Hugh Surf Resorts Pty Ltd t/as Beachcomber Surfers & the Kafritsas Family Trust v Scholefield
[2014] QCATA 149
•24 June 2014
| CITATION: | Hugh Surf Resorts Pty Ltd t/as Beachcomber Surfers & The Kafritsas Family Trust v Scholefield [2014] QCATA 149 |
| PARTIES: | Hugh Surf Resorts Pty Ltd t/as Beachcomber Surfers ABN 40 095 238 136 The Kafritsas Family Trust (Applicants/Appellants) |
| v | |
| Sarah Ann Scholefield (Respondent) |
| APPLICATION NUMBER: | APL094-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 24 June 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 20 September 2013, so far as it relates to the second respondent, Kafritsas Family Trust, is set aside. 4. The decision of 20 September 2013 is otherwise confirmed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY– where tenant signed holiday let for 3 months – whether holiday let – whether Residential Tenancies and Rooming Accommodation Act applied to tenancy agreement – where lessor’s agent removed tenant’s goods and locked tenant out of premises – where lessor’s agent submitted tenant had abandoned premises – where tenant’s goods lost – where tenant filed application for compensation for breach of tenancy agreement – where tribunal ordered compensation – whether tribunal able to make orders against a trust – whether lack of procedural fairness – whether tribunal erred in findings of fact - whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
This dispute has already been the subject of a successful application for leave to appeal to the appeals tribunal. The facts have not changed since the earlier decision.
Ms Scholefield signed a three month holiday let for an apartment managed by High Surf Resorts Pty Ltd. At some stage, she left the apartment. High Surf changed the locks and put Ms Scholefield’s goods into storage. She collected some of them but the balance went missing. Ms Scholefield filed a claim in the tribunal claiming damages for the loss of the goods plus return of the $1,400 bond she paid. By the time of the hearing the subject of this appeal, Ms Scholefield’s claim had increased to $211,140. The tribunal calculated her loss at $40,790.
High Surf and the trust want to appeal that decision. They say that the respondents are wrongly named. They say that a trust cannot be a party to a proceeding. They say that the learned Adjudicator did not provide procedural fairness. They say the learned Adjudicator erred in law because he did not consider whether High Surf discharged its duty of care as bailee of Ms Scholefield’s goods. They say the learned Adjudicator erred in his calculation of Ms Scholefield’s loss. They say the learned Adjudicator ignored High Surf’s bona fide attempts to mitigate Ms Scholefield’s loss and ignored Ms Scholefield’s contribution to her own loss. They also say the learned Adjudicator erred in finding that Ms Scholefield did not abandon the premises.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:
There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
[1][2005] QCA 294 at [3].
The misdescription of High Surf was probably because of the limitations of the claim form, which will only accept a set number of characters. For completeness, any order against High Surf should record its correct name as Hi Surf Resorts Pty Ltd t/as Beachcomber Surfers Paradise.
Ms Scholefield started this proceeding on 11 May 2012. It has been the subject of numerous directions and, as I have already mentioned, one appeal. It is extraordinary that, only now does the respondent raise the important issue of whether the trust can be a named respondent. High Surf is correct in its assertion that a trust is not a legal entity. It is ‘is simply a bundle of rights and obligations which exist in relation to particular property held by particular people, called trustees’.[2] To that limited extent, leave to appeal should be granted, the appeal allowed and the order against the trust should be vacated.
[2]Moore & Anor v Devanjul Pty Ltd [2010] QDC 353 at [50].
High Surf submits that the learned Adjudicator did not provide it with “much” of an opportunity to give evidence and that it was not afforded procedural fairness. I have considered the transcript carefully. Both parties had an approximately equal opportunity to address the learned Adjudicator. The learned Adjudicator chided Ms Scholefield when she interrupted Mr Kafritsas[3]. Mr Kafritsas took the learned Adjudicator to particular documents and had a full opportunity to address the learned Adjudicator about those documents[4].
[3]See, for example, transcript page 1-17, lines 24-26.
[4]See, for example, transcript page 1-8, lines 10-28, page 1-10, lines 14-21.
I do not understand High Surf’s submission that the learned Adjudicator “seemed unwilling” to hear Mr Kafritsas’ evidence. The learned Adjudicator told Mr Kafritsas that he would consider all the material.[5] The learned Adjudicator’s reasons for decision summarise High Surf’s evidence. This shows that, whether he was willing or not, the learned Adjudicator did listen to the evidence and considered it in his reasons for decision.
[5]Transcript page 1-47, lines 9-15.
High Surf’s submissions about a lack of procedural fairness are subjective and are not supported by an objective consideration of the transcript.
At [64] of his reasons for decision[6], the learned Adjudicator stated:
Hi Surf’s position after removing her possessions in breach of the residential tenancy agreement was certainly no less than that of a bailee of goods, owing a duty of care in respect of them.
[6]Scholefield v High Surf Resorts Pty Ltd & Anor [2014] unreported.
