Jimenez v Sternlight Investments t/a LJ Hooker Alexandra Hills
[2010] QCATA 29
•15 July 2010
| CITATION: | Jimenez v Sternlight Investments t/a LJ Hooker Alexandra Hills [2010] QCATA 29 |
| PARTIES: | Maria Jimenez (Applicant) |
| v | |
| Sternlight Investments t/a LJ Hooker Alexandra Hills (Respondent) |
APPLICATION NUMBERS: APL046-10
| MATTER TYPE: | Appeal |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | President |
DELIVERED ON: 15 July 2010
DELIVERED AT: Brisbane
ORDERS MADE: 1. Leave to appeal is granted;
2. Allow the appeal;
3. Remit the matter to the tribunal for
rehearing
| CATCHWORDS : | RESIDENTIAL TENANCIES – TERMINATION ORDER – COMPENSATION – where evidence adduced about weekly rent was confusing and imprecise – where adjudicator ordered termination of the tenancy and compensation to owner for arrears in rent – whether compensation order was justified on evidence available before the Tribunal PROCEDURAL FAIRNESS – REASONS FOR DECISION – ADEQUACY – Queensland Civil and Administrative Tribunal Act 2009, s 121(4) – where adjudicator announced orders without explaining reasons for his decision – whether failure to provide reasons for findings a denial of natural justice – whether error of law Residential Tenancies and Rooming Accommodation Act 2008, s 293 Adamson v Queensland Law Society Incorporated [1990] 1 Qd.R. 498, considered |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: |
| |
| RESPONDENT: |
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REASONS FOR DECISION
[1] Ms Maria Jimenez was a tenant in a residential property at Island Street in Cleveland. The tenancy is managed by LJ Hooker Alexandra Hills on behalf of the owners. Ms Jimenez became a tenant, along with her partner and two other persons, under a six month fixed term General Tenancy Agreement commencing on 29 July 2008. Ms Jimenez and her partner lived in the upper level of the premises, and the other two tenants in the downstairs, lower level.
[2] The rent for the whole premises was, under the agreement proper, $550 per week. Nothing in the agreement suggested either Ms Jimenez and her partner, or the two occupants of the downstairs section, had separate obligations for any part of the rent.
[3] Two additional documents were attached to the lease. The first contained ‘additional special terms’ including a clause to the effect that the agreement was for a fixed term lease, but following its expiry would continue as a periodic agreement.
[4] The other is a letter dated 7 August 2008, signed by the two tenants in the lower level, stating that four additional persons were moving into the lower level (for a total of six) and that the weekly rent for these tenants would consequently increase from $275 to $325.
[5] The lease expired on 29 January 2009. It was not renewed by the tenants in the lower level and Ms Jimenez’ partner’s name was also subsequently removed from the lease (on 27 February 2009).
[6] At the expiry of the lease Ms Joyce, the agent, crossed off the names of the previous three tenants and initialled where the names had been marked off. Ms Joyce also crossed off $550 as the weekly rent and substituted $300 in its place, adding outside the margin that it was only for the upper level which Ms Jimenez continued to occupy.
[7] During the course of Ms Jimenez’ subsequent tenancy she was issued with nine Form 11 Notices to Remedy Breach, for arrears of rent. On 14 January 2010, she was served with a Notice to Leave on account of rental arrears.
[8] On 18 March 2010 Ms Joyce filed an application in QCAT to have the tenancy terminated for Ms Jimenez’ failure to leave (s 293), and alleged repeated breaches (s 299) of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA). The matter was heard by a QCAT adjudicator on 1 April 2010. Mr Martinsen appeared on behalf of Ms Jimenez, and Ms Joyce represented the owners.
[9] The main issue in dispute was the amount of rent Ms Jimenez’ was obliged to pay during both the term of the original agreement, and the subsequent term, and whether or not it included electricity. The evidence from both parties about rent was, the transcript shows, unclear and confusing.
