Grimshaw v YMCA
[2010] QCATA 88
•29 November 2010
| CITATION: | Grimshaw v YMCA [2010] QCATA 88 |
| PARTIES: | Paul David GRIMSHAW (Applicant/Appellant) |
| v | |
| YMCA (Y-Care SEQ (INC)) (Respondent) |
APPLICATION NUMBER: APL136 -10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President Mr Jim Allen Member |
DELIVERED ON: 29 November 2010
DELIVERED AT: Brisbane
ORDERS MADE: 1. Grant leave to appeal
2. Allow the appeal, and set aside the order of the Adjudicator made on 4 June 2010 and the Form 12 Notice to Leave issued by the respondent on 20 April 2010
| CATCHWORDS : | RESIDENTIAL TENANCIES – TERMINIATION – LEAVE TO APPEAL – where the respondent issued the applicant with a notice to leave without grounds – where the applicant applied to have the notice set aside as retaliatory – where the adjudicator did not make any findings on the notice to leave but rather terminated the tenancy on the grounds of objectionable behaviour – where the applicant was not given the opportunity to respond to allegations of objectionable behaviour – whether the adjudicator erred in failing to determine the application to have the notice set aside – whether substantial injustice to applicant – whether leave should be granted RESIDENTIAL TENANCIES – NOTICE TO LEAVE – REATALIATORY – where the respondent issued the applicant with a notice to leave without grounds – where the applicant applied to have the notice set aside as retaliatory – where the adjudicator did not make any findings on the notice to leave – whether the notice to leave was retaliatory – whether notice to leave should be set aside – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, s 142(3) Du Preez v Linda’s Homes Pty ltd [2010] QCATA 2, cited Quyd Pty ltd v Marvass Pty ltd [2008] QCA 257, cited |
APPEARANCES and REPRESENTATION (if any):
By direction the matter was dealt with on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009
REASONS FOR DECISION
President:
In this matter the Appeal Tribunal was comprised of myself and Mr Jim Allen, Member. I have had the advantage of reading his reasons in draft. I agree with them, and with his conclusions, and the order he proposes.
Mr Jim Allen, Member:
Mr Paul Grimshaw was a tenant of YMCA (Y-CARE SEQ) (INC)) (which I will refer to as ‘YMCA’) in premises at A5/5 Mount Street, Nerang, having entered a lease on 25 June 2009 for the period to 25 December 2009. Mr Grimshaw continued in occupation of the premises after the expiry of the lease. The YMCA issued him with a Form 12 Notice to leave without grounds dated 20 April 2010, with a handover day of 21 June 2010, following the failure of negotiations to enter a new lease.
Mr Grimshaw made an application to the Tribunal which was filed on 4 May 2010 under section 292 of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA) to set aside the notice to leave without ground. That application was heard by a QCAT adjudicator at Southport on 4 June 2010.
After hearing the parties, the adjudicator made an order in the following terms:
I make a termination order in respect of premises known as Apartment 5/5 Mount Street, Nerang as and from 21st of June 2010 on the grounds of objectionable behaviour.
Mr Grimshaw seeks leave to appeal that decision. This appeal tribunal ordered that the application for leave to appeal (and the appeal if leave is granted) would to be heard on the papers following the filing and serving of submissions by the parties, which has occurred.
Leave is required because of s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009. Leave to appeal will ordinarily be granted only where there is a reasonable argument that the primary decision maker erred and an appeal is required to correct a substantial injustice caused by that error;[1] or the question in issue be one of general importance, and, accordingly, one which the public interest requires should be the subject of further argument and decision.[2]
[1] Quyd Pty ltd v Marvass Pty ltd [2008] QCA 257
[2] McIver Bulk Liquid Haulage Pty ltd v Fruehauf Australia Pty Ltd (1989) 2 Qd R 577 at 580
In his written submissions Mr Grimshaw asserted that the order of the Tribunal was unjust, as there was insufficient evidence to support the ruling that the tenancy be ended on the grounds of his alleged objectionable behaviour; and, further, that the order made at the hearing was not based on the application, and that he was not provided with an opportunity to defend the claim in regard to alleged objectionable behaviour. The purpose of the hearing was, he submitted, to address his application for the notice to leave to be withdrawn; there was no application from the YMCA to end the tenancy filed before the hearing.
The YMCA stated it was happy with the adjudicator’s decision and provided a chronology of events from the beginning of March 2010 until 11 September 2010 when, it says, Mr Grimshaw left the premises.
The application before the adjudicator was an application under section 292 of the RTRA. In the course of the hearing the adjudicator was informed by the YMCA’s representative of certain incidents in regard to Mr Grimshaw’s behaviour. The adjudicator then asked the YMCA’s representative if it wanted a termination of the lease. The YMCA’s representative then pressed for such an order on the alleged grounds that Mr Grimshaw was completely uncooperative, would not listen, and was guilty of objectionable behaviour.
Mr Grimshaw attempted to answer these allegations of objectionable behaviour but the adjudicator stated that he ‘…did not want to get into a slanging match about who was right and who was wrong’. The adjudicator then said words to the effect that landlord was entitled to give Mr Grimshaw a notice to leave and the handover date is 21 June 2010; and that if the YMCA wanted a termination order, he was prepared to make that order.
