Hall & Hamel v Valencia Villas Managament Pty Ltd
[2010] QCAT 628
•6 December 2010
| CITATION: | Hall & Hamel v Valencia Villas Managament Pty Ltd [2010] QCAT 628 |
| PARTIES: | Julie Ann HALL and Karmelia Tiffinie HAMEL |
| v | |
| Valencia Villas Managament Pty Ltd Bruce FEATHERSTON Jill FEATHERSTON Wayne Leslie STODDART (1st, 2nd, 3rd and 4th respondents respectively in both Applications) |
| APPLICATION NUMBER: | ADL007-10 & ADL008-10 |
| MATTER TYPE: | Anti-Discrimination Matters |
| HEARING DATE: | 18 and 19 October 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Jarro |
| DELIVERED ON: | 6 December 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Complaints dismissed |
| CATCHWORDS : | Discrimination – medical condition; association with person of impairment; rental accommodation; termination of lease |
APPEARANCES and REPRESENTATION:
| APPLICANT: | Karmelia HAMEL and Julie HALL, self-represented |
| RESPONDENT: | Gary BOOCK, Director of Valencia Villas Management Pty Ltd Bruce FEATHERSTON, self-represented Jill FEATHERSTON, self-represented Wayne STODDART, self-represented |
REASONS FOR DECISION
Introduction
There are two complaints (Applications ADL007-10 and ADL008-10) before the Tribunal brought by a mother (Ms Julie Hall) and daughter (Ms Karmelia Hamel) against the respondents arising from a termination of a residential tenancy lease at a unit at Arundel in the State of Queensland. The two complaints were heard together by way of a hearing. The parties were self-represented.
In essence, the gravamen of the complaints is that the respondents (either by direct or vicarious liability) refused to re-let the residential unit because Ms Hamel suffers a medical condition known as temporal lobe epilepsy with psychosis. It is on that basis, Ms Hamel broadly complains of discrimination on the basis of impairment and Ms Hall on the basis of family responsibilities and association with a person identified on the basis of an impairment.
The first respondent, Valencia Villas Management Pty Ltd, is the property management agents/on-site managers of the residential complex consisting of 58 units, including the unit the subject of the relevant complaints (“the complex”). The owners of the relevant unit are Mr and Mrs Featherston (the second and third respondents to the complaints). The fourth respondent, Mr Wayne Stoddart, is a co-director of the first respondent company.
Jurisdiction
In accordance with ss. 9 and 10 of the Queensland Civil & Administrative Tribunal Act 2009 (“the QCAT Act”), the Queensland Civil & Administrative Tribunal (“the Tribunal”) has original jurisdiction including jurisdiction conferred upon it under an enabling Act. The enabling Act in the present instance is the Anti-Discrimination Act 1991 (“the Act”). By virtue of s.174A of the Act, the Tribunal can hear and decide the complaints said to have contravened the Act. If the complaint is proven, the Tribunal can make an order under s.209. In addition, s.210 of the Act enables the Tribunal to order a dismissal of the complaint.
The Evidence
Ms Hamel and her mother, Ms Hall, gave evidence before the Tribunal.
Ms Hall began renting the unit in about September 2008. She was the nominated lessee of the property. It was a fixed term tenancy and the lease was subsequently renewed, culminating in a final tenancy agreement for a 6 month period commencing 16 October 2008. The lease expired on 15 April 2009.
Valencia Villas Management Pty Ltd (through Mr Gary Boock and Mr Stoddart) took over management of the complex in December 2008.
Neither Ms Hall nor Ms Hamel had any issues with the former on-site managers of the complex. According to Ms Hall and Ms Hamel, relations began to sour when new management took over.
In about September 2008, Ms Hamel was given an opportunity to stay in her mother’s unit whilst her mother was away. This was to be a trial to live independently given her medical condition. According to both Ms Hall and Ms Hamel, the first three months of the final tenancy period went very well. The former on-site manager of the complex was aware of this trial independent living as Ms Hall and Ms Hamel had discussions with him when the lease was renewed in October 2008.
