Hassan v Kasapi
[2013] QCATA 333
•22 November 2013
| CITATION: | Hassan v Kasapi & Anor [2013] QCATA 333 |
| PARTIES: | Ghali Hassan (Appellant) |
| V | |
| John Roberts Kasapi John Ahern Real Estate (Respondents) |
| APPLICATION NUMBER: | APL382-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Oliver |
| DELIVERED ON: | 22 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | Residential Tenancy – arrears of rent – whether both tenants liable – where finding made that co-tenant’s signature on the agreement extending the tenancy was a forgery – finding made on the assessment of credibility of the witness – where no basis to interfere with that finding. Queensland Civil and Administrative Tribunal Act 2009 s 142 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr Hassan and Mr Kasapi jointly rented a property at Wilclarke Street, Upper Mount Gravatt. The tenancy commenced on 23 May 2012 and was for 6 months. John Ahern Real Estate was the managing agent for the property.
On 2 April 2013 John Ahern Real Estate commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal claiming $3,973.37 from both Mr Hassan and Mr Kasapi. The bulk of the claim was for arrears of rent with the balance being for lawn mowing, changing locks, pest control and the filing fee.
The matter came on for hearing on two occasions with a final hearing on 15 August 2013. At that hearing, the Tribunal ordered that Mr Hassan only pay to John Ahern Real Estate the sum of $3,799.37 which included arrears of rent of $3,312.42, $248.95 for the changing of the locks and $40.00 for pest inspection and a filing fee of $98.00. The claim against Mr Kasapi was dismissed.
The Tribunal found that Mr Kasapi was not liable for any of the outstanding rent or other items because he validly terminated the tenancy in accordance with the requirements of the Residential Tenancy and Rooming Accommodation Act (RTRA) on 22 November 2012.
From that decision, Mr Hassan has filed an application for leave to appeal or appeal. Leave to appeal is necessary as this is an appeal from a decision in the minor civil disputes jurisdiction[1]. 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 a reasonable prospect that 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?
[1] QCAT Act s 142(2).
Central to the Tribunal’s decision as to Mr Kasapi’s liability under the residential tenancy agreement was a finding that the residential tenancy agreement of 13 September 2011, which extended the original tenancy agreement by 6 months, did not bind Mr Kasapi because his signature on that agreement was forged by Mr Hassan. Mr Hassan challenges this finding and says that Mr Kassapi should be jointly liable for the claim.
At the resumed hearing of the application on 15 August 2013, Mr Hassan did not attend. I have read the transcript of the proceeding. It is evident from the transcript that the Tribunal satisfied itself that Mr Hassan had been served with the hearing notice and attempts were made to contact him by telephone before the hearing proceeded. Despite Mr Hassan not appearing, the learned Adjudicator considered Mr Hassan’s application in which he “asked for a determination as to who was responsible for the continuation of the tenancy.”[2] The learned Member went on to consider that point, relying on the evidence from the earlier hearing and Mr Hassan’s submissions, and gave reasons for his decision.
[2] Transcript page 3 line 30.
It was not contested that there were arrears of rent in the sum claimed by John Ahern Real Estate and the only question for determination was whether Mr Hassan and Mr Kasapi were both jointly and severally liable for those arrears of rent or whether or not Mr Hassan was solely responsible for the rent.
The reasons of the learned Member demonstrate that he gave considerable weight to the way both Mr Hassan and Mr Kasapi gave their evidence at the original hearing. Because the evidence of both was diametrically opposed, the learned Adjudicator had regard to the credit of both witnesses and concluded that he preferred the evidence of Mr Kasapi. He did this by carefully setting out why he rejected Mr Hassan’s evidence. He made the observation that this was one of the “rare cases where the demeanour of parties might affect the matter”. He provided details of the differences in demeanour, and in particular, that Mr Hassan was an excitable character prone to exaggeration and made unsupported allegations about Mr Kasapi’s character. Further, he was non responsive to questions put to him by the learned Adjudicator.
Overall the reasons provided by the learned Adjudicator[3] support the findings of credit made by him to determine that Mr Kasapi’s signature was forged on the Residential Tenancy Agreement. The conclusion of the learned Adjudicator as to this matter was clearly open on the evidence and it is not to be lightly interfered with in the appeal process.
[3] Transcript page 3 line 1-20.
Once the learned Adjudicator came to the conclusion that Mr Kasapi was not bound by the tenancy agreement he then considered whether he validly terminated the tenancy under sections 277(4) and 70 of the RTRA Act. Mr Kasapi, towards the expiration of the original fixed term, gave to the real estate agent a Form 13 which is a notice of intention to leave at the end of the fixed term on 22 November 2012. Because the original tenancy agreement which bound him came to an end, he could not be held liable for the outstanding rent which accrued under the tenancy agreement for the extended term, because of the forgery.
I have not been able to discern any error in the learned Adjudicator’s decision, there is not error of law nor has there been any substantial injustice given his findings of fact. There is no basis upon which leave to appeal can be granted and therefore the order of the Tribunal will be that leave to appeal is refused.
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