Fotia v Packer
[2010] QCATA 98
•9 December 2010
| 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
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’.
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.
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.
Mr Packer’s position was that he no longer had an interest in the tenancy, and was entitled to extract half the bond.
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.
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.
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 or co-residents about rental bonds and provides that, in the event of such a dispute, a co-tenant could apply to a Tribunal for an order and ‘…the Tribunal may make any order it considers appropriate, to resolve the dispute’.
As the learned Adjudicator observed early in the hearing, the last phrase gave him a ‘complete discretion’ but he took the view that in exercising that discretion he was obliged to ‘…contain myself to matters which I think are relevant to the tenancy’.
Ms Fotia seeks leave to appeal the Adjudicator’s decision. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009, s 142(3).
Ms Fotia’s grounds of appeal were expanded by written submissions, which were sought from both parties. Mr Packer has not delivered any. Ms Fotia’s complaint is that Mr Packer abandoned her and their very young daughter when she was in poor health and in receipt of a pension, and her income did not cover her rent. She seeks an order that Mr Packer return the balance of the bond because ‘…he should be made responsible for contributing some of the housing costs for his 3 year old child, even if that means paying only half of the rental bond’.
In her application for leave to appeal Ms Fotia also complains that the Adjudicator spoke to her in an abrupt and rude manner and did not give her adequate opportunity to explain her position, or her case. Those submissions are not supported by the transcript of the hearing which reveals that the Adjudicator took care to allow each party to present her or his case; and, while some of the Adjudicator’s language is direct it cannot, on any view, be called abrupt or rude – or, even, discourteous.
Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and reasonable prospect of the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
The sole question which might attract leave concerns the nature of the discretion under s 430, and the manner in which the learned Adjudicator approached that discretion and, in particular, his conclusion that its parameters are limited to matters relevant to the tenancy itself.
Section 430 sits in Chapter 6 of the legislation, relating to dispute resolution. While nothing in that Chapter directly suggests that the personal, or personal financial circumstances of tenants, or personal relations between co-tenants maybe relevant to the discretion under s 430, s 433A provides that certain applications to QCAT must be held in private. They relate to proceedings under Chapter 3 involving domestic violence (s 245) or threats of violence with damage to property (ss 312, 321 and 323) and involve relationships with persons described as ‘domestic associates’ – a term defined to include parties in an ‘intimate personal relationship’ (as appears to have been the case here).
Arguably, then, the discretion may not be constrained in the way suggested by the learned Adjudicator. That said, however, even if he had approached the discretion more broadly, the evidence presented by both parties to him makes it unlikely a different order would have been made.
Both parties had filed written statements involving claims and counterclaims about their joint financial affairs, and obligations, and the transcript shows the learned Adjudicator had referred to that material before, and during the hearing. On its face, that material showed ongoing and quite complex disputes between the parties about their finances which, as the learned Adjudicator impliedly found, could not properly or fairly be determined in QCAT’s Minor Civil Disputes jurisdiction.
In those circumstances, simply dividing the bond equally between two co-tenants cannot be said to have involved a misapplication of the discretion under s 430. The application for leave to appeal must, then, be refused.
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