According to Ms Hamel, when the new managers started in December 2008, she told them that she was on a disability pension and not working. Then in late January 2009, Mr Stoddart and his co-manager, Mr Boock, and their wives, completed an inspection of the unit. No notice was given for this inspection. They told Ms Hamel that the unit was in reasonable condition except for cleaning of the air vents and some dirty marks on the walls. Approximately four weeks later, they all returned for another unannounced inspection. The unit did not pass the inspection – for instance, the oven was not cleaned well enough and the carpets were not cleaned properly.
Because of this second inspection, Ms Hamel began to wonder why she was the subject of so much attention from the new managers of the complex. She became paranoid about them and others in the complex. For instance she overhead comments from people when she would walk to the pool area or through the complex to catch a bus. She became more and more stressed at this because she had been given an opportunity by her mother to commence trial independent living. She had the help and support of two people from the Gold Coast Hospital – a Case Manager and a Support Worker – who visited her weekly to see how she was coping. She also received visits from Queensland Health and Centacare representatives who were helping her to partake in a community involvement program and assist with entering the workforce.
Ms Hamel gave evidence that between February and March 2009, Mr Stoddart began putting notes in her mailbox noting that noise complaints had been made about her. She said she went to see him to find out what was going on because she did not think she was doing anything wrong. She said that Mr Stoddard told her that they “didn’t want certain types of people in the complex”. She reminded him that she had a medical condition and so did some of her friends who visited the unit.
She became more and more stressed that everyone was watching her and talking about her. She was scared and felt that the new managers were picking on her and talking to everybody else in the complex about her. She was too scared to tell anyone, including Ms Hall, about how stressed and worried she was because everyone had put so much trust in her to make the independent living work. She could feel herself becoming unable to cope.
Ms Hall gave evidence that in early to mid-March 2009, she received a phone call from Mr Stoddart advising her that the rent was in arrears. This was the first telephone contact she ever received from the new managers who had taken over from the former manager.
According to Ms Hall, on 13 March 2009, Mr Stoddart telephoned her to advise of the decision not to renew the lease. She sought reconsideration of the decision on the basis that she would move back in with her daughter and she had leased the unit for 3½ years. She then telephoned Ms Hamel about this. Ms Hamel felt ashamed and deeply hurt about it. Unfortunately it culminated with Ms Hamel having a breakdown and being admitted to the Gold Coast Hospital on 23 March 2009. She was discharged in due course.
According to Ms Hall, on the day her daughter was admitted to hospital, Mr Stoddart telephoned her and said the lease would not be renewed. When pressed for a reason, his response was “We don’t want those types of people like Karmelia living there.” Ms Hall responded with “What types of people” to which the response was “You know – people with medical / mental problems”. She was shocked with the response.
The unit was vacated by 4 April 2009.
Ms Hamel stated that she was coping with everything until the new managers took over the complex in December 2008. She told the managers at that time, and in particular Mr Stoddart, that she had epilepsy and that her roommate also had epilepsy. She felt that they discriminated against her because of her disability and because she associated with other people with disabilities. According to Ms Hamel, the managers put so much stress on her and the stress contributed to her breakdown.
The two previous managers were aware of Ms Hamel’s condition and treated her fairly. Ms Hamel stated that the new managers should have telephoned her mother if they had any concerns as the lease was in her name, instead of harassing her and making her feel like she was “abnormal, not worthy of staying in the unit, and a failure”.
According to Ms Hall, she believed that the stress, hurt, embarrassment and humiliation felt by both herself and her daughter was a major contributing factor to her daughter’s breakdown and subsequent hospitalisation. She could sense that by about February 2009, something was wrong with her daughter. She was not concerned prior to that because her daughter had two case managers checking on her and she was living with a couple of girls. When she sat down to renew the lease in October 2008, she was initially reluctant, but thought her daughter would be able to manage. By December 2009, “everything was going great”. So too in January 2009, there were no problems that Ms Hall was aware of in relation to her daughter being able to care for herself; however, by February 2009, Ms Hall noticed a change in her daughter’s voice. She knew something was going on but her daughter was not telling her.
Prior to March 2009, Ms Hall indicated that she did not receive any notices to remedy the breach for any rental arrears and was not aware of any rental arrears. The first time she was aware of the rental arrears was when she had a telephone discussion with Mr Stoddart in March 2009. Shortly thereafter, on 27 March 2009, she paid $500 in order to bring the rent in advance.
