Giffing v Demy-Geroe - [2021] QCAT 315

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Giffing v Demy-Geroe [2021] QCAT 315

PARTIES: GEORGE MICHAEL GIFFING

(applicant)

v

ANDREW LEWIS DEMY-GEROE

(respondent)

APPLICATION NO/S:

MCDT 2538/19

MATTER TYPE:

Residential tenancy matters

DELIVERED ON:

15 September 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Stroud

ORDERS:

1. The Respondent is to pay to the Applicant the sum of $71.43.

CATCHWORDS:

MINOR CIVIL DISPUTE RESIDENTIAL TENANCY – RESIDENTIAL TENANCIES - LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – GENERALLY – where Tribunal authorised administrator to permit brother to reside in mother’s property – whether residential tenancy – whether boarder or lodger – whether residential tenancy requirements apply – - whether urgent application – whether can be dealt with as non-urgent application whether compensation payable as a Minor Debt.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 11, s 126

Residential Tenancies and Rooming Accommodation Act 2008 (QLD), s 10, s 11, s 12, s 32, s 83, s 280, s 358, s 402, s 416, s 414, s 420, s 433

Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277

DBO v GBA & Ors [2017] QCA 228
Giffing v Demy-Geroe [2021] QCATA

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

No appearance

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

What is this matter about?

The Respondent, Andrew Lewis Demy-Geroe resided in his mother’s property with his mother for many years. When his mother lost capacity, the Tribunal ordered that his siblings (including the Applicant, Mr George Michael Giffing) be appointed jointly and severally as Administrators for all financial matters.[1] The Tribunal also authorised the Administrators to permit Mr Demy-Geroe to continue to reside in the property at less than market rent, being $100 per week, subject to Mr Demy-Geroe maintaining the property and grounds (the original decision).[2]
[1]Decision dated 26 October 2016.
[2]Decision dated 26 October 2016.
Mr Demy-Geroe failed to pay rent and commenced a series of unsuccessful appeals to have the original decision set aside primarily on the grounds that he could not afford to pay the rent, or that paying rent was a substantial injustice.[3]
[3]Refer DBO v GBA & Ors [2017] QCA 228.
With the permission of the Administrators he continued to reside in his mother’s property in the meantime.
On 24 September 2018, Mr Giffing on behalf of the administrators filed an urgent residential tenancy dispute in the Tribunal seeking compensation of $100 per week from 16 October 2016. The matter was heard on 12 October 2018 before Member Dr Andrew Collier who, whilst commenting that the lease between the parties was one that very probably came withing the scope of the Residential Tenancy and Rooming Accommodation Act 2008 (RTRA Act), determined the application as a Minor Debt dispute and ordered that Mr Demy-Geroe pay to Mr Giffing the sum of $10,349.07 within 14 days.
Despite the order of 12…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Giffing v Demy-Geroe

Details

AGLC: Giffing v Demy-Geroe [2021] QCAT 315
Case: [2021] QCAT 315
Decision Date

CaseChat Overview and Summary

The matter involves George Michael Giffing, an administrator of his mother's estate, and Andrew Lewis Demy-Geroe, who resided in his mother's property. The dispute revolves around the nature of the arrangement between the parties and the applicability of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA Act) to this arrangement. The Tribunal was required to determine whether the arrangement between the parties constituted a residential tenancy, and if so, whether the application could succeed as an urgent money claim, a non-urgent application for compensation, or a Minor Debt.

The key issues were: (a) whether the arrangement between the parties was a residential tenancy to which the RTRA Act applied, and (b) if it was a residential tenancy, whether the application could succeed as an urgent money claim, a non-urgent application for compensation, or a Minor Debt. The Tribunal found that the arrangement between the parties was indeed a residential tenancy, as Mr Demy-Geroe had exclusive use and occupation of the property, and the administrators required him to transfer the utilities into his own name. The Tribunal also found that the application could succeed as an urgent money claim for the period Mr Demy-Geroe remained in possession after a termination order was made. However, the application could not succeed as a non-urgent claim for compensation or a Minor Debt, as it did not comply with the requirements of the RTRA Act.

The Tribunal ordered that the Respondent, Andrew Lewis Demy-Geroe, is to pay the Applicant, George Michael Giffing, the sum of $71.43. This amount represents compensation for the period Mr Demy-Geroe remained in possession after the termination order was made. The Tribunal did not grant the Applicant's claim for additional compensation or a Minor Debt, as it did not comply with the requirements of the RTRA Act.

Orders