Fotia v Packer

CITATION: Fotia v Packer [2010] QCATA 98

APPELLANT:	Maria Fotia  (Applicant/Appellant)
v
RESPONDENT:	Richard Granton Packer (Respondent)

APPLICATION NUMBER:   APL133-10

MATTER TYPE: Appeals

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON:  9 December 2010

DELIVERED AT:      Brisbane

ORDERS MADE: Application for leave to appeal refused

CATCHWORDS : 

RESIDENTIAL TENANCIES – DISPUTE OVER BOND – where adjudicator ordered that the bond be split in half between former co-tenants – where the appellant argues that the adjudicator failed to take into account her personal financial and health circumstances – where the appellant argues that the adjudicator was dismissive of her personal circumstances – whether adjudicator erred in exercise of discretion to divide bond

Queensland Civil and Administrative Tribunal Act 2009, ss 142(2), 430

APPEARANCES and REPRESENTATION (if any):

By order of the Appeal Tribunal the application for leave to appeal (and appeal, if leave is granted) were directed to be determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Ms Fotia and Mr Packer were both tenants in residential premises at Sinnamon Park until around mid 2009, when Mr Packer left. The evidence suggests this event also signified the breakdown in his relationship with Ms Fotia.  In her words: ‘he abandoned me, chronically ill with various disabilities, to care for our 2 year old daughter on my own’.

1. Under their tenancy agreement with the owner of the property a rental bond of $2,200.00 had been paid. Mr Packer sought the return of half that sum to him after he quit the premises. When the matter could not be resolved by the Residential Tenancies Authority, Ms Fotia commenced proceedings in QCAT’s Minor Civil Disputes jurisdiction.

1. The matter eventually came on for hearing before a QCAT Adjudicator on 15 April 2010. Both Ms Fotia and Mr Packer appeared. She argued that Mr Packer was not entitled to half the bond because of the circumstances in which he quit the premises, and in which he left her – that is, in poor health and financial circumstances, with a young child to care for, and with insufficient income and resources to continue paying the rent or to replace, by payment, his share of the rental bond.

1. Mr Packer’s position was that he no longer had an interest in the tenancy, and was entitled to extract half the bond.

1. The Adjudicator concluded that half the bond, $1,100.00, ought to be paid out to Mr Packer and made an order to that effect.

1. The learned Adjudicator’s reasons were not articulated in great detail but it is clear from the transcript that he took the view that Ms Fotia’s complaints were more properly matters for the Family Court and could not be satisfactorily addressed in the Minor Civil Disputes jurisdiction.

1. The Adjudicator was exercising a jurisdiction arising under the Residential Tenancies and Rooming Accommodation Act 2008 and, in particular, s 430 which relates to disputes between co-tenants…