Foster v Clifford
[2012] QCATA 113
•29 June 2012
| CITATION: | Foster v Clifford & Anor [2012] QCATA 113 |
| PARTIES: | Maxine Ida Foster (Applicant/Appellant) |
| v | |
| Kerry Clifford Vicki Clifford (Respondents) |
| APPLICATION NUMBER: | APL113-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 29 June 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application for leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – EQUITABLE RELIEF – where the appellant resided in premises owned by the respondents – where the respondents issued the appellant with a notice to leave – where the Tribunal made a termination order and issued a warrant for possession – whether the legislative provisions warranted the order – whether the weight of the evidence warranted the order – whether the appellant has an equitable interest in the property Residential Tenancies Act 1994, ss 8(1), 10(1) Giumelli v Giumelli (1999) 196 CLR 101 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (“QCAT Act”).
REASONS FOR DECISION
JUSTICE ALAN WILSON
Since 1996 Mrs Foster has lived in a house owned by the respondents, who are her son and daughter in law. On 23 December 2011, the respondents gave the appellant a Notice to Leave under the Residential Tenancies and Rooming Accommodation Act2008 (“RTRA Act”). Later, the respondents brought proceedings against the appellant in QCAT’s Minor Civil Disputes jurisdiction, and, on 27 March 2012, after a hearing attended by Mrs Foster and Mr Clifford, a Magistrate sitting as a QCAT Ordinary Member made a termination order and issued a warrant for possession of the premises.
Mrs Foster sought leave to appeal that decision. Leave is necessary under s 142(3)(a)(i) of the QCAT Act. In her grounds of appeal (Mrs Foster is representing herself) she says that she believes her matter “…was heard in the wrong Court”; that she has “…an interest in this property”; and, that she is deaf and could not hear what her son was saying at the hearing and, therefore, “…had no right of reply because my complaints were ignored”.
The proceedings before the learned Magistrate were recorded, and I have listened to the recording. Mrs Foster said at the outset that she had a hearing problem, and it is apparent from the recording that the Magistrate then moved close to her and spoke loudly and clearly. It is clear throughout the balance of the recording of the lengthy hearing that she heard everything the Magistrate said. She did complain from time to time that she could not hear what her son said, but in each instance the Magistrate can be heard repeating or summarising the son’s submissions.
There is nothing in the recording to suggest that Mrs Foster was not aware of everything that was said in the hearing; that she could not hear the Magistrate; or, that she suffered some disadvantage or was denied procedural fairness because of her hearing deficit.
The evidence and submissions of both Mrs Foster and Mr Clifford established that she had moved into the premises in about 1996 and, thereafter, had always paid rent, although no written tenancy agreement was ever entered into. That state of affairs was corroborated by a copy of a letter apparently written in 2003 by Mr Clifford, which related to Mrs Foster’s social security entitlements, and confirmed a long term and ongoing tenancy since 1996.
Under the Residential Tenancies Act 1994, a “residential tenancy agreement” was defined as an express or implied agreement under which a person gave to someone else a right to occupy residential premises as a residence[1]. Under s 543 of the RTRA Act, an “existing agreement” is defined to include a residential tenancy agreement under the previous Act.
[1] Residential Tenancies Act 1994, ss 8(1), 10(1).
The evidence was sufficient to establish, then, that the RTRA Act applied.
Under s 293 of the RTRA Act, the lessor could apply for a termination order. It is clear that the learned Magistrate concluded, on the basis of the evidence from Mrs Foster and Mr Clifford, that the legislation applied; that Mr Clifford was entitled to give the notice in late December 2011; that the notice complied with the RTRA Act; and, that Mrs Foster had failed to comply with it.
The weight of evidence and the legislative provisions warranted the order made by the learned Magistrate and no error on his part is apparent.
[10] It was also apparent, however, from things said by Mrs Foster during the hearing that she believed she had a “right” to remain in occupation of the premises by reason of the length of her tenancy and, in particular, the fact that she had effected improvements to the property. Both those assertions and the relationship between the parties properly alerted the learned Magistrate to the possibility that Mrs Foster may be able to claim some equitable interest in the property, and that Mr Clifford and his wife may in fact own it as constructive trustees in circumstances where Mrs Foster was entitled to a beneficial interest, which might extend to a right to continue residing there.[2]
[2]In the nature of the kinds of equitable remedies imposed by the high court in cases like Muschinski v Dodds (1995) 160 CLR 583 and Giumelli v Giumelli (1999) 196 CLR 101.
[11] The recording shows that the learned Magistrate was careful to ask both parties questions directed toward that possibility. In doing so he fully and fairly discharged, with respect, his statutory obligation under s 29 of the QCAT Act to ensure that each party to a proceeding understands the nature of assertions made in a proceeding, and their legal implications. He established, by questioning, that Mrs Foster had not put any funds into the original purchase price for the home.
[12] Mrs Foster contended that she had, however, expended monies and labour on improvements, but Mr Clifford said (and the learned Magistrate apparently accepted his evidence on this point) that he and his wife had always paid for improvements although, from time to time, Mrs Foster had organised them; that she had effected some improvements of which he was previously unaware, but for which he was happy to compensate her; and, that the Respondents had themselves undertaken significant works at various times.
[13] Mr Clifford also said that when he and his wife became aware of improvements made by Mrs Foster in the past, they would adjust her rental payments.
[14] The learned Magistrate accepted Mr Clifford’s evidence about these matters. Nothing in the recording, or in Mrs Foster’s submissions, suggests that findings based upon Mr Clifford’s evidence should not or could not have been made.
[15] The learned Magistrate can also be heard on a number of occasions asking Mrs Foster what interest, if any, she might have in the property. While questions of that kind might not make it clear, to a non-lawyer, that what is being explored is the possibility of some equitable interest, the Magistrate asked a number of other questions about Mrs Foster’s expenditure in and about the premises during her tenancy which were plainly intended to reveal any circumstances that might support any case she could have made in that respect.
[16] Again, nothing in her answers suggested any expenditure on her part was made in the belief, or in the assumption, that it was for her own benefit; that she had an equitable interest which would entitle her to remain in an occupation so long as she wished; or, that her expenditure reflected a belief or understanding on her part to that effect.
[17] It is also appropriate to observe that Mrs Foster was, throughout the hearing, apparently agitated and distressed. She spoke loudly, and frequently interrupted and spoke over the Magistrate. No doubt her conduct reflected elements of her hearing loss, some other health problems of which she complained, and her distress about facing eviction from a home in which she resided for about sixteen years, at the hands of her son.
[18] The recording shows, however, that the learned Magistrate was patient and polite, and persevered with his attempts to ensure that everything that might have been said on Mrs Foster’s behalf was properly explored.
[19] This was a difficult and unpleasant case. The learned Magistrate acquitted himself, in my respectful view, in a creditable way. His conclusion properly reflected the evidence and the weight of evidence about this unfortunate dispute; the findings are consistent with the relevant legislation; and, the findings were made after he had properly explored (but also carefully excluded) the possibility that Mrs Foster may have some other basis for resisting the eviction.
[20] It is also appropriate to record that, for the reasons set out above, Mrs Foster was afforded all procedural fairness.
[21] In the result, there is no apparent error of law warranting a grant of leave to appeal, and leave must be refused.
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