King v King
[2010] QCATA 84
•16 November 2010
| CITATION: | King v King [2010] QCATA 84 |
| PARTIES: | John King (Appellant) |
| v | |
| Sarah Louise King, Lydia Ellen King, Benedict John King, and Samuel David King (Respondents) |
APPLICATION NUMBER: APL097 - 10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Judge Fleur Kingham, Deputy President |
DELIVERED ON: 16 November 2010
DELIVERED AT: Brisbane
ORDERS MADE: | 1. Leave to appeal is granted. 2. The decision in Minor Civil Dispute Number 1121/10 is stayed until 4.00pm 18 February 2011. 3. The Applicant may file in the Tribunal and serve on the Respondents an affidavit which exhibits a claim brought in a court of competent jurisdiction for orders to give effect to the interest he asserts in the subject property by 4.00pm 18 February 2011. 4. If the Applicant files an affidavit in the terms described in order 3, the appeal is stayed pending determination of the claim brought in the court of competent jurisdiction. 5. If the Applicant does not file an affidavit in the terms described in order 3 the appeal will be decided on the papers not before 18 February 2011. |
| CATCHWORDS : | LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES JURISDICTION –where notice to leave without ground issued – where tenant refused to leave – where tenant argued existence of equitable life interest – whether QCAT has jurisdiction to hear equitable claim – whether tenant should have been given opportunity to pursue equitable claim in court of competent jurisdiction – whether proceedings should be stayed Queensland Civil and Administrative Tribunal Act 2009 ss 9, 12(3)(a), 13(2)(b), 28(3)(a), 28(3)(e), 43(1), 43(6), 58, 95(2)(a), 142(3)(a), 145(2), 145(3) Residential Tenancies and Rooming Accommodation Act 2008 s341 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 |
REASONS FOR DECISION
This is an application for leave to appeal from a decision of the Tribunal to terminate a residential tenancy on the basis of a failure to leave.
The original application was brought by Ms Sarah King, Ms Lydia King, Mr Benedict King, and Mr Samuel King; 4 siblings who are the registered proprietors of a residential property in which their father, Mr John King, resides.
It was purchased by the King siblings in 1999. Prior to that date, John King lived in the property with his wife and at least one of the children. Samuel King, who was only 18 when it was purchased, then lived there with his parents.
John King and his wife separated in early 2009. Prior to their separation, the King Siblings said that John King and his wife paid regular amounts of about $200 per week for the property. They also paid the Body Corporate fees and Rates for the property. Sometime after the separation, John King stopped making any payments.
The King siblings issued a notice to leave without grounds on 25 January 2010. John King was given 8 weeks to vacate the premises. He did not do so. The King siblings brought an application in QCAT’s Minor Civil Dispute jurisdiction for an order to terminate the tenancy for failure to leave. The application was heard on 4 May 2010.
John King argued the signed tenancy agreement relied upon by his children was not valid and that he was not a tenant of the premises but, rather, held an equitable interest in the property.
The learned Adjudicator found a residential tenancy agreement was in place and made an order to terminate the tenancy for failure to leave[1]. John King applied for leave to appeal the decision. Leave is necessary to appeal from a Minor Civil Dispute decision of QCAT.[2]
[1] Queensland Civil and Administrative Tribunal Act 2009 s13(2)(b); Residential Tenancies and Rooming Accommodation Act 2008 s341
[2] Queensland Civil and Administrative Tribunal Act 2009 s142(3)(a)
He submitted he was denied natural justice on 2 grounds:
(a)There was evidence before the learned Adjudicator that John King was suffering from a mental illness and did not have capacity to appear self represented; and
(b)Had he been properly represented, he would have been better equipped to present to the Tribunal evidence that the residential tenancy agreement was not valid.
In most matters, parties represent themselves in QCAT unless the interests of justice require otherwise.[3] The Tribunal is bound to observe the rules of natural justice in conducting proceedings.[4]
[3] Queensland Civil and Administrative Tribunal Act 2009 s43(1)
[4] Queensland Civil and Administrative Tribunal Act 2009 s28(3)(a)
At the hearing, John King tendered a medical certificate dated 17 November 2009.[5] The certificate stated he suffered from severe depression, had made bad decisions and needed some legal help to sort out his affairs.
