Lindenberg v Kalwun Development Corporation
[2012] QCAT 259
•22 June 2012
| CITATION: | Lindenberg v Kalwun Development Corporation [2012] QCAT 259 |
| PARTIES: | Therese Lindenberg |
| v | |
| Kalwun Development Corporation Limited |
| APPLICATION NUMBER: | MCDT1073-11 / MCDT1085-11 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 12 April 2012 |
| HEARD AT: | Southport |
| DECISION OF: | Christine Trueman, Adjudicator |
| DELIVERED ON: | 22 June 2012 |
| DELIVERED AT: | Southport |
ORDERS MADE: | [1] THAT in relation to claim 1073-11 the Form 12 Notice to leave issued on 28/11/2011 is set aside. [2] That claim 1085-11 is dismissed. |
| CATCHWORDS: | RESIDENTIAL TENANCIES – TERMINATION – NOTICE TO LEAVE – RETALIATORY – DEFECTIVE NOTICES – Where Respondent issued the Applicant with a Notice to leave with grounds for rent arrears – where the Applicant applied to have the Notice set aside as retaliatory and defective – where the Applicant alleges rent has been paid – where Applicant has been successful in having prior Notices to leave issued against her set aside – whether the Notice was retaliatory – where tenant had Notice to remedy breach regarding rental arrears issued to her where Notice was defective and without merit – where Applicant alleges subject to ongoing bullying and harassment by Respondent – application of aboriginal tradition Queensland Civil and Administrative Tribunal Act 2009, ss 13, 43, 58, 61 Residential Tenancies and Rooming Accommodation Regulation 2009, reg 44 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANTS: | Ms Therese Lindenberg in person |
RESPONDENT: | Kalwun Development Corporation Limited represented by Ms Billie Edwards |
REASONS FOR DECISION
The Applicant Ms Therese Lindenberg (“Ms Lindenberg”) is a tenant of the property at 72 Rivergum Drive, Nerang in Queensland. The Respondent Kalwun Development Corporation Ltd (“Kalwun”) is the owner of the property. The tenant is subject to a periodic tenancy that started on 28/6/2010. She has lived in the property since November 2005.
History
This tenancy has had a lengthy litigation history. Kalwun have attempted to remove the tenant, Ms Lindenberg, from this property on at least 3 prior occasions since 2006. The first application to evict her was filed in the then Small Claims Division of the Magistrates Court in Southport and the tenant filed an application that was successful in having the Form 12 Notice to leave set aside with findings that the Notice was issued on retaliatory grounds by Kalwun.
In 2010 a further Notice to leave without grounds was served on the tenant dated 2 December 2010. The tenant again bought an application to set aside the Form 12 Notice to leave without grounds which was heard in this tribunal on 1 February 2011. That decision was delivered on 19 May 2011 with an order setting aside the Notice to leave based on retaliatory grounds.
For whatever reason, Kalwun again decided to issue a further Notice to leave without grounds to the tenant, Ms Lindenberg, the Notice was dated 8 June 2011 and served on Ms Lindenberg. She filed an application to the tribunal again seeking orders to have the Notice to leave set aside. That application was heard on 10 August 2011 and the decision was published on 27 October 2011 with orders setting aside the Notice to leave without grounds on the basis that the Notice was retaliatory.
In this case Ms Lindenberg filed her application to set aside the Form 11 Notice to remedy breach dated 3/10/2011 relating to rent arrears and Form 12 Notice to leave with grounds dated 8/11/2011 which was issued due to a failure by the tenant to remedy the breach of rental arrears. The tenant claims that the Notice to remedy breach was defective as she had paid all her rent at the time the Notice issued. Her claim number was 1073-11 and was filed on 21 November 2011.
Kalwun filed a claim on 1 December 2011 seeking orders for termination of the lease and for a warrant of possession for the property for failure by the tenant to pay rental arrears and failure to leave the property. That claim was number 1085-11 and was listed for an urgent hearing on 13/12/2011.
At the hearing on 13 December 2011 it appears from the court file that a member heard the matter, that Kalwun were represented by a solicitor although an order granting leave for Kalwun to be represented was not made. The Respondent, Ms Lindenberg did not appear. An order was made on 13/12/2011 that the lease be terminated as from 17/2/2012 and that a warrant of possession would issue to take effect on 17/2/2012 for a period of 14 days with the warrant to expire on 2/3/2012.
The evidence on the file suggests that Kalwun later contacted the tribunal on 15 December 2011 making application and seeking an order that the warrant be released earlier and acknowledging that as the tenant Ms Lindenberg was not present in court they would provide a copy of the termination order and warrant to her. The evidence was that Ms Lindenberg had faxed a letter to the tribunal requesting that the application for termination filed by Kalwun be adjourned to a later date due to her “deteriorating health issues” and that she “could not appear” at the hearing on 13 December 2011. That letter was faxed on 12 December 2011 but it was not clear if the Member who heard the matter on 13 December 2011 had notice of the tenant’s request.
