Egan v Narasimhan

[2022] QCATA 74

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION

Egan v Narasimhan [2022] QCATA 074

PARTIES:

ANTHONY EGAN

(applicant)

v

SATHYA NARASIMHAN

(respondent)

APPLICATION NO:

APL168-21

MATTER TYPE:

Residential tenancy matters

DELIVERED ON: 

6 June 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where sub-tenancy – where sub-tenant unlawfully evicted – where sub-tenant claims refund of rent overpaid and bond improperly retained by lessor – where lessor claims right to retain bond for breaches of agreement – where lessor fails to prove breaches – where sub-tenant awarded return of bond and rent overpaid – where lessor seeks leave to appeal – where application for leave dismissed

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 61, s 143
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 12, s 419, s 420, Second schedule
4Walls Ltd t/a Compass Qld v Kjaer-Olsen [2014] QCATA 278

Abalos v Australian Postal Commission [1990] HCA 47;(1990) 171 CLR 167

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Cornell v Henderson [2013] QCATA 1

Dept of Housing and Public Works v Roesen [2014] QCAT 55
Devries v Australian National Railways Commission (1993) 177 CLR 472

Drew v Bundaberg Regional Council [2011] QCA 359

Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330
Fox v Percy (2003) 214 CLR 118
KM Shaw, Estate of v Waddell [2014] QCAT 155

LemongroveServices Pty Ltd trading as Reimer Winter Williamson Lawyers and Anor v Rilroll Pty Ltd and Ors [2019] NSWCA 174

QUYD Pty Ltd v Marvass Pty Ltd  [2009] 1 Qd R 41

Reihana v Beenleigh Show Society [2019] QCATA 91
Sali v SPC Limited (1993) 67 ALJR 841http://

The Pot Man Pty Ltd v Reaoch [2011] QCATA 318

APPEARANCES & REPRESENTATION:

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

Introduction 

1. In 2020 the applicant (`Egan’) was tenant of a home unit at Lawson Street Southport. From 4 June 2020 to 27 August 2020 Egan shared the unit with the respondent (`Narasimhan’).[1] Narasimhan’s occupancy was subject to a wholly oral agreement between the parties.[2] According to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (`RTA’) it is permissible to make a tenancy agreement that is undocumented.[3]

   [1]Transcript of hearing 15 June 2021 (`T’) page 27 lines 30-32.

   [2]T page 14 line 23, page 27 line 1.

   [3]RTA s 12(3)(a), s 61(6)(b).

2. Effectively, as the tribunal found, Narasimhan was a sub-lessee from Egan.[4] Under their agreement Narasimhan paid a bond of $1,200[5] and rent at the rate of $300 per week in advance.[6] No receipts were given[7] and no ledger was kept.[8]

   [4]T page 12 line 44, page 19 line 23, page 28 lines 1, 11.

   [5]In fact Egan did not transmit this amount to the Residential Tenancies Authority as required by law: T page 13 line 46, page 29 line 27.

   [6]T page 28 line 20.

   [7]T page 8 lines 6ff.

   [8]T page 20 line 39.

3. Before proceeding further, it should be explained that, while these proceedings began as a simple claim for debt, they were reclassified as a tenant’s compensation claim[9] by interlocutory order on 28 May 2021,[10] and by the tribunal at the trial.[11]

   [9]T page 27 line 45.

   [10]T page 27 lines 35-36; QCAT Act s 61.

   [11]T page 12 line 44, page 19 line 23, page 28 lines 1, 11.

   An irregular eviction

4. In or about August 2020 Egan formed the view that Narasimhan was guilty of objectionable behaviour of various kinds, including certain unlawful conduct.[12] Egan reported some aspects of it to the police[13], but there is no evidence that any police action followed.

   [12]As detailed by Egan at T page 16 lines 12-26.

   [13]T page 16 line 39.

5. By a text message sent to Narasimhan on 27 August 2020[14] Egan purported[15] to terminate the tenancy, and actually removed Narasimhan’s possessions from the unit.

   [14]T page 28 line 24.

   [15]Several irregularities in this action are noted by the adjudicator at T 18 lines 1-7. The proper form of termination notice under the RTA is prescribed in Form 12.

The tenant seeks a refund

1. On 18 January 2021, within six months of the de facto eviction,[16] Narasimhan filed the minor debt claim for $1,800[17] which, as noted above, was later deemed to commence a residential tenancy dispute.

   [16]A special limitation period is applied to breach of tenancy terms by s 419(3) of the RTA.

   [17]Return of bond $1,200,  refund of rent overpaid $600.

   Refund ordered and challenged

2. Trial of the matter took place on 15 June 2021, when the tribunal ordered Egan to pay to Narasimhan the sum of $1,625.40 within 14 days.[18]

   [18]Amount of bond $1,200, adjusted claim for rent $300 and $125.40 filing fee.

3. Egan now seeks leave[19] to appeal that decision[20] on the following grounds:

   [19]See QCAT Act s 143(1)(a).

   [20]Application for leave to appeal filed 17 June 2021.

   (i)      The adjudicator erred on facts of law [sic];

   (ii)      The adjudicator denied the applicant procedural  fairness;

   (iii)     The adjudicator manipulated facts of the matter;

   (iv)     The adjudicator had no jurisdiction to hear the claim; and

   (v)      The respondent’s claim is time barred.