The troubling aspect of this is that the adjudicator did not make any findings in regard to the application made by Mr Grimshaw under section 292 of the RTRA, which was the application before the tribunal.
According to s 293 of that Act the lessor may apply to the Tribunal for a termination order because the lessor gave notice to leave the premises to the tenant, and the tenant failed to hand over vacant possession of the premises to the lessor on the handover day. Here, there were no grounds for an application under section 293 because the Form 12 had a handover day of 21 June 2010, which had not expired as at the date of the hearing on 4 June 2010.
Further no application had been received by the tribunal from the lessor for termination of the lease, as required under s 33 of the Queensland Civil and Administrative Tribunal Act 2009.
The learned adjudicator erred in not deciding the application before him, and in making an order which had not been sought by the landlord before the hearing. In particular, Mr Grimshaw was denied the opportunity to properly answer the landlord’s allegations made in regard to objectionable behaviour which, in the absence of an application, must have been surprising.
The learned adjudicator also incorrectly found that there was no lease in existence at the time; but, s 70 of the RTRA deems that a lease on the same terms as the original lease, but on a periodic basis, exists if a tenant remains in occupation after the expiry of a lease (as, the evidence shows, occurred here).
It is inescapable that, for these reasons, Mr Grimshaw suffered a substantial injustice and he should have leave to appeal.
Mr Grimshaw, the evidence shows, had a particular issue in regard to securing his car parking space at the premises and this, amongst other matters, was raised with the YMCA by way of a Form 11 Notice to remedy breach dated 1 March 2010. He received a reply from the YMCA dated 3 March 2010 which assured him he would receive a written agreement in regard to his car park. The YMCA gave Mr Grimshaw a letter dated 29 March 2010 advising that a new lease was available for signing on or before 1 April and that if he did not wish to sign then, he should provide a Form 13 Notice of intention to leave.
Mr Grimshaw alleged that when he attended to sign the new lease on 30 March 2010 he was refused the agreement in writing in regard to the car park – although, at the hearing, Mr Grimshaw acknowledged that he had been offered a car parking authority by the YMCA at the time he attended at the office to sign the new lease, but rejected it because it was not on letterhead.
Following a telephone conversation with the representative of the YMCA who had promised the agreement in writing during which ( as both parties allege) the other was abusive, Mr Grimshaw issued a further Form 11 notice to remedy breach on 31 March 2010 and made an application to the Residential Tenancies Authority for dispute resolution dated 31 March 2010. Mr Grimshaw received confirmation of receipt of the dispute resolution request by letter dated 16 April 2010 and notification of a conciliation conference by letter dated 21 April 2010.
The conciliation conference was held by telephone on 29 April 2010 and there was no resolution, though Mr Grimshaw’s states that his phone cut out during the course of the conference. The Residential Tenancies Authority issued a letter confirming that there was no resolution at the conference on 18 May 2010.
Section 291(2)(b)(ii) of the RTRA provides that a lessor must not give a notice to leave under that section because the tenant has taken some other action to enforce the tenants rights. The application by Mr Grimshaw to the Residential Tenancies Authority can be characterised as such an action. The question, then, is: was the notice to leave issued because of this action?
The notice to leave was issued during the course of the dispute resolution process. The evidence from the YMCA is that it was issued due to Mr Grimshaw not signing the new lease, and a mistaken belief by the YMCA that the dispute resolution process had been dropped. The reason for Mr Grimshaw not signing the lease was, it is apparent, the impasse in regard to the car park allocation discussed earlier.
It is also inescapable that the reason for the issue of the Notice to leave by the landlord was not the referral to the Residential Tenancies Authority itself but the ongoing dispute in relation to the car park agreement. In light of that conclusion, s 291(2)(b)(ii) does not apply.
A notice to leave also may not, however, be served if the giving of the notice constitutes taking ‘retaliatory’ action against the tenant under s 291 of the RTRA. This section has been considered by the President in an appeal tribunal decision:
Section 291(3) requires careful consideration of the particular circumstance of each case in which it is raised. If ‘retaliatory’ is construed too broadly, almost any complaint by a tenant to an agent or landlord, or even a less than amicable exchange between them, might qualify in the sense that if the owner or its agent then gives a notice to leave the notice may be categorised as retaliatory. It is improbable the legislature intended that effect.[3]
[3] Du Preez v Linda’s Homes Pty ltd [2010] QCATA 2 at [4]
The YMCA did not provide Mr Grimshaw with a written agreement in regard to his car park as it had promised in its letter of 3 March 2010. Mr Grimshaw initiated a dispute resolution process with the Residential Tenancies Authority in an attempt to resolve the issues. Instead negotiating further, the YMCA issued Mr Grimshaw with a notice to leave.
It is clear that, in those circumstances, the notice to leave was retaliatory, in that there was a real issue between the parties which had not been resolved and the lessor, instead of negotiating, issued a notice to leave. The appeal should be allowed, and the Form 12 notice to leave should be set aside.
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