The tribunal can exercise its discretion under the Queensland Civil and Administrative Tribunal Act 2009 (the “QCAT Act”) and pursuant to section 61(1) waive a procedural requirement when dealing with matters before it. The tribunal can waive procedural requirement for Ms Lindenberg to file an actual Application to Reopen and can determine that a letter or facsimile be considered such application and request to reopen the matter. This was considered based on the facts she had requested an adjournment, advised that she could not be present at the hearing and advising that she had filed her own earlier claim to set aside the subject Form 11 and 12 Notices relating to the termination application. She also alleged that she had paid her rent and did not owe any rent arrears at all, had receipts to prove her contention and as such that the Notices were defective.
Section 61 of the QCAT Act states:
61 Relief from procedural requirements
(1) The tribunal may, by order:
(a) extend a time limit fixed for the start of a proceeding by this Act or an enabling Act; or
(b) extend or shorten a time limit fixed by this Act, an enabling Act or the rules; or
(c) waive compliance with another procedural requirement under this Act, an enabling Act or the rules.(2) An extension or waiver may be given under subsection (1) even if the time for complying with the relevant requirement has passed.
(3) The tribunal can not extend or shorten a time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding.
(4) The tribunal may act under subsection (1) on the application of a party or potential party to the proceeding or on its own initiative.
(5) The tribunal's power to act under subsection (1) is exercisable only by:
(a) the tribunal as constituted for the proceeding; or
(b) if the tribunal has not been constituted for the proceeding by a legally qualified member, an adjudicator or the principal registrar.The effect of the application to reopen was to make an interim order suspending the operation of the termination order and warrant of possession and to remit the matter for hearing. The tribunal has the power pursuant to section 58 of the QCAT Act to make interim orders on the application by a party or of its own initiative. Section 58 states:
58 Interim orders
(1) Before making a final decision in a proceeding, the tribunal may make an interim order it considers appropriate in the interests of justice, including, for example:
(a) to protect a party's position for the duration of the proceeding; or
(b) to require or permit something to be done to secure the effectiveness of the exercise of the tribunal's jurisdiction for the proceeding.
Note”
See also section 22(3) for the tribunal's power to stay the operation of a reviewable decision while it is being reviewed by the tribunal.(2) The tribunal may make an interim order on the application of a party to the proceeding or on its own initiative.
(3) In making an interim order, the tribunal:
(a) may require an undertaking, including an undertaking as to costs or damages, it considers appropriate; or
(b) may provide for the lifting of the order if stated conditions are met.(4) The tribunal may assess damages for subsection (3)(a).
(5) The tribunal's power to assess damages under subsection (4) is exercisable only by a legally qualified member.
(6) In this section:
interim order means an order that has effect for the duration of a proceeding or a shorter period.
The fact that the tenant was not present at the hearing when the previous member made orders against her to terminate her lease and to order vacant possession of the property was not fair or equitable to her. This tribunal is bound by the QCAT Act to make decisions in minor civil matters that are fair and equitable to the parties. In particular section 13 of the QCAT Act commands the tribunal to make orders that are fair and equitable to the parties. The fact that the tenant was not present to give evidence and present her case, had requested an adjournment for medical reasons and for the member to have proceeded in such circumstances was neither fair nor equitable. Section 13 states:
13 Deciding minor civil dispute generally
(1) In a proceeding for a minor civil dispute, the tribunal must make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute but may, if the tribunal considers it appropriate, make an order dismissing the application.
(2) For subsection (1), the tribunal may make only the following final decisions to resolve the dispute:
(a) for a claim mentioned in schedule 3, definition minor civil dispute, paragraph 1(a), (b), (c) or (d)
(i) an order requiring a party to the proceeding to pay a stated amount to a stated person; or
(ii) an order that a stated amount is not due or owing by the applicant to a stated person, or by any party to the proceeding to the applicant; or
(iii) an order requiring a party to the proceeding, other than the applicant, to perform work to rectify a defect in goods or services to which the claim relates; or
(iv) an order requiring a party to the proceeding to return goods that relate to the claim and are in the party's possession or control to a stated person; or
(v) an order combining 2 or more orders mentioned in subparagraphs (i) to (iv);
(b) for a tenancy matter a decision the tribunal may make in relation to the matter under the Residential Tenancies and Rooming Accommodation Act 2008;
(c) for a claim that is the subject of a dispute under the Neighbourhood Disputes Resolution Act 2011 a decision or order the tribunal may make in relation to the matter under the Neighbourhood Disputes Resolution Act 2011;
(d) for a claim that is the subject of a dispute under the Building Act 1975 , chapter 8, part 2A a decision or order the tribunal may make in relation to the matter under the Building Act 1975 ,chapter 8, part 2A.(3) However, the tribunal can not make an order or decision under subsection (2) that:
(a) purports to require payment of an amount, performance of work or return of goods of a value of more than the prescribed amount; or
(b) purports to grant relief of a value of more than the prescribed amount from the payment of an amount; or
(c) combines 2 or more orders mentioned in subsection (2)(a)(i) to (iv) and purports to award or declare entitlements or benefits (or both) of a total value of more than the prescribed amount.(4) Subsection (3) does not apply to:
(a) a claim for repair of a defect in a motor vehicle under the Property Agents and Motor Dealers Act 2000, section 324; or
(b) a tenancy matter; or
Note :
See the Residential Tenancies and Rooming Accommodation Act 2008, section 516 for tenancy matters involving amounts greater than the prescribed amount.