[5] Transcript of the proceedings pg 6
His purpose in tendering the certificate is not clear from the transcript. It occurred in the context of his statement that he was on a pension.
The certificate was dated 17 November 2009, over 4 months prior to the hearing. It did not establish his condition at the time of the hearing. He did not ask for an adjournment so he could obtain assistance and the transcript reveals that he was able to articulate his case clearly.
In this appeal, John King has produced further medical certificates from Dr Wardle which post date the hearing. They do draw into question his ability to adequately represent himself. However, on the information before the learned adjudicator, he did not deny John King procedural fairness in proceeding with the hearing.
The lease relied upon by the King siblings was purported to have been executed on 3 October 2007. John King drew the learned adjudicator’s attention to a notation which appeared on the bottom right hand corner of each page of that document:
“Form 18a - Ev10 March 2008.”
This suggests the form itself did not come into existence until after it was said to have been executed. Also curious, is the lease records a different weekly rental than the amount the King Siblings submitted was agreed John King and his wife would pay. Nor did the lease refer to Body Corporate fees or rates which the couple paid. That was not adequately explained by evidence from any of the King siblings.
Because, it seems, the learned adjudicator was satisfied some form of tenancy agreement had existed since May 1997, he considered the date of execution to be unimportant.
John King made detailed statements to the Tribunal about the circumstances in which he and his wife came to live in the residence and how the purchase of the property had been funded.
He said that he had had difficulties in managing his money over the years. His father, recognising this, had made provision for John King’s children to purchase a house that he could reside in.
Samuel King, who represented the King siblings at the hearing, stated the money from his grandfather was a gift to the children. At that time he was 18 and lived in the house with his parents. He said the lease was later entered into so that his father could obtain rental assistance through Centrelink. He denied, however, that the lease was a sham.
Under the Residential Tenanciesand Rooming Accommodation Act 2008 (RTRA Act) a residential tenancy agreement may be wholly in writing, wholly oral or wholly implied.[6] A residential tenancy is the right to occupy premises under a residential tenancy agreement[7]. A residential tenancy agreement is an agreement under which a person gives someone else a right to occupy residential premises[8].
[6] Residential Tenancies and Rooming Accommodation Act 2008 s12(3)(a)
[7] Residential Tenancies and Rooming Accommodation Act 2008 s11
[8] Residential Tenancies and Rooming Accommodation Act 2008 s12(1)
The learned adjudicator assessed the evidence before him and concluded the only cogent evidence was that there was a residential tenancy in existence.
The learned adjudicator correctly determined QCAT does not have jurisdiction to determine John King’s claim in equity. QCAT could only make a final decision that could be made under the RTRA Act,[9] so he could not have determined that John King did have an equitable interest in the property. However, that did not mean that the evidence given about that matter was not relevant to his function as an adjudicator on this claim.
[9] Queensland Civil and Administrative Tribunal Act 2009 s13(2)(b)
In deciding the only cogent evidence was that there was a residential tenancy in existence, with respect, the learned adjudicator erred. He stated the evidence about the equitable claim had nothing to do with the tenancy claim before him. It may be that his correct conclusion about QCAT’s jurisdiction led him to ignore evidence that was still relevant to the King siblings’ claim.
In order to succeed in their claim, the King siblings had to establish that John King’s right to occupy the premises arose from a residential tenancy agreement. John King’s evidence was that the document proffered by the King siblings is not the source of his right to occupy. He also disputed Samuel King’s evidence about a pre-existing tenancy arrangement. If John King’s claim is established, there is no residential tenancy agreement within the meaning of the RTRA Act and QCAT could not have made an order to evict John King from the premises.
The learned adjudicator placed reliance on a document which he accepted formalised a prior tenancy agreement, despite the obvious inaccuracy about its date of execution. With respect he failed to pay due regard to other evidence given by both John and Samuel King about the circumstances in which the property was purchased and John King came to reside there[10].
[10] Queensland Civil and Administrative Tribunal Act 2009 s28(3)(e)
Although he could not determine the equitable claim, the learned adjudicator was required to take into account all relevant evidence. That included evidence:
(a)That the arrangement between the parties was not, in truth, a residential tenancy;
(b)That the document relied upon by the King siblings was not executed when it purported to have been executed; and
(c)That the purpose of entering into the lease was to enable John King to obtain rent assistance.