[10] Ms Joyce alleged that the weekly rent during the initial fixed term tenancy was $300, excluding electricity; and that it was then altered to $300 including electricity at the expiry of the fixed term tenancy. She submitted a copy of her tenant ledger, of which she was the sole author, in support of this allegation.
[11] Plainly, the allegation does not sit comfortably with the tenancy agreement, which does not discriminate between tenants or parts of the premises and only refers to total rent of $550.
[12] In any event the ledger indicates, on its face, that Ms Jimenez was paying for the most part an average of $300 per week until November 2009. There are variations at different stages of the tenancy, some for which appear to account for biweekly rental payments and others for additional, miscellaneous expenses.
[13] Ms Joyce also claimed that she kept separate ledgers for the upstairs and downstairs tenants (during the initial fixed term lease) to show their separate contributions, but did not produce any evidence of these separate ledgers at the hearing.
[14] Mr Martinsen, for Ms Jimenez, contended that her weekly rent under the fixed term lease was always $275, excluding electricity, and this continued until 29 November 2009. The argument began with the observation that the total rent during the initial fixed term was $550; then, he pointed to the letter of 7 August 2008 stating that the weekly rent for the tenants in the lower level would increase from $275 to $325 so that, logically in his submission, Ms Jimenez must also have been paying an equal share of $275 per week.
[15] He did not, however, submit any direct evidence to contradict the payments recorded in Ms Joyce’s tenant ledger, showing an average rent of $300 before November 2009. His argument was also rather undermined by his production of a letter written by Ms Joyce and dated 16 November 2009 which stated that Ms Jimenez was, at that time, paying $300 per week in rent, including electricity.
[16] Other issues which arose at the hearing were whether Ms Jimenez ought be compensated for her contributions to electricity during the fixed term lease because, she alleged, the other tenants did not contribute to the electricity bills; and, whether she was lawfully charged for the removal of a mattress left outside of the property.
[17] At the conclusion of the hearing the learned adjudicator terminated the tenancy agreement on the grounds of failure to leave; ordered that Ms Jimenez pay $1454 as compensation for arrears in rent, removal of the mattress and the filing fee; and ordered that the bond of $1100 be paid out to the owners in part satisfaction of the tenant’s debt to the owners.
[18] Mr Martinsen, on behalf of Ms Jimenez, filed an application for leave to appeal the adjudicator’s orders. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 142 (3)(a)(i). It was directed that the application for leave, and any appeal if leave was granted[1], be determined by written submissions, which both parties have exchanged and filed.
[1]QCAT Order 16 April 2010
[19] For leave to be granted the appeal tribunal must be satisfied that there is a reasonably arguable case of error in the original decision and that it is necessary to correct a substantial injustice to the applicant caused by that error: Quyd Pty Ltd Marvass Pty Ltd [2009] 1 Qd R 41 at 6.
[20] Mr Martinsen’s arguments for leave to appeal are, broadly speaking, that the learned adjudicator erred in deciding to terminate the tenancy by failing to properly consider and apply the evidence; that as a result, the decision was not based on the substantial merits of the case; and that the learned adjudicator failed to provide adequate reasons for his decision.
[21] It is unnecessary to consider the first two grounds because, for reasons which follow, I am persuaded that the final must succeed.
[22] The Tribunal is under a positive duty to give either oral or written reasons for its decisions: QCAT Act, s 121(4). The provision reflects an obligation which is well entrenched in courts and tribunals[2]. It is said, relevantly here, that the duty is necessary to enable the matter to be properly considered on appeal[3].
