The substantive trial

9. [9]
   The case was then adjourned to 13 April 2021, when it came before a different adjudicator. Ms Hensleigh appeared for the applicants; the respondent lessor, Hughes, did not appear. There was no discussion of, or inquiry about Hughes’ absence, and no evidence that the amended application was served upon her was adduced.
10. [10]
    The tribunal found that the premises were occupied by `someone else from the 11th day of July 2020’ as the tenants alleged.^[11] However, it ordered Hughes to pay the tenants the amount claimed, namely $3,400.^[12]
11. [11]
    A stay of that order was granted on 10 August 2021,^[13] and the lessor now seeks leave^[14] to appeal (`the appeal application’).^[15]
12. [12]
    One of several proposed grounds of appeal reads as follows:

The 13 April [2021] decision, which orders me to pay the [tenants] $3,400 is fundamentally flawed because I was never served with the application amended by the Tribunal on 3 February [2021].

The Tribunal Member erred in making the order against me on 13 April without requiring and obtaining proper proof of service of the amended application.

13. [13]
    These allegations are repeated in the lessor’s submissions in support of the leave application.^[16]
14. [14]
    On 25 June 2021 the Tribunal made the record of these proceedings available for inspection by the parties. The lessor, after doing so, made this submission:

The file in this matter does not contain a Certificate of Service [sic] in relation to any application [served] upon me.^[17]

15. [15]
    That submission is now confirmed by a search of the file by registry staff. I accept that evidence.
16. [16]
    The tenants, by their representative, were at liberty to make their own inspection. Whether or not they did so, they do not dispute the lessor’s claim that no amended application was served upon her. However, they contend:

We received a copy of the Notice of Hearing ... set down for 13^th of April 2021. {Hughes] would also have received the Notice of Hearing and would have had ample time to seek a copy of the application from QCAT if she had not received it.^[18]

 Service of amended claim?

17. [17]
    The file does include a copy Notice of Hearing addressed to the Lessor. But it is not an impressive document. Contrary to regular practice the certificate of service endorsed upon it does not identify the certifier, and does not specify the date on which it purports to have posted the notice. The `signature’ upon it is an indecipherable squiggle. If that document did reach the addressee in time it is difficult to believe that a party who now diligently presents her case would not appear to register a protest. 
18. [18]
    Besides, a notice of hearing is not notice of the claim. The onus of serving and proving service of a proper, particularised claim rests squarely upon the claimant.^[19] That is an elementary principle of litigation, understandable without any need of advanced legal training. As a former President of QCAT emphasised:

It is common knowledge that the jurisdiction is a busy and demanding one, in which parties are expected to present their own cases, and act in their own best interests.^[20]

In the context of the legislation and the demands upon public resources like those which fund QCAT it is not unreasonable to impose, upon a party, an expectation and an obligation that it will ensure it acts in its own best interests, or accept the consequences..^[21]

19. [19]
    The subject of a civil claim is not expected, and should not be expected to ferret out and serve upon himself a notice of an adverse claim. It is not good enough to tell an opponent, in effect: `By the way, I am taking you to court next week. You had better try to find a copy of what I’ve alleged against you.’ That is as untenable as it would be audacious.

Natural justice principles

20. [20]
    It is a legal axiom that a party charged or faced with a civil claim is entitled to adequate notice of claim against him^[22], and a full and fair opportunity to present his case.^[23] It is no suggestion of conscious fault on anyone’s part to affirm that in this case those requirements of natural justice were plainly not satisfied.
21. [21]
    At this stage it is unnecessary to deal with the other grounds foreshadowed in the appeal application.

Resolution

22. [22]
    The subject decision and order must be set aside, and the matter must be remitted to the registry for rehearing, on a date to be fixed, by a different adjudicator.

ORDERS

1. Leave to appeal is granted.
2. The appeal is allowed.
3. The decision and orders made herein on 13 April 2021 are set aside.
4. The proceedings are remitted to the registry for rehearing on a date to be fixed, by a different adjudicator.