Smith v Pilmore[2022] QCATA 49

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Prior to 8 October 2019 the appellant rented a room in the respondent’s house from the respondent.^[1]  There was no written tenancy agreement.  After the appellant vacated the room, the respondent brought a claim against her in the Tribunal for $1,394.50, including the filing fee.  Following a hearing on 10 January 2020 a Member^[2] ordered the appellant to pay the respondent $879.20.  By this application the appellant seeks leave to appeal against that decision.
2. [2]
   Because this matter was a minor civil dispute, leave is required to appeal to the Appeal Tribunal.^[3]  As a general proposition, when leave to appeal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.^[4] In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1).  The Tribunal was also required to comply with the QCAT Act s 28 and s 29.  An Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the finding, and it is not contrary to compelling inferences.^[5] 

Extension of time

3. [3]
   The appellant was present when the decision of the Tribunal was given, but the application for leave to appeal was not filed until 26 February 2020.  The QCAT Act provides for such an application to be filed within twenty-eight days from the relevant date, which will be the date of the decision if the appellant was present, unless she has requested written reasons for the decision under s 122 of the QCAT Act.  That section permits a request to be made to the Tribunal for written reasons within fourteen days after the decision takes effect, here 10 January 2020: s 127.  The Tribunal may comply with that request by providing an audio recording of the part of the proceeding in which the reasons are given orally: s 123(2). 
4. [4]
   The appellant said in submissions attached to the application for leave to appeal that an estimate of costs for an audio link was sent to the appellant on 20 February 2020, accepted the same day, and the link was provided on 24 February 2020, after which the application for leave to appeal was filed promptly.  It is not clear whether there was a request to the Tribunal and if so when it was made, although it may be that a provision of an audio link to the proceeding by Auscript could be regarded as compliance with s 123(2).   An extension of time can be given,^[6] and is sought in the application. 
5. [5]
   It has not been shown that the appellant comes within s 143(5)(c), so on the face of it the time for filing the application for leave expired on 7 February and the application was nineteen days late.  In the circumstances the appellant has acted reasonably, and there has been no prejudice shown to the respondent from the delay, so if there is otherwise reason to grant leave to appeal, I would allow an extension of time. 

Background

6. [6]
   The respondent rented a room in his house to the appellant in April 2019.  There was no written agreement, according to the respondent at the request of the appellant, but the rent was agreed.  The period of the arrangement was not fixed, the relationship between the parties soon broke down, and the applicant stopped paying rent.  Before the appellant moved out she agreed that the amount outstanding for rent was $1,473.90.  The respondent agreed that there was an amount of $499 to be set off for a dishwasher purchased by the appellant and left in the house.  There was some discussion about the appellant selling the respondent some furniture she was using, but the respondent said that no agreement was ever reached. 
7. [7]
   The appellant had a dog which she kept in her room.  After she vacated, the respondent said that the carpet was stained, there was dog hair everywhere, and the room was generally dirty.  The respondent also claimed $300 for cleaning costs, and the filing fee of $120.50. 

Grounds of appeal

8. [8]
   The matter raised on appeal, which had already been raised before the Member, was that the arrangement was not covered by the Residential Tenancies and Rooming Accommodation Act 2009 (Qld) (“the Act”), because the appellant was a lodger and such a person is not within the scope of the Act.  The argument was that the appellant did not have full control over the room she occupied, because the respondent retained a key to it, and although she had the exclusive use of a toilet the bathroom she used was shared with the family, as were the living areas.  The respondent was the owner occupier of the whole house.  The respondent disputed that the family shared that bathroom, or that she shared the living areas of the house, because her room covered both sleeping and living areas, and included a kitchenette. 
9. [9]
   It was also submitted that the operation of the Act was excluded by s 44(1), on the basis that the house was the respondent’s only or main place of residence, and the room occupied by the appellant was the only room occupied or available to be occupied by a resident.  The applicant was the only person who paid to live at the house, and there were no other rooms made available to be rented similarly to others. 

