Jenkins v John Ahern Real Estate
[2012] QCATA 251
•4 December 2012
| CITATION: | Jenkins v John Ahern Real Estate [2012] QCATA 251 |
| PARTIES: | Carla Lisa Marie Jenkins (Applicant/Appellant) |
| v | |
| John Ahern Real Estate (Respondent) |
| APPLICATION NUMBER: | APL104-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member David Paratz, Member |
| DELIVERED ON: | 4 December 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal allowed. 2. Appeal allowed. 3. The Order of the Tribunal made on 5 July 2010 that Carla Jenkins pay to John Ahern Real Estate the amount of $2.794.36 is set aside. |
| CATCHWORDS: | Tenancy – parties to the lease Queensland Civil and Administrative Tribunal Act 2009, s 146(c)(i) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Mr Oliver
In this matter the Appeal Tribunal consisted of Mr Paratz, QCAT Member and me. I have had the benefit of reading his reasons in draft. I agree with his reasons, and his conclusions, and the order he proposes.
Mr Paratz
This is an appeal by Carla Jenkins from orders made by the Tribunal at Beenleigh on 5 July 2010 that Carla Jenkins, Craig Ulstad, Dillon Ulstad and Jenny Ulstad, pay to John Ahern Real Estate the sum of $2,794.36 being cleaning, repairs, pest control, water usage, pool chemicals, arrears of rent and filing fees forthwith.
There had been an earlier order of the Tribunal on 13 January 2010 that Carla Jenkins, Craig Ulstad, Dillon Ulstad and Jenny Ulstad pay to John Ahern Real Estate the sum of $3,782.79 being arrears of rent, and that the Residential Tenancies Authority pay out to the lessor the sum of $1,640 being all of the rental bond in partial satisfaction of the order.
The property the subject of the order was at 7 Chestnut Street, Logan Central.
None of the Respondents appeared before the Tribunal on either hearing.
The records of the Tribunal show a Certificate of Service of a Notice of Hearing on Miss Jenkins by post to 7 Chestnut Street, Logan Central on 12 December 2009; and a Certificate of Service of the Decision by post to the same address on 15 January 2010, in relation to the first proceedings.
The records of the Tribunal show a Certificate of Service of a Notice of Hearing on Miss Jenkins by post to 7 Chestnut Street, Logan Central on 14 May 2010; and a Certificate of Service of the Decision by post to the same address on 8 July 2010 in relation to the second proceedings.
In her application for leave to appeal, Miss Jenkins says at Part B that she received the decision on 27 April 2012, and in part D that:
“I was unaware this situation even existed until being served in March 2012.”
Applications for leave to appeal, and to extend the time limit were filed on 3 May 2012 by Miss Jenkins.
Directions were issued on the papers on 23 May 2012.
Direction 3 provided that Miss Jenkins was directed to file in the registry one copy and deliver to John Ahern Real Estate one copy of all written submissions in support of the application for leave to appeal and any further submissions in support of the application for leave to appeal and any further submissions in support of the appeal that Miss Jenkins wishes to rely upon by 4pm on 15 June 2012.
Direction 4 provided that John Ahern Real Estate was directed to file similar material in response within 28 days after receipt of Miss Jenkins' material.
Direction 5 provided that if Miss Jenkins does not comply with paragraphs 2 and 3, the application will be dismissed without a hearing or further notice.
Two further documents were filed with the Tribunal on 7 June 2012. These were presumably filed by Miss Jenkins:
(a) A letter addressed “To whom it may concern” dated 29 May 2012 from Jenny and Craig Ulstad.
(b) A copy of the first two pages of a General Tenancy Agreement between Aaron and Simone English as lessor, and Carla Jenkins as tenant, in respect of premises at 9/11 Federation Street, Wynnum West dated 15 August 2009.
No material in reply was filed by John Ahern Real Estate.
Miss Jenkins has appealed the decision on these grounds:
“I wish to have my name removed from the claim/order as I moved from the property in August 2009 when the lease ended. The three other tenants remained in the property for the term of another lease. Hence incurring all the outstanding amounts. I left my half of the bond and left. I am not responsible for any of the debt.”
In her Application to extend time filed on 3 May 2012, Miss Jenkins says at Part B:
“...I’d moved from the property in August 2009, the three other respondents remained for the term of another lease, but they were not forced to sign one. They created the debt”.
The letter from Jenny and Craig Ulstad says that:
“Carla Jenkins was living with us at Chestnut Street, but she moved out August that year”.
In the material that was put before the Tribunal at Beenleigh in the first proceedings, there is a single page of a Form 18a that appears to be a page of a tenancy contract. It is signed by Craig Ulstad, Jenny Ulstad and Dillon Ulstad but is not signed by Miss Jenkins. It appears to be dated 30 January 2009, which is puzzling. This is presumably the lease agreement which Miss Jenkins says had expired in August 2009.
The rent arrears that were ordered to be paid relate to periods in November and December 2009 and January 2010.
The term of the agreement in relation to the Wynnum West property is shown on Item 6 of the Agreement as “fixed” and starting on 15 August 2009 and ending on 14 February 2010, and is signed by Carla Jenkins. This supports her contention that she was not living at 7 Chestnut Street, Logan Central, in that period.
There was no clear evidence put before the Tribunal in either proceeding that Miss Jenkins was a party to a lease in relation to 7 Chestnut Street, Logan Central, at the time of the arrears, and Miss Jenkins denies that she was a party.
Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. 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?
In the absence of satisfactory evidence that Miss Jenkins was a party to the lease, the finding that she is liable under the lease cannot stand.
In the circumstances, I propose to grant leave to appeal, and to allow the appeal, and to set aside the decision against Miss Jenkins.
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