(c) a claim that is the subject of a dispute under the Building Act 1975, chapter 8, part 2A.
The tribunal must convey procedural fairness to all parties to a claim and the QCAT Act requires the tribunal when conducting proceedings generally to act fairly[i] and must observe the rules of natural justice.[ii] The hearing on 13 December 2011 did not provide procedural fairness to Ms Lindenberg and the member did not follow the rules of natural justice.
An order was made on 19 December 2011 to remit the matter for hearing and the matter was relisted for rehearing on 9 January 2012.
On 9 January 2012 Ms Lindenberg appeared in relation to her claim of 1073-11 but Kalwun Corporation did not appear. An order was made to consolidate claims 1073-11 filed by Ms Lindenberg with claim 1085-11 filed by Kalwun and that both claims were to be listed and heard together. An order was made that the date for hearing would be advised to the parties, after 27 February 2012.
On 27 February 2012 the parties appeared and an oral application was made by Kalwun to be legally represented. Oral submissions were made by both parties relating to the application. When considering applications for leave to be represented the QCAT Act states that the main purpose is to have parties represent themselves unless the interest of justice requires otherwise. Section 43 states:
43 Representation
(1) The main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise.
(2) In a proceeding, a party:
(a) may appear without representation; or
(b) may be represented by someone else if:
(i) the party is a child or a person with impaired capacity; or
(ii) the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person; or
(iii) an enabling Act that is an Act, or the rules, states the person may be represented; or
(iv) the party has been given leave by the tribunal to be represented.(3) In deciding whether to give a party leave to be represented in a proceeding, the tribunal may consider the following as circumstances supporting the giving of the leave:
(a) the party is a State agency;
(b) the proceeding is likely to involve complex questions of fact or law;
(c) another party to the proceeding is represented in the proceeding;
(d) all of the parties have agreed to the party being represented in the proceeding.(4) A party can not be represented in a proceeding by a person:
(a) who, under rules made under section 224(3), is disqualified from being a representative of a party to a proceeding; or
(b) who is not an Australian legal practitioner or government legal officer, unless the tribunal is satisfied the person is an appropriate person to represent the party.(5) A person who is not an Australian legal practitioner or government legal officer and who is seeking to represent a party in a proceeding must give the tribunal a certificate of authority from the party for the representation if:
(a) the party is a corporation; or
(b) the tribunal has asked for the certificate.(6) The tribunal may appoint a person to represent an unrepresented party.
(7) In this section:
Australian legal practitioner see the Legal Profession Act 2007.
government legal officer see the Legal Profession Act 2007
Ms Lindenberg objected to Kalwun being legally represented and stated that she could not afford legal representation herself, that she had turned up and was prepared to give evidence and that it would be unfair if leave for legal representation was granted to Kalwun. After considering the parties’ submissions it was determined that it was not in the interests of justice for Kalwun to be legally represented, as the requirements of section 43(3) had not been made out to support such application. That is, Kalwun was not a state agency, the issues in dispute did not involve complex questions of fact or law, Ms Lindenberg was not represented and she did not agree to Kalwun being legally represented in the proceedings. On that basis the application for leave was refused. Ms Edwards who appeared for Kalwun then sought an adjournment as she stated that she was not properly prepared for the hearing as she had intended on relying on the legal representation that Kalwun had arranged and who appeared with her at this hearing. Orders and directions were made that:
1.The claim is listed for hearing on 12 April 2012 at 11am.
2.That both parties must file and serve all material and evidence they intend on relying upon by 4 April 2012.
At the commencement of the hearing on 12 April 2012 Kalwun had prepared submissions and made oral application “that Adjudicator Trueman should excuse herself from any further hearing of any applications involving the parties on the basis of apprehended bias”. It was raised at the hearing that if such application was pursued, and the application determined that Ms Trueman excused herself, that the matter would require a further adjournment. Kalwun then withdrew their application and consented for Adjudicator Trueman to hear the matter and withdrew their claim of “apprehended bias”. The hearing proceeded on the basis that Kalwun did not want to pursue their oral application to have Adjudicator Trueman removed from hearing the matter. At the conclusion of the hearing the decision was reserved with further orders and directions being made that:
1THAT the Applicant Ms Therese Lindenberg must file evidence from Martin Armstrong and proof that the payments made by him were for rental payments for the benefit of Ms Lindenberg within seven (7) days and provide a copy to the Respondent Kalwun Corporation.
2THAT the Respondent be at liberty to file a Response to the evidence referred to in order 2 herein within seven (7) days of being served.
Both parties have filed further evidence pursuant to the orders made on 12/4/2012 and that evidence has been taken into account in so far as it is relevant.