Ms Hall indicated during cross-examination that she did not update her current information with management. Instead she left her details with her daughter on the fridge of their unit but nonetheless the former manager knew the contact details for Ms Hall. All of Ms Hall’s belongings were still at the unit. She came back at Christmas time in 2008 and was not aware that the former manager had left the complex until her daughter informed her that new managers started around that time.
According to the applicants, everything was fine until December 2008, when the new managers arrived. Ms Hamel told them that she had epilepsy and that her roommate also had epilepsy. From that time, she began receiving complaints. For instance, in January 2009 there was a noise complaint and from January 2009 she heard people talking about her in the complex. She conceded in cross-examination though that the conversations could have been due to issues other than her medical condition.
When Ms Hamel received the noise complaint, the managers asked if they could enter the unit. Then in February 2009, she received notes about the visit/inspection. She felt so much attention was drawn to her for the most minor of reasons. She began to feel that maybe she should not have mentioned her medical condition to the managers, as it drew unwanted scrutiny.
Under cross-examination, Ms Hamel was certain that she spoke to both managers in December 2008 about her medical condition. However, Mr Boock produced passport evidence to demonstrate that he did not arrive in Australia until 10 January 2009. Insofar as the inspections were concerned, she said there were three in total – the first being in late January 2009, when Mr Stoddart simply presented at the door of the unit and asked if he could check because “there were some issues”. The next inspection occurred in February 2009 according to Ms Hamel as there were tyres stacked in the courtyard. The final inspection took place in March 2009 after an inspection notice was properly supplied. Ms Hamel admitted that she received notices about rent but did not contact her mother until the last minute.
All of the respondents gave evidence before the Tribunal, including that of Gary Boock, the co-director of Valencia Villas Management Pty Ltd.
Mr Boock denied that he had any conversation about Ms Hamel’s medical condition, and only became aware of it during February 2009 when the rental payments relating to the property fell into arrears. His recollection was that at this time, Mr Stoddart made numerous attempts to contact Ms Hall regarding the outstanding rental payments. Reminder and breach notices were also issued. He stated that only one inspection was carried out on the property, being on 11 March 2009 after the proper Form 9 Entry Notice was given. The inspection identified numerous issues which required addressing by tenants. At that time, he indicated to Ms Hamel and her housemate about what work was required to bring the property into satisfactory order, and also provided them with a written list of works that needed to be completed.
Mr Boock informed the Tribunal that Valencia Villas Management Pty Ltd was paid by the owners to lease rental units and unless otherwise instructed to do so, was not required to consult an owner before signing a new lease with tenants.
He stated that the termination of the lease was not due to Ms Hamel’s medical condition, but rather the history of rental arrears as evidenced by reminder and breach notices (nine in total) issued to them over the course of the tenancy and the fact that the unit was not maintained as a consequence of the inspection in March 2009. Further, their decision was based on complaints from the neighbours about noise, illegal parking, and on one occasion, fighting.
According to Mr Boock, he did not visit Ms Hamel at all, apart from the March inspection and on one occasion when Mr Stoddart received a request from Ms Hall to go to the unit to check on Ms Hamel as she had been upset and hung up on her. As such, Mr Stoddart and Mr Boock went to the door and knocked to see if everything was okay. According to Mr Boock, Ms Hamel indicated that she was fine and Mr Boock and Mr Stoddart left.
He did not have any conversations with Ms Hall and did not speak to her at all during the tenancy. Instead, it was Mr Stoddart who spoke with Ms Hall. In addition, Mr Boock did not have any discussions or conversations with Ms Hamel, apart from the inspections (referred to above and in March 2009) and when Ms Hamel would attend the office to pay some rent.
According to Mr Boock, rent reminders were sent as opposed to formal notices because “that was the most pleasant way to bring any arrears up to date”.
In his evidence, Mr Boock stated that insofar as he might have discussed Ms Hamel’s medical condition with other persons within the complex (which he denied in any event), he said it was impossible because he was not aware of Ms Hamel’s medical condition until February 2009 after Mr Stoddart told him about it. Further, he indicated that it is a decision by management alone not to renew the lease, that is it was not done in conjunction with the owners of the unit.