Consideration

10. [10]
    The Act provides in s 12 that a residential tenancy agreement is an agreement giving a right to occupy residential premises as a residence.  The room or rooms occupied by the appellant in this case were premises as defined in s 9, and as they were intended to be lived in they met the definition of residential premises in s 10.  It does not matter if the right to occupy is or is not exclusive, or whether the agreement is oral or implied, but (subject to s 18, which does not apply here) a rooming accommodation agreement is not a residential tenancy agreement: s 12(4). 
11. [11]
    So on the face of it this was a residential tenancy agreement (subject to s 12(4)); but the Act does not apply to all residential tenancy agreements: s 29.  Relevantly, the Act does not apply if the tenant is a boarder or lodger: s 32.  These terms are not defined in the Act.  In popular usage they are probably interchangeable, although strictly a boarder is someone who is provided with “board”, ie some meals, as well as a room or rooms to live in, whereas a lodger is someone who gets only accommodation.  This distinction was recognised by the then President of the Tribunal, A Wilson J, in Mann v Hamilton Island Enterprises Ltd [2012] QCATA 142, where it was held that a self-contained unit made available by an employer for employee accommodation was not excluded from the Act under s 32.  His Honour said at [23] that the retention of a key or master key to the premises was not decisive. 
12. [12]
    Clearly the appellant was not a boarder. The Act provides in s 433 a number of matters to which the Tribunal must have regard in considering whether a person is a lodger.  This includes the extent to which the respective parties have control over the premises, whether the respondent also resided at the premises (which in context must mean the premises as a whole, not just the part occupied by the tenant), whether services are provided to the tenant, whether facilities are shared, and anything else the Tribunal considers relevant.  There was a dispute over the extent of control, although it was clear that towards the end of the period of occupation, the respondent was unable to access the main room used by the applicant as she had fitted her own lock.  That she did this, and that the respondent let her, suggests a common understanding that she had exclusive possession of that room at least. 
13. [13]
    There was a dispute at the hearing about whether the appellant had exclusive use of a bathroom, which the Member does not seem to have resolved.  The issue of the provision of services was also disputed at the hearing, and it is not clear that all relevant aspects of this were considered by the Member.  Although her room had a kitchenette, the reference to the dishwasher suggests that she had some access to the kitchen in the house, and of course she would have had to access parts of the house to reach the toilet and bathroom she used.  On the respondent’s case, he was also storing furniture for her in parts of his house not covered by the agreement, which was another service provided.  The absence of a bond or a written agreement also strike me as factors supporting the proposition that the appellant was a lodger rather than a tenant. 
14. [14]
    The Member concluded that the appellant was not a lodger or a boarder, although there was no detailed analysis of the relevant matters in s 433.  This makes it difficult to assess whether there was some error of law in arriving at that conclusion, unless it can be said that a conclusion that the appellant was a lodger was the only one open on the evidence.  The Member went on to say that what the parties had was a rooming accommodation agreement. 
15. [15]
    The Appellant met the definition of “resident” in s 14 of the Act.  “Rooming accommodation” is defined in s 15 as accommodation in which a person has the right to occupy one or more rooms in premises in return for the payment of rent, where the rooms are not a self-contained unit, and shares other rooms or facilities with one or more other residents.  Whether or not the appellant had exclusive possession of all three rooms, they were not a self-contained living unit, and some use had to be made of parts of the rest of the house, if only to access the rooms.  It appears as well that there was also some sharing of facilities, but that was not the subject of any express finding by the Member.  On the face of it however the definition in s 15 was met. 
16. [16]
    It follows that the agreement between the parties was a rooming accommodation agreement under the Act, as it met the definition in s 16, so long as the respondent was a provider, and no other provision of the Act excluded this agreement.  The definition of “provider” in s 17 was met, but the appellant relies on s 44(1)(a) of the Act, which excludes the operation of the Act if the accommodation is provided by a person in premises in which the person also lives, and not more than three rooms in the premises are occupied, or available to be occupied, by persons who meet the definition of “resident” in s 14.  It is clear from the evidence before the Member that this exclusion applied.  The respondent lived in the house, and only one room was available to be rented by anyone else.  Accordingly by s 44(1)(a) the agreement in the present case was not a rooming accommodation agreement to which the Act applied. 