Applicant’s Case
Ms Lindenberg claims that when Kalwun issued her with the Form 11 Notice to remedy breach for rent arrears on 3 October 2011 alleging that she had only paid rent up til 25/9/2011 owing 24 days rent she said that they knew her rent was paid and that the Notice was defective. She said that she always paid her rent on time and had the receipts to prove it. She said she sometimes paid it in various amounts and that she had had difficulties in getting to the bank to pay on a couple of occasions so had given the cash to her partner, Mr Martin Armstrong who had made payments via the internet on her behalf. She said that when she received the Notice to leave she tried to contact Ms Edwards but was unsuccessful and she said that she has had recent health problems. She stated that when she received the Form 12 Notice to leave issued on 8/11/2011 for her to leave by 28/11/2011 she again contacted Kalwun. She said that she thought the Notices were wrong as the Form 12 Notice to leave claimed she owed $1,250 in rent arrears which she said was not correct.
Ms Lindenberg said she believed that the ongoing process of Kalwun issuing and serving Notices to leave on her is still part of ongoing retaliatory actions and harassment against her and she said that she feels like Kalwun will never give up on trying to get her evicted. She said that their conduct towards her was affecting her health and that she cannot cope in dealing with them.
Ms Lindenberg filed with the tribunal evidence relating to her claim. She also provided evidence in a bundle of documents that related to the other claims she has had in 2006, 2010 and 2011 against Kalwun that were not relevant to this case. That evidence was not taken into account but clearly show a history of an unfortunate dispute and a breakdown of the relationship between the parties.
Ms Lindenberg said she always paid her rent on time and when served with the Form 12 Notice to leave did not leave as she knew that the Form 11 Notice to remedy breach was incorrect. She said that she believed that her rent was paid up to date. She said that as soon as she received the Form 12 Notice to leave she prepared and filed her application to have the Notice to leave set aside.
Ms Lindenberg claims that Kalwun did not telephone her in October 2011 to talk to her about the unmarked payments. She said that she never received any of the letters allegedly sent to her by Kalwun relating to rent arrears and Ms Edwards only contacted her by telephone and asked her to “come into the office” and she said she never went in because she “feel(s) intimidated when I go in there”. Ms Lindenberg stated that if she was informed initially when Kalwun contacted her that her rent arrears were due to some unmarked payments that were referenced “Martin Armstrong” that she would have sorted the problems out and “we wouldn’t have had any of this problem”.
Respondent’s Case
Ms Edwards provided to the tribunal an authority[iii] signed by the Chairperson, Denise Lewis, of the Board of the Kalwun Development Corporation providing authority for Ms Edwards to act on behalf of the Company.
Ms Edwards provided submissions[iv] prepared and dated 12 April 2012 to support her application that Ms Trueman should “excuse herself from hearing any matters involving the parties due to appearance of bias or on the basis of apprehended bias”. As noted this application was not required to be considered as the application was withdrawn and the hearing of the consolidated claims proceeded. The submissions further stated that the orders that were sought were that the Application filed by Ms Lindenberg be dismissed and that the Termination order be made and that a Warrant of Possession issue to provide Kalwun vacant possession of the property at 72 Rivergum Drive, Nerang.
Ms Edwards provided to the tribunal evidence of various documents that were presented in a bundle.[v] The included copies of the customer ledger, statements from Kalwun called “Card transactions [Accrual]” and bank statements from the National Australia Bank for Kalwun including transactions reports and copies of emails exchanged between the parties.
Ms Edwards stated that she prepared and issued the Form 11 Notice to remedy breach dated 3 October 2011. She said that she posted the Notice to Ms Lindenberg in the mail. She said that after posting the Form 11 Notice to remedy breach she did not contact Ms Lindenberg. She said at that time Ms Lindenberg was behind in her rent some 24 days and was required to pay the sum of $900.00 to remedy the breach. She said that there were monies unaccounted for in Kalwun’s bank account that had not been allocated. She stated that she was not sure who the money belonged to or who had paid it and that she was not sure if it was rental money for Ms Lindenberg or not. She stated that the payments were noted with a name of “Martin Armstrong” but she was not sure what that meant.
It was put to Ms Edwards that she knew who Martin Armstrong was. She denied knowing Martin Armstrong. She said that Martin Armstrong had made payments to Kalwun of $1,125.00. The statements that were provided to the tribunal suggest payments made by Martin Armstrong of the following:
a) $250.00 on the 14/10/2011
b) $250.00 on the 7/10/2011
c) $250.00 on the 30/9/2011
d) $125.00 on the 19/9/2011
e) $250.00 on the 9/9/2011
f) $500.00 on the 5/9/2011
TOTAL $1,595.00
Ms Edwards stated that she “did not know who Martin Armstrong was”, she said she had “never formally met Martin Armstrong” and said “I’m assuming its Therese’s partner who is not on the lease”. When it was put to her that she was present at a previous hearing where Ms Lindenberg was in fact represented by Mr Martin Armstrong, she stated, “Yes I was but didn’t take notice of his name, “I’ve never met him.” It was then put to her that she knew the name Martin Armstrong, and she stated “No I don’t”.
.
When it was put to her that Ms Edwards did know the name Martin Armstrong she stated that “No, I don’t, I’m familiar with it but I don’t know it”. Ms Edwards was required to clarify what she meant by not being familiar with a name and what that meant, she was asked “do you know the name”, she responded “I don’t know him and I don’t know the name; it’s as simple as that”.
