Bamfield v Zanfan Pty Ltd t/a Main Street Realty Caloundra

[2010] QCATA 1

CITATION: Bamfield v Zanfan Pty Ltd t/a Main Street Realty Caloundra [2010] QCATA 1

PARTIES:	Ian Raymond BAMFIELD (Applicant)
v
Zanfan Pty Ltd trading as Main Street Realty Caloundra ABN 62-079-169-903 (Respondent )

APPLICATION NUMBER:            APL004-10               

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: President

DELIVERED ON:   22 February 2010

DELIVERED AT:   Brisbane

ORDERS MADE:

1. Application for stay dismissed.

2. Application for leave to appeal dismissed.

CATCHWORDS : 

RESIDENTIAL TENANCIES  - NOTICE TO LEAVE FROM LESSOR’S AGENT TO TENANT – WHETHER RETALIATORY – Residential Tenancies and Rooming Accommodation Act 2008, s 291 – MEANING AND EFFECT – where tenant alleges that Notice to Leave was retaliatory pursuant to s 291

PROCEDURAL FAIRNESS – ALLEGATIONS OF BIAS AND WANT OF ADEQUATE HEARING – whether proceedings tainted by want of procedural fairness for bias, failure to read material, or failure to allow sufficient time for the hearing of the matter

Residential Tenancies and Rooming Accommodation Act 2008, s 291

APPEARANCES and REPRESENTATION (if any): Heard on the papers

REASONS FOR DECISION

1. Mr Bamfield is a tenant in a home unit at Bulcock Beach which is managed, for its owners, by real estate agents in Caloundra (Zayfan Pty Ltd, trading as Main Street Realty Caloundra). He has lived in the unit since November 2007 and the tenancy has been renewed from time to time with the last, current period expiring on 4 March 2010.

1. On about 19 December 2009 the real estate agents gave him a Notice to Leave in Form 12 under the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA). The form complies with RTRA s 326 except that, while it purports to be what is called (in s 326(1)(e)(ii)) ‘without grounds’, it goes on to give what purports to be a ‘ground’ for asking the tenant to vacate: that the owner has instructed the agent that it requires vacant possession at the end of the current tenancy agreement period.

1. Mr Bamfield brought proceedings in the Minor Civil Disputes jurisdiction of QCAT seeking to set aside the Notice to Leave and claiming for expenses, lost income and/or a refund of the rental bond. In an attachment to his application he sought an order that Main Street Realty pay him $5,000 before 1 March 2010 for relocation costs; in the alternative, for the refund of his bond; and, if I understand the attachment correctly, for an order that the Notice to Leave be set aside on the basis that it was a ‘…retaliatory eviction for standing up for my rights as a tenant…’.

1. The matter was heard by a Magistrate at Caloundra. She dismissed the claim and made no order in relation to the bond. Mr Bamfield brought an application for leave to appeal, and to stay the operation of her decision (the effect of which is that he must leave the premises by 4 March next).

1. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i). QCAT has power to make an order staying the operation of the decision until any appeal is finally decided: s 145(2).

1. Although Mr Bamfield’s applications were lodged on 20 January 2010 the transcript of the proceedings before the Magistrate, and of the spoken reasons for her decision, were not available until 19 February.

1. Mr Bamfield was contacted by telephone from QCAT on 16 February 2010 and asked if he wished to provide any further documents in support of his applications, or make any further written or oral submissions. He said he did not wish to do so.  It is difficult to see how anything more could possibly be said.  His application to the Magistrate was accompanied by a five page statement with attachments and he also filed, and gave the Magistrate at the hearing, another six page single-spaced statement with a large number of attachments.  His applications here are supported by two further affidavits (one of seven pages, and another of 18) with, again, a large number of attachments.

1. The documents reveal a long history of complaints by Mr Bamfield about various problems with the unit’s fixtures and fittings. One, allegedly relating to water leaking from the washing machine, is said to have resulted in personal injuries to him which are the subject of proceedings. The material goes, in minute detail, into the history of these defects, Mr Bamfield’s complaints about them and his allegations that many were not satisfactorily addressed.

1. Mr Bamfield’s complaints in relation to the proceedings before the Magistrate fall into two categories: first, that he was denied procedural fairness; and, secondly, that the Notice to Leave should have been set aside because it was ‘retaliatory’.

1. The first ground relies upon allegations that the learned Magistrate did not read, or properly read, the material he placed before her; that the proceedings were too rushed (and, by implication, that he was denied sufficient time or opportunity to present his case); and, that her decision was tainted by bias against him.