[2]See Adamson v Queensland Law Society Incorporated [1990] 1 Qd.R. 498
[3]Public Service Board of New South Wales v Osmond (1986) 159 C.L.R. 656 at 666 per Gibbs C.J; Hill v Arnold (1976) 9 A.L.R. 350 at 357
[23] The transcript shows that the hearing was conducted in, essentially, a conversational manner with both Ms Joyce and Mr Martinsen addressing aspects of their cases. Ms Joyce claimed that her records showed arrears of rent of $1265 while Mr Martinsen contended that his calculations showed the tenant was actually in credit, in the sum of $300. Ms Joyce also claimed $99 for the cost of removing the mattress, and $90 for filing fees – a total, with the alleged arrears, of $1454.
[24] At the conclusion of the hearing, the transcript shows, the learned adjudicator said: ‘I think the agent’s – the agent’s right’. He then made a termination order, and found that the tenant owed the lessor $1454 for compensation and ordered that the bond of $1100 be paid out to the lessor in partial satisfaction of that compensation.
[25] At the conclusion of the passage in which the learned adjudicator spoke the terms of his order Mr Martinsen asked him for reasons. He responded by saying that he preferred the ‘submissions of the agent’.
[26] A failure to give full reasons does not necessarily amount to an error of law. The nature and extent of the obligation will vary according to the nature of the case[4].
[4]Attorney-general v Kehoe [2001] 2 Qd R 350 at 356; Tully v McIntyre [2001] 2 Qd R 338
[27] Here, however, it is difficult to discern how the learned adjudicator came to the view that the evidence presented by Ms Joyce was sufficient or persuasive to warrant an order for the relief she sought. Nothing in the transcript suggests he saw, or received in evidence, any documents to support it. Each party, the transcript shows, spoke about their respective calculations and the adjudicator accepted what Ms Joyce said but rejected, without explanation, Mr Martinsen’s calculation that the tenant is, in truth, in credit for rent.
[28] Mr Martinsen’s submissions about the inconsistencies in the papers associated with the tenancy were accepted, in part, by Ms Joyce, who acknowledged that she had ‘changed’ the original lease without Ms Jimenez’ consent and ‘didn’t do it the correct way’ and was ‘to blame’[5]. On any view these admissions raise questions about the true nature and terms of Ms Jimenez’ tenancy including, critically, the amount of rent she was obliged, or had agreed, to pay.
[5]Transcript, p 1-7.40-50
[29] While, as observed earlier, the ledgers may have appeared to support Ms Joyce’ contention about the actual amount of weekly rent there was, on any view, sufficient uncertainty and imprecision about the history of the matter to require that findings be made about the correct rent before any determination about the existence of arrears could be made.
[30] Each party’s case was, it may be said, beset by uncertainty and imprecision. On any view, the learned adjudicator’s task was not easy and he was also working under the inevitable pressures of the Minor Civil Disputes jurisdiction with, as he observed at one point, at least one other case awaiting a hearing.
[31] It appears that those pressures have, unfortunately, caused him to overlook the need to address the central issue of the correct rent and, from a finding about that matter, proceed logically to a decision in favour of one party or the other. When, as here, a factual dispute arises it is necessary for the decision maker to explain choices between conflicting evidence[6].
[6]Shillingsworth v Murray (2005) 2 DDCR 450; [2004] NSWCA 465 at [37]-[38].
[32] As Dr J R S Forbes has observed, the case for treating reasons for a decision as a necessary element of natural justice is strong[7]. As he also observes, a failure to give reasons ‘… adds insult to the injury of an adverse decision. Without reasons, how can a party be confident that the case was understood and properly considered?’ Denial of natural justice is an error of law[8] which, in the result, means the applicant here should have leave to appeal.
[7]Justice in Tribunals (3rd Ed) (Federation Press, Sydney, 2010) at p 249 para 13.2
[8]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
[33] The absence of reasons, and its consequences, also means the appeal itself should be upheld.
[34] It is also unfortunate that, in the absence of reasons and because the evidence was so diffuse and uncertain, it is impossible for this appeal tribunal to venture its own decision, and necessary to order that the matter be returned to the Minor Civil Disputes jurisdiction to be reheard[9].
[9]QCAT Act, s 146(c)
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