Ms Edwards further stated she could not “remember his name (Mr Martin Armstrong’s) from the previous case.” She said she “assumed he was Ms Lindenberg’s partner” and “so that’s what I’m saying”.
Ms Edwards stated that the amounts paid by Martin Armstrong were sitting in an offset account and had not been allocated to Ms Lindenberg’s tenant ledger. She said she made many attempts to contact Ms Lindenberg to clarify the rental payments but that Ms Lindenberg either refused to contact her or did not respond to emails and phone calls about the rent payments. Ms Edwards stated she emailed Ms Lindenberg about the rent arrears, phoned her mobile and had not been able to make contact. She said Ms Lindenberg ignored her emails or claimed she never got them.
Ms Edwards said she was not sure who had paid the rental payments so she was required to contact all tenants to see if any payments belonged to them. She stated that she sent letters initially out to all the tenants advising that Kalwun had received unmarked deposits. She also stated that she then telephoned all tenants relating to the same payments. She said “it took me a couple of weeks actually to figure what was going on and I phoned every tenant”. She alleged that is what she did in fact and she said “I had to sit there and phone every tenant and I think Therese was about 30 on the list”.
Ms Edwards stated that she emailed Ms Lindenberg on many occasions requesting her to pay her rental arrears. She said there was a phone call in October where she did speak to Ms Lindenberg about the rental arrears and unmarked payments and was told that the payments were Ms Lindenberg’s and that Ms Edwards requested that Ms Lindenberg come into the office to discuss and prove the payments. She said after two weeks Ms Lindenberg still had not come into the office. She said she sent an email[vi] on 5 October 2011 in relation to the banking deposits and she said that email was never responded to by Ms Lindenberg. She stated she then sent another email[vii] dated 25 October 2011 referring to the unmarked deposits. The email indicates that Ms Lindenberg did respond to her email on 22/11/2011 in relation to the unmarked deposits.
Ms Edwards gave evidence that she not know that the rental payments he made were on behalf of Ms Lindenberg. Ms Edwards she said she was not sure who Mr Armstrong was and could not presume the payments were for Ms Lindenberg. When challenged on this point she said that she did not know a Mr Martin Armstrong and could not allocate those monies for Ms Lindenberg’s rent without Mr Martin Armstrong’s permission or consent. She said that she had not allocated those funds but that they were held in a holding account. When questioned about payments made by Martin Armstrong and whether there was a tenant called Martin Armstrong who was renting one of the other (Kalwun) properties Ms Edwards stated “No”.
Ms Edwards stated that as Ms Lindenberg had not contacted her still for some 5 months after the first email was sent to Ms Lindenberg requesting further information relating to the rent payments she had no alternative but to issue the Form 11 and Form 12 Notices and pursue the application for termination and warrant of possession.
Ms Lindenberg stated in response to the evidence of Ms Edwards that she did not receive the email of 5 October 2011 but that she did receive the email of 25 October 2011 relating to the unmarked deposits. She said she emailed Ms Edwards on 22 November after she had been served with the Form 12 Notice to leave. The email states that Ms Lindenberg was “distressed to receive a Form 12 from you as we had recently discussed by phone I am waiting to receive the receipts for 2 payments”. The email further states that it is very difficult for her to be contacted by email as “I do not have the Internet and I do not have a vehicle.” The email refers to two telephone calls discussing the matter and Ms Lindenberg’s illness that rendered her “unable to leave the house at this point in time”.
Ms Lindenberg filed further evidence pursuant to order 1 made on 12/4/2012 which included a Statutory Declaration of Mr Martin Armstrong that was declared on 19/4/2012. The evidence of Mr Armstrong is that he made rental payments on behalf of Ms Lindenberg paid to Kalwun between the dates of 3 September and 19 September 2011 with total funds amounting to $2,525.00. He stated that he knows Ms Edwards and she know him as he claims to have “held many conversations with Miss Edwards including phone calls on Mrs Lindenberg’s behalf, has been present during property inspections at 72 Rivergum Drive, and have spoken at Kalwun’s office many times.” He also stated that Ms Edwards would know him as he “represented Mrs Lindenberg on 10 August.” He claims to have made payment to Ms Lindenberg’s account and explains he referred payments with his name but stating that it was his “understanding at the time was that all rental accounts were separate”. Annexed to his Statutory Declaration was Net Bank transaction receipts from the Commonwealth Bank and evidence of payments that he made on behalf of Ms Lindenberg that include:
a) 3/9/2011 $500.00
b) 8/9/2011 $250.00
c) 17/9/2011 $125.00
d) 29/9/2011 $250.00
e) 7/10/2011 $250.00
f) 14/10/2011 $250.00
g) 21/10/2011 $200.00
h) 29/10/2011 $200.00
i) 11/11/2011 $250.00
j) 19/11/2011 $250.00
TOTAL $2,525.00
Mr Armstrong’s evidence suggests that he has made some payments to Ms Lindenberg’s rent that have been accepted and transferred to her tenant ledger. The amount in dispute not accepted by Kalwun appears to be only part of the total payments he has made, and that is the sum of $1,125.00.