In a proceeding for a minor civil dispute, QCAT must make orders that it considers fair and equitable to the parties in order to resolve the dispute[11]. It must ensure, so far as is practicable, that all relevant material is disclosed to enable it to decide the proceeding with all the relevant facts[12]. The evidence given about whether John King’s right to occupy arose from a residential tenancy agreement or some other arrangement was unsatisfactory. There were clearly other people who could have given relevant evidence on that matter. Whilst it may not have been appropriate for the question to be fully ventilated in a jurisdiction that could not recognise John King’s purported interest, this did not mean that the learned adjudicator was entitled to entirely disregard John King’s evidence.
[11] Queensland Civil and Administrative Tribunal Act 2009 s13(1)
[12] Queensland Civl and Administrative Tribunal Act 2009 s28(3)(e)
Evidently, the learned adjudicator considered he had no option but to proceed on the basis of the evidence that a tenancy agreement was in existence. Respectfully, he erred in that conclusion. He was not so constrained and there were other options open to him.
Before making a final decision in a proceeding, the tribunal has the power to make an interim order it considers appropriate, in the interests of justice, to protect a party’s position for the duration of the proceeding or, to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction[13].
[13] Queensland Civil and Administrative Tribunal Act 2009 58
The learned adjudicator could have made interim orders which afforded John King the opportunity to have his claim determined by a court of competent jurisdiction, before the residential tenancy claim was determined. At one point during the hearing, it seems that was what the learned adjudicator had in mind.
In this case, as in so many others, the learned adjudicator was required, in an abbreviated hearing, under time pressure, with inadequate evidence and without the assistance of submissions on the law, to quickly determine a matter of some complexity.
In that context, respectfully, the learned adjudicator erred in concluding the only cogent evidence was that a residential tenancy agreement was in existence. He also erred in concluding that he had no alternative but to proceed with the residential tenancies claim, even though there was a clear dispute about the basis of John King’s right to occupy the premises. That is sufficient ground to grant leave to appeal.
The Appeal Tribunal, however, finds itself in the same position as did the learned adjudicator. It has inadequate evidence to determine whether there was a residential tenancy agreement in existence and does not have the jurisdiction to determine that John King has an equitable right or interest. The proper course would be to make the orders that were open to the learned adjudicator.
The Appeal Tribunal has the power to stay the operation of the original decision pending the final outcome of the appeal[14] and may do so on its own initiative[15]. It also has the power to stay the appeal proceedings[16]. The Appeal Tribunal must be satisfied the balance of convenience favours staying the decision.[17]
[14] Queensland Civil and Administrative Tribunal Act 2009 s145 (2)
[15]Queensland Civil and Administrative Tribunal Act 2009 s145(3)
[16] Queensland Civil and Administrative Tribunal Act 2009 s58
[17] Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, at 694-5
The King siblings want the property vacated so they can make decisions about its future use. Their plans will necessarily be delayed by a stay. John King is no longer contributing to the costs of the property and, until the matter is resolved, the King siblings are bearing the burden of costs associated with the property. There is no evidence, however, that any of them would be placed in immediate peril if John King continues to reside in the property while his claim is litigated.
Against this, John King told the Tribunal he is not in a position to obtain alternative accommodation. He is unemployed. He has produced further medical evidence which does address his medical condition, at least at the time the appeal was lodged. It is reasonable to accept that he is unlikely to obtain employment in the near future. If the stay is not granted, he will be without a home when he strongly asserts an interest that would allow him to reside in the property for life. He is now being assisted by the Queensland Public Interest Law Clearing House (QPILCH).
Given those factors, the balance of convenience favours granting the stay. That should, however, be granted on conditions which would require John King to take action to prosecute his claim for an equitable interest so that the real dispute between the parties may be resolved.
Leave to appeal is granted. The decision in Minor Civil Dispute Number 1121/10 is stayed until 4.00pm 18 February 2011. Directions will be made to provide John King the opportunity to pursue his equitable claim in a court of competent jurisdiction. If he does not do so, or if he is unsuccessful in that claim, the appeal will be further considered.
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