   Ground (i)

4. This ground as it stands is far too broad and vague to warrant discussion.

   Ground (ii)

5. A bald and sweeping complaint of denial of natural justice or procedural fairness may serve as an outlet for emotional dissatisfaction but without particulars it is not a substantial ground of appeal. No specific unfairness is identified. A careful reading of the transcript discloses no discourtesy to Egan or bias against him. Questions to each party were to the point, designed to clarify the issues, and to advance the resolution of the dispute. Egan raised no objection to the manner in which his submissions were received. Before moving to her decision the adjudicator specifically asked him whether there was any further `question or comment’ that he wished to present. He replied: `No, nothing’.[21]

   [21]T page 26 lines 18-21.

6. There is no substance in this ground.

Ground (iii)

1. The use of the word `manipulated’ is unfortunate, and no particulars of the alleged manipulation are given. In common with Ground (i) the submission is insubstantial and therefore is rejected.

   Ground (iv)

2. Two members of the tribunal were satisfied that the matter was a residential tenancy dispute within the meaning of the RTA,[22]and therefore within the jurisdiction of QCAT.[23] Alternatively the application could have been treated as a claim for moneys had and received. The case of Shaw, referred to in written submissions, but not cited at the hearing, was a first-instance decision based on its own facts. There the applicant did not show `any particular breach of a particular agreement’.[24] That is not so here. Furthermore, jurisdiction was absent in Shaw because the application was filed after a mandatory time limit had expired.[25]

   [22]RTA s 12.

   [23]RTA s 419, Schedule 2 definition of `tribunal’.

   [24]Estate of K M Shaw v Waddell [2014] QCAT 155 at [39].

   [25]Estate of K M Shaw v Waddell [2014] QCAT 155 at [40].

3. As noted above, a tenancy agreement need not be in writing. Nor need it confer exclusive possession on the tenant.[26]

   [26]RTA s 12(2).

4. Ground (iv) is not sustainable.

   Ground (v)

5. The assertion that Narasimhan’s application was filed out of time is simply incorrect. Narasimhan became aware of the breach on or about 27 August 2020. He filed his application on 18 January 2021, well within the special time limit.[27]

   [27]RTA s 419(3).

6. Accordingly Ground (v) must be rejected.

Egan’s authorities

1. Egan claims that he cited three authorities to the adjudicator[28] but none of them appears in the transcript. 4Walls concerns a notice to leave on suspicion of illegal activity. A formal notice to leave is required.[29] Egan’s informal notice by email[30] did not mention illegal activity. Particulars and a signature are required. These requirements were not satisfied in this case.[31] 4Walls also involved a termination order. None was sought here.

   [28]Submissions attached to application for leave paragraph 31. Namely: 4Walls Ltd t/a Compass Qld v Kjaer-Olsen [2014] QCATA 278, Cornell v Henderson [2013] QCATA 1 and Dept of Housing and Public Works v Roesen [2014] QCAT 55.

   [29]RTA s 290A, Form 12.

   [30]T page 28 line 24.

   [31]T page 18 lines 1ff.

2. Cornell was a bias case. No bias has been shown here. Dept of Housing has nothing to do with the RTA. It concerns a decision under child guardianship legislation about the grant of a blue card to a man already convicted of serious assault. Its relevance to the present case is to say the least obscure, and no explanation for its citation is given.

   Perspective needed

3. Submissions attached to the application to leave run to 14 pages and 80 paragraphs of scattergun assertions. At this stage some perspective is in order. This is a contest for $1,200. As to the balance of the $1,500 award Egan admits that he owes Narasimhan $300.[32] In view of the unlawful eviction, and the inadequate proof of Egan’s allegations of damage, Egan is fortunate that his tenant did not seek much more than a refund. Some, if not many litigants would have made more imaginative claims.[33]

   [32]T page 25 line 10, page

   [33]RTA s 420.

4. Many of the assertions made in that document were not mentioned at the trial, and no explanation for that is provided. Insofar as they seek to raise new evidence or arguments they effectively treat the leave application as a trial de novo. But this not an occasion for a retrial of old or new issues. The limited scope of an application for leave is to consider whether an appellable error has occurred.[34] None has been demonstrated here.

   [34]QUYD Pty Ltd v Marvass Pty Ltd  [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v

   Bundaberg Regional Council [2011] QCA 359 at [18]; Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19].

5. The position is that a `bond’ of $1,200 was paid by Narasimhan to Egan, who unlawfully failed to remit it to the Rental Tenancies Authority. Egan claimed that he was entitled to retain it as compensation for breaches of the agreement[35], but the asserted reasons for that claim did not satisfy the adjudicator as judge of fact and credit.[36] Egan did not bring any counter application in support of his inflammatory accusations against Narasimhan. There is nothing in the finding against Egan that is `glaringly improbable’ or contrary to compelling inferences.[37] The absence of entry and exit records was evidently crucial.[38] Findings of fact and credit are the primary judge’s task and prerogative.[39] The purported bond, held contrary to the RTA, is returnable to the tenant. As to the balance of the $1,500 award liability is admitted. These proceedings crave finality.

   [35]T page 21 line 40.

   [36]       Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.

   [37]LemongroveServices Pty Ltd trading as Reimer Winter Williamson Lawyers and Anor v Rilroll Pty Ltd and Ors [2019] NSWCA 174 at [173]; Devries v Australian National Railways Commission [1993] HCA 78;(1993) 177 CLR 472 at 479; Abalos v Australian Postal Commission [1990] HCA 47;(1990) 171 CLR 167 at 178-179.

   [38]T Page 28 lines 18-19.

   [39]        Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.

   Resolution

6. I can discern no reasonably appellable ground of appeal. The application for leave to appeal must be dismissed.

   ORDER

   The application for leave to appeal is dismissed.