Ms Edwards filed further evidence pursuant to Order 3 made on 12/4/2012 and those submissions have been taken into account. The submissions state that Ms Lindenberg has failed to make rental payments and the receipts provided by Mr Armstrong do not evidence that all payments were to be paid on behalf of Ms Lindenberg. Kalwun submits that such failure to properly identify payments has rendered it impossible for Kalwun to reconcile their accounts and that at the time that the Form 11 was served Ms Lindenberg was behind in her rent payments.
Summary of Evidence and Findings
I have not taken into account any evidence that was filed by the parties pursuant to the order made on 12/4/2012 that is irrelevant.
Ms Edwards concedes that she thought the unmarked payments of Mr Martin Armstrong were payments made on behalf of Ms Lindenberg. It is also conceded by Ms Edwards that she knew that Ms Lindenberg had ill health and that Ms Lindenberg told Ms Edwards on the phone that the payments were hers. It is not disputed that Ms Lindenberg was attempting to gain copies of receipts to prove such payments when the Form 12 Notice to leave was issued. That evidence is confirmed in email communications exchanged between the parties.
The most disturbing evidence during the hearing was the sworn evidence of Ms Edwards that she “did not know Mr Martin Armstrong and had never formally met him”. Most unbelievable was her evidence that she did not “know the name of Martin Armstrong”. Her evidence was inconsistent and she was often confused when giving evidence relating to this point. She was directly questioned, “Well you know who he (Martin Armstrong) is, don’t you? She responded No, I’ve never formally met him”. I’m assuming its Therese’s partner who’s not on the lease”. She said that she did not know who he was yet can then correctly assume he is Ms Lindenberg’s partner. Ms Edward’s evidence on this point was contradicted in her evidence at the earlier hearing on 13/12/2011 where she stated that she spoke to Ms Lindenberg on 24 October who confirmed the payments were hers and she would bring in the receipts to prove it.[viii] She then states further in her evidence that when she phoned Ms Lindenberg on the 24th of October she did not answer the phone and finally spoke to her on the 2 November 2011.[ix] Ms Edwards stated she did not recall if Mr Armstrong was at a prior hearing or not and that she didn’t take any notice of the name of the person with Ms Lindenberg at that hearing. She said that she did not know Martin Armstrong.
Ms Edwards confirmed that she served the Form 11 Notice on Ms Lindenberg by mailing it to her.
Ms Edwards further contradicts her evidence when she stated at the hearing on 13/12/2011 that when she started to receive “these are odd amounts and it wasn’t until I’d spoken to Therese that she confirmed her partner was Martin Armstrong who, mind you, isn’t on the lease, who, mind you, I don’t know as her partner. We’ve got 48 houses and units and 140 people living in those houses and units, it’s hard to keep track of everyone.”[x] At the prior hearing Ms Edwards concedes that Ms Lindenberg told her that Mr Martin Armstrong was her partner yet she continues to refuse to acknowledge that she knew this fact at the hearing on 12 April 2011.
I accept the evidence of Mr Martin Armstrong in that he has met with Ms Edwards personally, at routine house inspections and in the office of Kalwun. I accept he was present at a hearing lasting some hours in 2011 whereby he represented Ms Lindenberg and where Ms Edwards was present at that same hearing representing Kalwun. I find it inconceivable that Ms Edwards would forget what occurred at that hearing in August 2011 and that Mr Armstrong was present, represented Ms Lindenberg and gave evidence that he was Ms Lindenberg’s partner.
I do not accept the evidence of Ms Edwards and find her refusal to acknowledge her knowing Mr Armstrong or even knowing the name is an untruth and evidence that she has given to support her contention that the unpaid rental monies paid by Mr Armstrong were unmarked and that she could not take them into account for Ms Lindenberg and therefore would give her an entitlement to issue a Form 11 Notice to remedy breach. I find that Ms Edwards had selectively chosen to ignore the fact that she has met Mr Armstrong at another hearing in QCAT on 10 August 2011 and that the subsequent reading of the decision delivered on 27 October 2011 would remind Ms Edwards that in fact Mr Armstrong represented Ms Lindenberg at that hearing. I prefer the evidence of Ms Lindenberg and Mr Armstrong to the evidence of Ms Edwards and find that Ms Edwards had not been entirely truthful when giving her evidence surrounding the circumstances of the unmarked deposits. I find that she was well aware that the rent payments would have been more likely than not to be paid by Mr Armstrong on behalf of Ms Lindenberg. Ms Edwards conceded that there is no other tenant renting property at Kalwun with the name Martin Armstrong and in all the circumstances it would be obvious to presume such payments were to be for Ms Lindenberg. I find that Ms Edwards chose to ignore that likelihood and instead relied upon the fact of not setting the unmarked payments off against Ms Lindenberg’s tenancy ledger which resulted in rental arrears. On this fact Ms Edwards then sought to issue Notices to remedy breach and Notice to leave in another back handed attempt to evict Ms Lindenberg from her home.