1. The first assertion is not supported by the transcript of the proceedings. Although one of Mr Bamfield’s statements had not, apparently, reached the Magistrate by the time the hearing commenced he provided her and the respondent and the respondent’s representatives with a copy. The transcript contains statements and questions from the Magistrate which were plainly based upon Mr Bamfield’s assertions in those statements. There is a passage in the transcript after the learned Magistrate delivered short reasons in which she denied having seen some references Mr Bamfield had supplied but, shortly afterwards, said she had actually read them.  Nothing turns upon this: the references confirm that Mr Bamfield took very good care of the unit – something the Magistrate had already remarked upon in the course of the hearing.

1. The allegation that the proceedings were too rushed is, again, unsupported by the transcript. This was, notwithstanding the large amount of material provided by Mr Bamfield, a relatively simple case with, in truth, only one central issue – whether or not the Notice to Leave was retaliatory. The learned Magistrate properly focused upon that question and, the transcript shows, allowed herself sufficient time to do so. Her conduct of the proceedings and in particular her questions to both parties show a proper focus upon that central issue, and it is difficult to think what else could have been said or done.

1. The allegation of bias concerns an exchange recorded at pp 9-11 of the transcript. The real estate agent complained that Mr Bamfield had used offensive language, and behaved in a threatening manner to staff in the agent’s office during an incident in December 2009. It was alleged, in particular, that he said to a female agent ‘… you’re a bit of trash’. In an exchange at the hearing with Mr Bamfield, the learned Magistrate focused upon this passage and suggested it was not language Mr Bamfield would have used to a man. He denied saying it, but admitted that when he entered the office ‘…possibly I was really pissed off’.

1. Unsurprisingly, the learned Magistrate appears to have relied upon that admission, and the language in which it was couched, to reject Mr Bamfield’s denials and to find (transcript, p 11) that he had used offensive language to the agents.  That finding, about a central matter of credit, is unexceptionable. 

1. Otherwise, the passage does not show bias, whether based upon gender or any other factor, against Mr Bamfield. It is, however, relevant to the allegation that the Notice to Leave was retaliatory.

1. RTRA s 291 provides that a lessor may give a Notice to Leave without stating a ground, but cannot do so simply because the tenant has brought proceedings under the legislation, complained to a government entity about an act or omission of the landlord, taken some other action to enforce the tenant’s rights, or because some order has already been made. Under s 291(3) the lessor ‘…may not give a Notice to Leave under this section if the giving of the notice constitutes taking retaliatory action against the tenant’.

1. The decision does not address the fact that the Form 12 was wrongly filled out (a tick was inserted in paragraph 4 to the effect the notice was ‘without grounds’; but, purported grounds are actually set out in paragraph 5). In his statements Mr Bamfield challenges the truthfulness of the agent’s assertion, in paragraph 5, that the owner had instructed that it required vacant possession. There was evidence, in the form of an email, suggesting the owner had given instructions to that effect.

1. In his statements Mr Bamfield hypothesised about the owner’s motives and alleged the agent may have fabricated the email. His allegations seem inherently improbable, and were unsupported by any evidence.  There was no reason to doubt the agents were acting on instructions, and passing them on as the owner’s ‘grounds’ in the notice. As will be seen, however, nothing turns upon that.  

1. Under the ‘General Tenancy Agreement’ of the kind the parties signed here the tenancy ends on the day agreed in writing (RTRA, s 277(2)) but continues as a periodic tenancy unless a Notice to Leave is given: RTRA Regulation 2009, Schedule 1, Part 2, Division 2 (‘Standard Terms’) clause 6.  A Notice to Leave from the lessor operates to end the tenancy if the tenant hands over vacant possession on the nominated day: RTRA s 277(3).

1. RTRA Chapter 5, Part 1, Division 2, Subdivision 2 governs the circumstances in which a lessor may give a Notice to Leave: relevantly, here, for unremedied breach (s 281); non-compliance with a Tribunal Order (s 282); frustration of the agreement (s 284); if the premises are being sold (s 286); or, ‘without grounds’ (s 291).  The word ‘grounds’ is not defined in the RTRA but, in context, appears to encompass the matters raised in those provisions.  The purported ‘ground’ set out in the notice here – that the owner requires vacant possession – does not comfortably fall under any of them.  Hence the learned Magistrate was right to treat the Notice to Leave as ‘without ground’ and, therefore, one upon which s 291 might operate.