Mr Wayne Stoddart provided evidence before the Tribunal. He said that that he and his wife moved into the complex shortly after settlement on 22 December 2008. Thereafter, he was trained for two days by the previous managers, and he also spent some time unpacking. He then spent Christmas with family in Brisbane until 27 December 2008 and then returned to spend a few more days for more training. He only had brief contact with tenants living close to the office during this early stage. Shortly after taking over management of the property, Mr Stoddart stated that he did not have any detailed conversations with those residing at the property during the first week in the office or for the next few weeks, because he had a lot of maintenance issues to attend to.
During January 2009, he and Mr Boock had limited contact with tenants because there were 58 units within the complex. He indicated that he was not notified by Ms Hamel of her medical condition in either December 2008 or January 2009, and there was no indication on the tenancy file that Ms Hamel suffered from any medical condition.
Mr Stoddart only became aware of the medical condition in about February 2009 when the rental payments for the property fell into arrears. He spoke to Ms Hamel about the outstanding rental payments and she indicated to him that she was not working, was receiving medical benefits, she was on medication, had been in and out of hospital and thought she might have to go back to hospital soon as she was not feeling well.
After this conversation, he tried to contact Ms Hall in relation to rental arrears; however, he did not have a forwarding address or a contact phone number (because she was listed on the lease). Ms Hamel eventually provided him with a telephone number and postal address some time after, and according to Mr Stoddart, breach notices were posted to Ms Hall and delivered to the property’s mailbox for Ms Hamel’s attention.
Mr Stoddart indicated that he and Mr Boock sent reminder notices about the late payment of rent to Ms Hamel before sending breach notices because they could see that “Ms Hamel was trying her best to keep up with rental payments”, and therefore they “tried to take a conciliatory approach to the late payment of the rent”. He recalled telephoning Ms Hall on 25, 26, 31 March and 9 April 2009. He produced telephone records to support this. According to Mr Stoddart, the dates of the telephone conversations were different to the dates alleged by Ms Hall as to the discriminatory comments about Ms Hamel.
Whilst Mr Stoddart was unable to explain the first telephone conversation on 25 March 2009, he stated that he discussed rental arrears with Ms Hall on 26 March and, on 31 March and 9 April, discussed the termination of the lease.
A Notice to Leave Form was posted to Ms Hall on 31 March 2009.
Mr Stoddart indicated that the only time an inspection occurred at the unit between 22 December 2008 and 23 March 2009 (when Ms Hamel was admitted to hospital) was on 11 March 2009. He confirmed that an inspection was carried out by Mr Boock, Mr Boock’s wife and himself. Again, he corroborated that a Notice of Inspection was issued seven days prior to the inspection. By law, they were permitted to carry out routine inspections every three months provided appropriate notice was given.
During the inspection on 11 March 2009, there were a number of issues identified which required attention. He discussed those issues with Ms Hamel and her housemate. This was also followed up with a written list of works to be completed. A follow-up inspection was to take place on 26 March 2009; however, it did not occur because Ms Hamel was admitted to hospital before he could complete the inspection.
According to Mr Stoddart, Ms Hamel was not treated unfavourably and he denied carrying out multiple inspections of the property after he took over management of the complex. He only conducted one self initiated inspection of the property – on 11 March 2009. Mr Stoddart also provided notes of other inspections performed at the complex around the same time to demonstrate that it was not only Ms Hamel’s unit that was inspected but also others.
On 25 March 2009, Mr Stoddart received a call from Ms Hamel’s case manager who asked him to feed Ms Hamel’s cat. Upon entering the property, he noticed that the property was in an unacceptable condition and took photographs to protect the interests of the lessors.
Mr Stoddart gave evidence that it is normal practice that when considering whether to re-sign a lease, they take into consideration the tenant’s history of paying rent, the way in which the property had been looked after and the condition in which it is maintained. Mr Stoddart, with Mr Boock, made the decision not to renew Ms Hall’s tenancy on the basis of these factors. More relevantly, in his evidence, Mr Stoddart indicated that before the end of the lease, nine reminder notices and breach notices were issues – four by the previous managers and five by the first respondent. Copies of those notices were produced at the hearing.