I find it difficult to accept the evidence of Ms Edwards that she sent letters and telephoned every tenant enquiring about the unmarked deposits. It would be impossible to accept that she did this knowing that she presumed Martin Armstrong was Ms Lindenberg’s partner, and that it would have been likely or probable the payments he made were on her behalf. When Ms Edwards was asked to produce copies of such letters she allegedly sent to the Kalwun tenants about the unmarked deposits she stated she did not have any of the letters with her.
Ms Edwards' evidence that the unmarked payments made by Mr Armstrong were the only payments not transferred to Ms Lindenberg’s tenant ledger was inconsistent with the actual evidence produced. Ms Edwards did not provide any evidence in response or contest the evidence of Mr Armstrong that in fact he had made rental payments on behalf of Ms Lindenberg in the total sum of $2,525.00 but that only the sum of $1,595.00 were held in the Kalwun offset account awaiting to be transferred to a tenant ledger. From the evidence it appears that a sum of approximately $930 paid by Mr Armstrong for Ms Lindenberg’s rent had been transferred to her tenant ledger account.
The evidence supports a finding that Mr Armstrong did made rental payments on behalf of Ms Lindenberg and that the sum of $1,595.00 held in the Kalwun off set account were rental monies for Ms Lindenberg. I find that when the Form 11 Notice to remedy breach issued relating to rental arrears, that in fact Ms Lindenberg did not owe any rental arrears. I find that the Form 11 Notice to remedy breach issued for rental arrears in the sum of $900.00, taking into account the rental monies paid by Mr Armstrong for Ms Lindenberg in the sum of $1,595.00, that there would have been no rental arrears at all and in fact rent was paid up and in advance at the time the Form 11 Notice was issued.
It is clear that the termination order and warrant of possession should never have been issued at the hearing on 13/12/2011 as the Form 11 Notice to remedy breach relating to rental arrears was defective on two grounds. Firstly, the Notice is defective in that it was issued on the 3/10/2011 giving the tenant notice to remedy the rental arrears breach by 11/10/2011. The Notice gives 8 days to remedy the breach. The evidence of Ms Edwards at the hearing on 13/12/2011 was that she was questioned by the member as to how the Notice was served and she stated “By mail”.[xi] This was also her evidence at the hearing on 12/4/2012. A form 11 Notice to remedy breach must comply with the strict requirements of the Act. The relevant provision is section 280 of the Act relating to Notice to remedy breach given by the Lessor, it states:
280 Notice to remedy tenant's breach
(1) This section applies if the lessor believes on reasonable grounds that:
(a) the rent payable under the agreement has remained unpaid in breach of the agreement for at least 7 days; or
(b) the tenant has breached another term of the agreement and the breach has not been remedied.(2) The lessor may give a notice to the tenant requiring the tenant to remedy the breach within the allowed remedy period.
(3) This section does not apply to an agreement for a short tenancy (moveable dwelling).
Editor's notes:
See section 325 (Notice to remedy breach) for requirements for the notice.
See section 328 (Allowed remedy period) and schedule 2 (Dictionary), definition allowed remedy period.
Section 328 provides that the requisite Notice for the allowed remedy period must not be less than 7 days after the Notice have been given. The sections states:
328 Allowed remedy period
(1) The allowed remedy period for a notice to remedy breach must not end earlier than 7 days after the notice is given.
(2) However, if the notice is given about a breach of the term of the agreement for payment of rent and the agreement is an agreement for a long tenancy (moveable dwelling), the allowed remedy period for the notice must not end earlier than 5 days after the notice is given.
The Residential Tenancies Rooming and Accommodation Regulation 2009 provide at Schedule 1 the provisions relating to Notices. The relevant Regulation 44 provides:
44 Notices
(1) A notice under this agreement must be written and, if there is an approved form for the notice, in the approved form.
Note--
See the information statement for a list of the approved forms.(2) A notice from the tenant to the lessor may be given to the lessor's agent.
(3) A notice may be given to a party to this agreement or the lessor's agent--
(a) by giving it to the party or agent personally; or
(b) if an address for service for the party or agent is stated in this agreement for item 1, 2 or 3--by leaving it at the address, sending it by prepaid post as a letter to the address; or
(c) if a facsimile number for the party or agent is stated in this agreement for item 1, 2 or 3 and item 4 indicates that a notice may be given by facsimile--by sending it by facsimile to the facsimile number in accordance with the Electronic Transactions (Queensland) Act 2001; or
(d) if an email address for the party or agent is stated in this agreement for item 1, 2 or 3 and item 4 indicates that a notice may be given by email--by sending it electronically to the email address in accordance with the Electronic Transactions (Queensland) Act 2001.(4) A party or the lessor's agent may withdraw his or her consent to notices being given to them by facsimile or email only by giving notice to each other party that notices are no longer to be given to the party or agent by facsimile or email.
(5) If no address for service is stated in this agreement for item 2 for the tenant, the tenant's address for service is taken to be the address of the premises.
(6) A party or the lessor's agent may change his or her address for service, facsimile number or email address only by giving notice to each other party of a new address for service, facsimile number or email address.
(7) On the giving of a notice of a new address for service, facsimile number or email address for a party or the lessor's agent, the address for service, facsimile number or email address stated in the notice is taken to be the party's or agent's address for service, facsimile number or email address stated in this agreement for item 1, 2 or 3.