High Surf submits that the learned Adjudicator then failed to consider whether High Surf breached its duty as bailee. That submission ignores the learned Adjudicator’s earlier finding[7] that Ms Scholefield’s right to compensation arose from a breach of the tenancy agreement. It also ignores the learned Adjudicator’ finding[8] that, while he may obtain assistance from the Common Law in assessing the quantum of that compensation, his decision is not necessarily limited by Common Law considerations. The tribunal has consistently interpreted the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) as a code that substantially alters Common Law rights[9]. The matters to which the learned Adjudicator had to turn his attention are contained in s 421 of the Act. Whether or not High Surf complied with its bailee obligations is not the question.
[7]Reasons for decision at [59].
[8]Ibid [62].
[9]Coleman v Dolman [2011] QCATA 47 at [12].
There is no doubt that High Surf had a conflict between its duty to the owner and its obligations under the RTRA Act. But the obligations under the RTRA Act are the owner’s obligations and, as its agent, High Surf had a duty to comply with those obligations. The tribunal has no interest in the relationship between High Surf and the owner.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[10] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[11]
[10]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[11]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
The learned Adjudicator acknowledged that assessing compensation was a difficult task[12]. Ms Scholefield produced over 100 pages to support her claim for compensation. She supplied receipts for items totalling $28,605.35. She produced eBay and online comparisons for items totalling $4,357.00. There is certainly evidence as to the cost of items. Therefore, I interpret High Surf’s submission to be that Ms Scholefield could not produce satisfactory evidence that those items were in the unit at the time she was locked out.
[12]Reasons for decision at [66].
It is a difficult thing to prove that you owned a household item at a particular point in time. Ms Scholefield provided photographs of some items in situ[13] and receipts for items she purchased during her tenancy. By contrast, even though it removed and stored Ms Scholefield’s goods, High Surf did not take the simple precaution of creating an inventory of the goods it removed[14].
[13]Transcript page 1-34, lines 29-34.
[14]Transcript page 1-27, lines 14-19.
At the end of the hearing, the learned Adjudicator directed that Ms Scholefield file and serve an affidavit proving ownership and value. He directed that High Surf file and serve material in response. Ms Scholefield filed and served an affidavit that swore to the list of items she previously provided and the 155 pages she provided in support. Mr Kafritsas filed and served an affidavit that simply denied the allegations. He did not provide any proof, as the learned Adjudicator suggested he might[15], that items were part of the unit inventory, or that someone else owned the items.
[15]Transcript page 46 line 44 to page 1-47 line 7.
The learned Adjudicator was left with Ms Scholefield’s uncontested evidence that she owned the items she claimed. The learned Adjudicator accepted that uncontested evidence. He was entitled to do so and I can see no error in his approach.
For the same reason, the learned Adjudicator accepted Ms Scholefield’s evidence that $1,800 cash was missing. The learned Adjudicator did not need to make a finding about what happened to that cash. He found that there was a breach of the tenancy agreement. He found that the cash was missing because of the breach. The evidence can support the learned Adjudicator’s finding and there is nothing in the transcript to persuade me that he should have taken a different view.
It is implicit in the learned Adjudicator’s reasons for decision[16] that he did not accept High Surf’s version of the steps taken to reunite Ms Scholefield with her belongings. Once again, the learned Adjudicator had two competing versions of events. Mr Kafritsas did not, and could not, give direct evidence[17] and he did not produce any witness who could give direct evidence. Ms Scholefield gave direct evidence. The learned Adjudicator preferred her version. There is nothing in the transcript to persuade me that he should have taken a different view. For the same reason, I reject High Surf’s submission that the learned Adjudicator ignored Ms Scholefield’s contribution to her own loss.
[16]Reasons for decision at [64].
[17]Ibid [47].
I accept that assessing quantum based on an insurance policy is unorthodox. If the learned Adjudicator had accepted every invoice and every eBay comparison, Ms Scholefield’s proven claim would have been $32,962.35. On top of that, the insurance policy was evidence of three special items of jewellery with a total value of $8,500 that were not part of the goods claimed in the $32,962.36. On any view, the learned Adjudicator’s broad brush approach favoured High Surf. If the learned Adjudicator was in error, and I make no finding about that, High Surf did not suffer a substantial injustice as a result.
Contrary to High Surf’s submissions, the learned Adjudicator did not rely only on Ms Scholefield’s eBay transactions to find that she had not abandoned the unit. That was one factor in his deliberations but it served to confirm Ms Scholefield’s direct evidence that she did not abandon the unit. Mr Kafritsas could not produce a ledger[18]. He did not produce evidence from witnesses who knocked on Ms Scholefield’s door and received no answer. He did not produce evidence from witnesses who spoke to the bikies who were allegedly living in her unit. As the learned Adjudicator observed, there was no evidence when one might have legitimately expected some so he drew an adverse inference[19]. There is nothing in the transcript to persuade me that he should have taken a different view.
[18]Ibid [49].
[19]Ibid [51].
There is no reasonably arguable case that the learned Adjudicator was in error in his substantive decision. Save for removal of the trust as a respondent, the learned Adjudicator’s decision of 20 September 2013 is confirmed.
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