Further, Mr Stoddart stated that he had received complaints from Ms Hamel’s neighbours about noise, illegal parking, and on one occasion, fighting. The lease was not terminated because of Ms Hamel’s medical condition. He denied that he ever said that he did not want people like Ms Hamel, who have a medical condition, living at the complex. Further, at no stage did he mention Ms Hamel’s name or discuss anything about her, including her medical condition, with any other resident in the complex.
Mr Stoddart also indicated that some weeks after Ms Hamel had left the property, she made a surprise visit to thank them for their support and help.
In his evidence, Mr Stoddart indicated that the language alleged to be used by him, more particularly the use of the words “you know” is not used by him in speech. He strongly disputed the allegations. At no time did he make that statement. He indicated there were no inspections undertaken other than the ones conducted on 11 March 2009 and when he was required to go and feed the cat on 25 March 2009. He said that Ms Hamel told him about her medical condition in February 2009. There were no discussions with the previous manager about this lease. There was no reason to go the unit and knock on the door.
There were photographs taken of the condition of the unit on 25 March 2009. Under cross-examination, Mr Stoddart indicated that he only took the photographs because he was disturbed with the state of the unit on 25 March 2009 when requested to feed the cat by Ms Hamel’s case manager.
Mr Stoddart further indicated in cross-examination that there were a number of people who did not have their leases renewed during the period when Ms Hall’s lease was not renewed.
Bruce and Jill Featherston, the owners of the unit, gave evidence before the Tribunal.
Mr Featherston indicated that he did not have any knowledge of the events that took place until he received an email from the managers of Valencia Villas that the tenants had vacated the unit and left it in a poor condition. He did not receive notification until early May 2009 after he returned from holidays. He relied on managers to protect his investment, and was not consulted on a new tenancy. He was happy with that arrangement so long as rental payments were made. The cause for some concern, although he left it with the managers, was when he received his monthly statements, and in February 2009 he noticed that it started to become a problem. The rent from that period became erratic, however prior to that he thought the tenants were good and had no reason to suspect otherwise because the managers (including the previous managers) did not communicate with him. He was happy with this arrangement so long as his investment was protected and he received regular rent payments.
Mrs Featherston provided evidence that she had absolutely no idea there were any problems relating to the tenancy of their unit until they returned from holidays in May 2009. She was shocked when she heard about the condition of the unit. She indicated that for 3½ years there were generally no problems with the tenancy. Her husband handled all the correspondence. It was not until August 2009 when the Anti-Discrimination matter arose, that she became aware of Ms Hamel’s medical condition. She had no knowledge Ms Hamel was living on her own and had no dealings with either applicant. Like her husband, Mrs Featherston was happy to rely upon the managers of the complex in order to protect her investment.
The respondents submitted that management complied with all relevant legislation. They submitted there was no requirement to extend the lease and they each sought a dismissal of the complaints.
In her closing submission, Ms Hamel sought to rely upon the Complaint Form lodged in the Anti-Discrimination Commission. She felt the respondents discriminated against her because she has a disability and associated with other people with disabilities. Whilst it was not expressly articulated by Ms Hamel in her complaint, she was alleging discrimination on the basis of impairment and association with visitors who have impairments. Section 7 of the Act prohibits discrimination on those bases, as well as others. Further, the discrimination was direct for the purposes of ss.9 and 10 of the Act and the discrimination occurred in an accommodation area for the purposes of Division 8 of the Act.
Similarly, Ms Hall’s complaint was made on similar terms and also pursuant to s.7(o) of the Act – discrimination on the basis of family responsibilities and s.7(p) – being discrimination on the basis of association with, or relation to, a person identified on the basis of an impairment.
Findings
In accordance with s.204 of the Act, it is for the complainants to prove, on the balance of probabilities, that the respondents contravened the Act. Pursuant to s.208 of the Act, the Tribunal is not bound by the rules of evidence, and:
(a)must have regard to the reasons for the enactment of the Act as stated in the preamble;
(b)may draw conclusions of fact from any proceeding before a Court or Tribunal;
(c)may adopt any findings or decisions of the Court or Tribunal that may be relevant to the hearing;
(d)may receive in evidence a report of the Commissioner, but only if each party to the hearing has a copy of the report;
(e)may permit any person with an interest in the proceeding to give evidence; and
(f)may permit the Commissioner to give evidence on any issue arising in the course of a proceeding that relates to the administration of the Act.