(8) Unless the contrary is proved--
(a) a notice left at an address for service is taken to have been received by the party to whom the address relates when the notice was left at the address; and
(b) a notice sent by post is taken to have been received by the person to whom it was addressed when it would have been delivered in the ordinary course of post; and
(c) a notice sent by facsimile is taken to have been received at the place where the facsimile was sent when the sender's facsimile machine produces a transmission report indicating all pages of the notice have been successfully sent; and
(d) a notice sent by email is taken to have been received by the recipient when the email enters the recipient's email server.
Regulation 44 (8) provides that unless the contrary is proved that a Notice served on a tenant by mail that its considered to be received by the person to be delivered in the ordinary course of post and therefore the relevant time frame in the Notice to remedy the breach must be given in that Notice. In this case in the ordinary course of post a tenant must be given an additional 2 days to allow the Notice to be received by the tenant and that time frame to allow the tenant to remedy the breach must be provided for in the Notice. In this case the Form 11 Notice was defective as it provided 8 days notice to the tenant when a minimum of 9 days should have been given to the tenant. Given the fact that Ms Lindenberg was not served with a Notice that allowed her the requisite time frame to remedy the breach that Notice is defective and must be set aside. However, I note that even if the Notice had given the requisite 9 days notice the Notice would have still been defective. The second reason that the Notice to remedy breach was defective is due to the fact that I am satisfied that Ms Lindenberg had paid, or arranged to have paid, all her rental monies that were due and owing. I find that the monies paid by Mr Armstrong were made on behalf of Ms Lindenberg and that Ms Edwards would have known that. I find that even if Ms Edwards stated she issued the Form 11 Notice to remedy breach believing that the rental payment made by Mr Armstrong were not made on behalf of Ms Lindenberg that upon evidence to prove the contrary, by her own admission, she conceded that the Form 11 would be defective if it was proven such unmarked rental payments were made for Ms Lindenberg. As such Ms Edwards’ submissions that the Form 11 Notice to remedy breach for rental arrears should stand as Ms Lindenberg “failed to keep her rental payments current” is unfounded and untrue. Ms Lindenberg did keep her rent paid and up to date and Kalwun’s request for a termination order and a warrant must be refused.
I find that Ms Lindenberg was not in rental arrears at the time the Form 11 Notice dated 3/10/2011 was issued in any event. That being my finding that the Form 11 is defective, the Form 12 Notice to leave is also defective and must be set aside.
I find that the ongoing actions of Kalwun towards Ms Lindenberg to evict her from her home, deplorable in the extreme. This decision should serve a timely reminder to Kalwun and its obligations when considering bringing any application under the Residential Tenancies and Rooming Accommodation Act 2008 to evict a tenant, that they must be mindful of section 422. The relevant subsections are sections 422(2) and (5). That section states:
422 Application of Aboriginal tradition
(1) This section applies if-
(a) the lessor is-
(i) an indigenous local government, including an indigenous regional council, under the Local Government Act 2009 or
(ii) Aurukun Shire Council; or
(iii) Mornington Shire Council; or
(iv) an entity prescribed under a regulation; and
(b) the tenant is an Aborigine.(2) In deciding an application for a termination order, a tribunal must have regard to the lessor's practice (the lessor's Aboriginal tradition practice) in observing Aboriginal tradition in dealing with similar breaches of other residential tenancy agreements by other tenants of the lessor.
(3) In considering Aboriginal tradition, the tribunal may hear evidence from, and the opinions of:
(a) persons recognised under Aboriginal tradition as respected persons; or
(b) other persons with special knowledge of, or expertise in, Aboriginal tradition.(4) The opinion of persons mentioned in subsection (3) are not inadmissible as evidence merely because they are hearsay.
(5) The tribunal may decide not to make the termination order if it would be inconsistent with the lessor's Aboriginal tradition practice.
Kalwun have in this case and past cases, failed to consider their obligations to treat Ms Lindenberg with the same respect and treatment as other residential tenants of the lessor. Ms Lindenberg is entitled to be treated the same as other tenants when being dealt with relating to breaches (alleged or otherwise) of her residential tenancy agreement and that she is entitled to be treated the same as Kalwun would treat other tenants of the lessor for the same breaches. This tribunal may not decide not to make any termination order if it would be inconsistent with the lessor’s Aboriginal tradition practice.
I find for the reasons I have given I make the following orders which will give effect to the decisions I have made and order as follows.
ORDERS
THAT in relation to claim 1073-11 the Form 12 Notice to leave issued on 28/11/2011 is set aside.
That claim 1085-11 is dismissed.
[i] Section 28(2).
[ii] Section 28(3)(a).
[iii] Exhibit 1.
[iv] Exhibit 2.
[v] Exhibit 3.
[vi] Exhibit 5.
[vii] Exhibit 1.
[viii] Page 4 Transcript 13/12/2011.
[ix] Page 4 Transcript 13/12/2011.
[x] Page 5 Transcript 13/12/2011.
[xi] Page 4 transcript 13/12/2011.
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