1. It is unclear where the onus of proving a Notice to Leave was, or was not, retaliatory lies under the section. In its ordinary meaning, to ‘retaliate’ is to return like for like, especially evil for evil; or, requital; or, to take reprisals (Macquarie Dictionary).  It connotes a causal connection between the initial act, and the act said to be retaliatory; and, looks to the nature of each act, and the motivation of the second actor. 

1. Although similar provisions have now appeared on legislation governing the landlord/tenant relationship for some time (Residential Tenancies Act (Qld) 1994, s 165; (Vic) 1997, s 266; (NSW) 1987, s 65), it does not appear that their meaning and effect has received judicial attention. There have been some decisions in the NSW Consumer, Trader and Tenancy Tribunal concerning s 65 which focus upon the ‘motivation’ of the landlord in giving the notice; they reflect the wording of the NSW section, which asks whether the ‘…landlord was wholly or partly motivated to give notice of termination by …’ the kinds of matters set out in (Qld) s 291(2)[1].

   [1] Nuta v Fahey [2002] NSWCTTT 10; Short v Fedderson [2000] NSWRT 239; Harris Tripp P/L v Sinanovic [2005] NSWCTTT 303; Ni & Ngo v Kovska [2005] NSWCTTT 106; Harken & Cavanagh v Moon [2007] NSWCTTT 465; Public Trustee of NSW v Gourley [2008] NSWCTTT 788; Ferguson v Borg [2009] NSWCTTT 673

1. Section 291(3) requires careful consideration of the particular circumstances of each case in which it is raised. If ‘retaliatory’ is construed too broadly, almost any complaint by a tenant to an agent or landlord, or even a less than amicable exchange between them, might qualify.  It is improbable the legislature intended that the provision would provide the tenant with such an absolute shield.

1. Rather, the section appears to be designed to protect the tenant who has justifiably taken action of the kind set out in s 291(2) (or something similar has occurred, like non-compliance with an unwarranted or unjustified notice to remedy under s 281) and has then been served with a Notice which is apparently responsive to the tenant’s acts but also, in the prevailing circumstances, unreasonable, excessive or vindictive.

1. It follows that in each case the decision-maker is required to consider the particular facts and circumstances which arise, and determine whether or not they can fairly be categorised as falling within the section.

1. Here, the relevant circumstances included a long tenancy during which the tenant had regularly asserted his rights in respect of defects in the premises, none of which resulted in a Notice to Leave being issued. Shortly after an incident in which his conduct was offensive, however, a notice was served.  That a lessor might reasonably determine that conduct of that kind towards its agents should not be countenanced is hardly surprising. 

1. The learned Magistrate said this:

… I think the situation between the agency and the tenant, I had no evidence that it is retaliatory; I would have to make the decision on the balance of probabilities, that it is retaliatory. You do appear to look after the property well, but as valid a reason for it being retaliatory, for asking for some things to be repaired, which in fact were – another explanation is that the agents don’t appreciate your behaviour, and passed this on to the owner (transcript of hearing, p 11).

And:

I will refuse your application today. I am sorry, but I do not consider it retaliation (transcript of decision, p 2).

1. These passages indicate a conclusion, on the Magistrate’s part, that the Notice was causally connected to an event which involved unacceptable behaviour by the tenant, but it was not retaliatory in the sense s 291 envisages because the conduct leading to it did not involve any assertion of a right by the tenant, followed by a retaliatory act.  It was, rather, conduct which persuaded the owner that its relationship with the tenant should not continue.

1. Other evidence before the Magistrate supported that conclusion: in particular, the fact that he had reported defects or problems or complained about them regularly during the tenancy and had never, previously, been given a Notice to Leave.

1. She was also entitled to conclude, on the basis both of the evidence and of Mr Bamfield’s actual conduct during the hearing that his behaviour towards the agents had been offensive and unpleasant, and that it was this conduct which, on the balance of probability, lay behind the notice. 

1. Although her reasons are terse the learned Magistrate, it may safely be inferred, determined that the Notice followed upon Mr Bamfield’s behaviour but was not retaliatory in the sense intended by the provision. That conclusion was, for the reasons just set out, open to her and not, in the circumstances, erroneous or unreasonable. The learned Magistrate was also correct to refuse the relief sought in respect of the bond (which was premature) and compensation. 

1. There is, then, no demonstrated or discernable error in the learned Magistrate’s decision. An appeal would inevitably fail. All the arguments open to Mr Bamfield have been canvassed; there is no question of importance about which further argument and a decision of the Appeal Tribunal would be of public advantage[2]. Leave to appeal should, then, be refused.  In the absence of leave the application for a stay becomes futile.

   [2]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577.