17. [17]
    It follows that, if the Member was giving relief on the basis that the Tribunal had jurisdiction under the Act because this was a rooming accommodation agreement to which the Act applied, there was an error of law.  The true position was that it met the definition of a rooming accommodation agreement, but it was not one to which the Act applied.^[7]  The fact that it was a rooming accommodation agreement however means that it was not a residential tenancy agreement, being excluded from the definition in s 12 of the Act by s 12(4).  Accordingly the proposition advanced by the appellant, that it was not an agreement to which the Act applied, was correct, and relief under the Act was not available from the Tribunal. 
18. [18]
    I should say that it is not at all clear that the Member was purporting to give relief to the respondent under the Act.  The proposition that the agreement was a rooming accommodation agreement was correct, as I have explained, and it follows that it was not a residential tenancy agreement.  It therefore did not matter whether s 32 applied.  The application of the Act was excluded by s 44(1)(a).  It is quite possible that the Member was analysing the position in the same way I am.  Unfortunately the reasons given during the hearing are not clear enough to know on just what basis jurisdiction was exercised. 
19. [19]
    Inadequate reasons amount to an error of law, but in this case the Member must have concluded that the Tribunal had jurisdiction to resolve the dispute, because the Member proceeded to do so.  I agree with the conclusion that the Tribunal had jurisdiction, as I shall explain, and in those circumstances any inadequacy in reasons does not give rise to any injustice to the appellant.  There is no reason to think that, if the Member thought the jurisdiction was under the Act, the decision would have been any different if the matter had been dealt with under the QCAT Act. 
20. [20]
    The respondent never sought from the Tribunal relief under the Act.  His original application to the Tribunal was an Application for minor civil dispute – minor debt.  The form appropriate for initiating a proceeding under the Act was not used, correctly since relief from the Tribunal was not available under the Act.  By the QCAT Act the Tribunal has jurisdiction to hear and decide a minor civil dispute, which includes a person who claims to be owed a debt or liquidated demand of money under $25,000: the QCAT Act s 12(1), (4)(a). 
21. [21]
    The fact that the Act did not apply to the agreement between the parties did not render it invalid, and it was still enforceable as a contract.  Under that contract, the unpaid rent stood as a debt owing by the appellant to the respondent.  If there was a breach of an implied term of the contract as to taking reasonable care of the rooms occupied, a claim for the amount paid for cleaning was a liquidated demand, being liquidated damages.  The respondent’s claim was therefore one for which the Tribunal properly had jurisdiction, under the QCAT Act s 12. 
22. [22]
    The grounds of appeal advanced by the appellant focused on the question of jurisdiction of the Tribunal, and the application of s 32 and s 44(1)(a) of the Act.  There was no challenge by the appellant to any of the conclusions reached by the Tribunal, as to the amount actually payable.  An argument could have been mounted for the proposition that there was no implied term to pay for the cleaning of the room at the end of the period of occupation, although it seems clear enough from the photographs that the room was left a mess.  On the other hand, the basis on which an allowance of $500 was made in favour of the appellant for some use, said to have been made by the respondent and his family, of the appellant’s furniture which was stored in other parts of the respondent’s house strikes me as dubious; but there was no cross application for leave to appeal.  It may be that the outcome can be supported on the basis of an application of the QCAT Act s 13(1).  I do not need to consider these matters further. 
23. [23]
    There is little authority on the operation of these provisions of the Act, and because of the vagueness of the concept of “lodger” the issue is of some public importance.  Strictly speaking however I have not decided this matter on the basis of the scope of that term, since on my analysis the issue did not arise for decision.  If I gave leave to appeal, the appropriate course would be to dismiss the appeal, so I do not propose to give leave to appeal. It follows that I should refuse to extend the time for filing the application for leave to appeal.