The Tribunal can make a number of orders as identified in s.209 or dismiss the complaint under s.210 of the Act.
At the hearing, the parties appeared to give evidence to the best of their recollection and I have no reason to suspect anyone misled or intended to mislead the Tribunal. Whilst I sympathise with the applicants, I prefer the evidence presented by the respondents to defend the complaints raised against them.
Having regard to the evidence presented and relied upon at the hearing, I make the following pertinent findings:
(a)There was a valid tenancy agreement involving Ms Hall as the nominated tenant. The parties agreed that the tenancy was to expire on 15 April 2009. It was a further term of that lease that rent was to be paid a minimum of one week in advance.
(b)Ms Hall was residing at the unit with her daughter for most of the period until Ms Hamel was to commence a trial of independent living.
(c)The previous managers (as well as all of the respondents) accepted that Ms Hamel would reside in the unit.
(d)Valencia Villas Management Pty Ltd, including Mr Boock and Mr Stoddart, took over as the Featherston’s agent when it obtained the management rights of the complex in about late December 2008.
(e)Ms Hamel did not inform Valencia Villas Management Pty Ltd and Mr Stoddart of her medical condition until February 2009, when the rental payments relating to the property fell into arrears to the point where reminders had to be given. At that time, it was then when Ms Hamel indicated to Mr Stoddart about her medical condition.
(f)Valencia Villas Management Pty Ltd, Mr Boock and Mr Stoddart did not discuss Ms Hamel’s medical condition with other persons within the complex.
(g)Valencia Villas Management Pty Ltd made numerous attempts to contact Ms Hall regarding the outstanding rental payments. Reminder notices and breach notices were also issued. Mr Stoddart tried to contact Ms Hall when the rental payments fell into arrears; however, he did not have a forwarding address or telephone number until late March 2009.
(h)There was one inspection carried out on the property on 11 March 2009 following a proper Form 9 Entry Notice dated 4 March 2009.
(i)Following that inspection, a number of issues were identified by Mr Boock and Mr Stoddard and relayed to Ms Hamel and her flatmate. A written list of works was also given to Ms Hamel and her flatmate as to the issues identified.
(j)Before the inspection issues were attended to, Ms Hamel was admitted to hospital for treatment.
(k)On 25 March 2009, Mr Stoddart entered the unit upon the request of the case manager in order to feed the cat. Thereafter, photographs were taken as the unit was in an unacceptable condition and Mr Stoddart wanted to attempt to protect the landlords’ interests at the conclusion of the tenancy.
(l)Mr Stoddart spoke with Ms Hall on 25, 26, 31 March and 9 April 2009.
(m)During those calls, Mr Stoddart did not discriminate as asserted by the applicants; including on the basis of a medical condition, or association with a person with an impairment.
(n)Valencia Villas Management Pty Ltd, including Mr Boock and Mr Stoddart, made the unilateral decision not to extend the lease beyond the tenancy period and as such issued a Notice to Leave on 31 March 2009. As the decision was unilateral, the Featherstons were not aware of that decision nor did it concern them.
(o)The decision not to renew the lease was based on a history of rental arrears as evidenced by nine reminder and breach notices issued throughout the course of the tenancy. In addition, there were concerns that the property was not maintained or cleaned as required, as well as complaints from a number of neighbours. The decision was not based on Ms Hamel’s impairment or association with people of impairment, nor was the decision based on Ms Hall’s relation with a person of impairment.
(p)The Featherstons were not aware of any issues until early May 2009 when they returned from holidays.
(q)Some weeks after Mr Hamel vacated the property, she made a surprise visit to thank Mr Boock and Mr Stoddart for their support and help.
I further find that the applicants have not demonstrated to the requisite standard any contravention of the Act.
Order
In accordance with s.210 of the Act, the Tribunal orders a dismissal of the complaints. Accordingly the complaints in ADL007-10 and ADL008-10 are dismissed.
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