Hicks v Estate of Attwell
[2022] QCATA 92
•28 June 2022
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION
Hicks v Estate of Attwell [2022] QCATA 92
PARTIES: DANNY HICKS (applicant)
v
ESTATE OF KATHERINE ROSEMARY ATTWELL (respondent)
APPLICATION NO:
APL251-21
MATTER TYPE:
Residential tenancy matters
DELIVERED ON:
28 June 2022
HEARING DATE:
22 June 2022
HEARD AT:
Brisbane
DECISION OF:
Dr J R Forbes
ORDERS:
1. Leave to appeal is granted.
2. The orders made in this matter on 26 August 2021 are set aside.
3. Claim and counter claim are remitted for rehearing in accordance with law on a date to be determined by the registrar.
CATCHWORDS:
APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – residential tenancy dispute – rooming agreement – whether occupant entitled to termination of agreement on ground of severe hardship – where provider counterclaims for breach of agreement loss of rent, re-letting costs and incidentals – where counter claim in part ignored - where no adequate reasons given for that decision – where primary decision set aside and matter remitted for rehearing
Queensland Civil and Administrative Tribunal Act 2009 (Qld) QCAT Act s 121; Form 8
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 16, s 343
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FCR 132
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64; [2013] HCA 43.APPEARANCES & REPRESENTATION:
The applicant in person.
Mr S Attwell for the respondent estate
REASONS FOR DECISION
Introduction
On 6 November 2020 the respondent (`Attwell’) made a rooming accommodation agreement with the applicant (`Hicks’).[1] The agreement was due to expire on 6 May 2021, but did not run its full course; Attwell moved out about seven weeks after the date of entry[2], in circumstances described below, immediately before or after serving a notice of intention to leave.
[1]Residential Tenancies And Rooming Accommodation Act 2008 (Qld) (`RTA’) s 16; Form R 18.
[2]Application for leave to appeal filed 9 September 2021 annexure paragraphs 1 and 2.
Hardship or non liveability alleged
On 23 October 2020 in an application disjointed and difficult to interpret, Attwell sought termination of the agreement upon these grounds:
The hse [sic] was full of heroin addicts junkies and dealers. I have been grabbed by the throat. Police have taken three witness statement [sic]. ... This house/boarding lodge was a serious health and safety risk, non liveability. Near massacre of fellow boarding housemate by other boarders (Freya). The threats and violence @ 309 [sic] were constant!!
According to an acknowledgment by Hicks, the `near massacre’ occurred when a male and a female inmate `got drunk [and] ... she wacked his ear with the cheese knife’.[3]
[3]Transcript of hearing 26 August 2021 (`T 2’) page 5 lines 30-31 (Hicks).
Provider of accommodation counter claims
On a date unstated Hicks lodged an informal[4] counter claim alleging that Attwell abandoned her accommodation without proper notice, and claiming $1,997.00 (including bond[5]) for `breaking a fixed term lease, [sic] for the cleaning of the room, dumping mattress, cleaning fridge and washing linen and curtains. It was further alleged that it took Hicks 7 weeks and 5 days to re-let the room.
[4]I.e. not on a Form 8.
[5]There was a bond of $880.
The adjudicator noted and summarised the counter claim[6] at the commencement of the substantive hearing[7]. The only other references to that claim were to Hicks’ $80 charge for cleaning,[8] and his submission to this effect:
I’m claiming seven weeks and – seven and a-half weeks of rent and a re-letting fee of $250. Seven weeks five days rent until we re-let it, and that comes to $1697 plus a re-letting fee of $220 which comes to $1917 and with the $80 fee I’m claiming $1997.[9]
[6]T 2 page 2 lines 12-16.
[7]I.e. the hearing on 26 August 2021. An earlier hearing on 18 June 2021 dealt with procedural matters.
[8]T 2 page 12 line 42.
[9]T 2 page 13 lines 13-16.
Practically the whole of the hearing was devoted to Attwell’s often histrionic complaints of severe hardship. So far as the counter claim is concerned the reasons for decision[10] say nothing about it, other than granting an allowance of $80 for cleaning.
[10]Extending from T 2 page 21 line 12 to page 25 line 8.
Strangely Hicks did not register any protest at the hearing about the non-decision, or at least quite limited decision, of his counter claim.
However, in support of his application for leave to appeal Hicks now submits:
The tribunal thought it appropriate to compensate Hicks for cleaning however made no mention of Hicks’ claim for loss of rent or reletting fee of $1,917. Hicks has no idea why this amount was not compensated. ... The tribunal must give proper reasons for its decision.[11]
[11]Submissions in support of leave application, annexure page 2 Grounds of Appeal paragraph (c).
Duty to give reasons
It is trite law that, as a matter of due process or natural justice, adequate reasons for a judicial decision must be given. A failure to give reasons where there is a statutory duty to do so is an error of law on the face of the record.[12] While a hypercritical approach to minor cases in tribunals is to be avoided[13], nevertheless -
[The] reasons need not be elaborate, but they must contain three essential elements: appropriate and sufficient reference to the relevant evidence; the material findings of fact that were made (and the reasons for making those findings); and the applicable law and the reasons for applying it in the way expressed in the decision.[14]
[12]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64; [2013] HCA 43; QCAT Act s 121(4).
[13]Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FCR 132 at 157; Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 485.
[14]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at 47; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430.
Unfortunately, considering the modest amount of the counter claim, one cannot be satisfied that adequate reasons were given for the implicit rejection or non-decision of most of the counter claim. If it is duly canvassed, there may, for example, be an issue as to the time lapse between Atwell’s leaving and the re-letting.
Accordingly, the appeal tribunal must reluctantly set the subject decision aside, and remit the application and counter claim for retrial at a date to be fixed by the registrar. In these circumstances it is unnecessary to consider Hicks’ other grounds of appeal.
ORDERS
1. Leave to appeal is granted.
2. The orders made in this matter on 26 August 2021 are set aside.
3. Claim and counter claim are remitted for rehearing in accordance with law on a date to be determined by the registrar.
1
5
2