Lindenberg v Kalwun Development Corporation Limited (No 2)
[2011] QCAT 535
•27 October 2011
| CITATION: | Lindenberg v Kalwun Development Corporation Limited (No 2) [2011] QCAT 535 |
| PARTIES: | Therese Harrison Lindenberg (Applicant) |
| v | |
| Kalwun Development Corporation Limited (Respondent) |
| APPLICATION NUMBER: | MCDT724-11 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 10 August 2011 |
| HEARD AT: | Southport |
| DECISION OF: | Christine Trueman, Adjudicator |
| DELIVERED ON: | 27 October 2011 |
| DELIVERED AT: | Southport |
ORDERS MADE: | That the Form 12 Notice to Leave issued by the respondent on 8 June 2011 be set aside. |
| CATCHWORDS: | RESIDENTIAL TENANCIES – TERMINATION – NOTICE TO LEAVE – RETALIATORY – Where Respondent issued the Applicant with a Notice to Leave without grounds – where the Applicant applied to have the Notice set aside as retaliatory – where the 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 – whether tenant subject to bullying and harassment by Respondent Queensland Civil and Administrative Tribunal Act 2009, s 12 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANTS: | Ms Therese Harrison Lindenberg represented by Mr Martin Armstrong |
| RESPONDENTS: | Kalwun Development Corporation Limited represented by Ms Billie Edwards |
REASONS FOR DECISION
Ms Lindenberg is a tenant of the property at 72 Rivergum Drive, Nerang in Queensland. Kalwun Development Corporation Ltd (“the Corporation”) 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. Around 8 June 2011 Ms Lindenberg was served with a Notice to Leave without grounds requiring her to leave the property by 8 August 2011.
Ms Lindenberg filed her application for Minor civil dispute – residential tenancy dispute on 17 June 2011 at Coolangatta seeking an order from the tribunal pursuant to s 292 to set aside the Notice to Leave without grounds. The claim was listed for hearing on 19 July 2011 in Coolangatta before a Member of this tribunal and an order was made to transfer the matter to the Southport registry adjourning the claim for hearing to the next available date. The matter proceeded to hearing on 10 August 2011. An order was made that leave was granted to the Applicant to be represented by Mr Martin Armstrong. At the conclusion of the hearing the decision was reserved.
The Application by Ms Lindenberg asserts that the Respondent’s Notice to Leave was ‘retaliatory’ and, therefore, offended s 291(3) of the Residential Tenancies and Rooming Accommodation Act 2008 (“the Act”). It is appropriate to set out s 291 and s 292:
291 Notice to leave without ground
(1) The lessor may give a notice to leave the premises to the tenant without stating a ground for the notice.
(2) However, the lessor must not give a notice to leave under this section because--
(a) the tenant has applied, or is proposing to apply, to a tribunal for an order under this Act; or
(b) the tenant--
(i) has complained to a government entity about an act or omission of the lessor adversely affecting the tenant; or
(ii) has taken some other action to enforce the tenant's rights; or
(c) an order of a tribunal is in force in relation to the lessor and tenant.(3) Also, the lessor may not give a notice to leave under this section if the giving of the notice constitutes taking retaliatory action against the tenant.
(4) A notice to leave under this section is called a notice to leave without ground.
Editor's note--
See sections 329(2)(j) (Handover day for notice to leave for premises that are not moveable dwelling premises) and 330(2)(l) (Handover day for notice to leave for moveable dwelling premises) for requirements about the handover day for a notice to leave given without ground for a periodic agreement.292 Application to tribunal about notice to leave without ground
(1) This section applies if--
(a) the tenant is given a notice to leave without ground; and
(b) the tenant reasonably believes the notice was given in contravention of section 291.(2) The tenant may apply to a tribunal for an order to set aside the notice.
(3) The application must be made within 4 weeks after the notice was given.
(4) On an application under this section, the tribunal may make the order sought if it is satisfied the notice was given in contravention of section 291.
The application complies with section 292(3) in that the application has been filed within four weeks from the date that the notice was given.
The tribunal has jurisdiction under the Queensland Civil and Administrative Tribunal Act 2009 to hear the matter (“the QCAT Act”) pursuant to section s 12(4)(f). That section provides that this tribunal can hear and determine an application made by a tenant or lessor relating to a tenancy dispute under the Act.
Ms Lindenberg had attached to her application a copy of a previous decision of this tribunal delivered on 19 May 2011 relating to the same application she made to set aside a Notice to Leave without Grounds. The decision is Lindenberg v Kalwun Development Corporation Ltd [2011] QCAT 287 (19 May 2011). In that decision it was found:
“that in all the circumstances, taking into account all of the evidence provided to the tribunal by the parties and witnesses, both oral evidence and exhibits, I am satisfied that the Corporation has proven that animosity exists between the parties. The allegation by the tenant that she has been bullied and harassed by the Corporation appears to have some merit. Ms Lindenberg claims that the Corporation has embarked on a course of conduct to have her removed from the property without cause and that she has been victimised. This application to set aside a Notice to Leave without Grounds, and the previous Notice in 2006, appears to support such an allegation.”
This current application is for the same issue. The Respondent Corporation has served on Ms Lindenberg another Form 11 Notice to Leave without Grounds less than three (3) weeks after the previous decision was handed down.
Ms Lindenberg alleges that the Respondent Corporation continues to engage in the same conduct by issuing Notices to Leave without grounds to have her removed from her home without cause or explanation.
Ms Lindenberg has now been subjected to three Notices to leave without Grounds. The first two were set aside. The evidence at this hearing was not dissimilar to the evidence at the last hearing in February 2011 and to which the decision was delivered in May this year.
EVIDENCE
The evidence that was provided to the tribunal by the Applicant was that the Form 12 Notice to Leave[i] had been preceded with a Form 11 Notice to Remedy Breach[ii]. The Applicant contends that the Form 11 Notice to Leave issued on 20 July 2011 was defective. The Notice provided that the breach must be remedied by 28 July 2011. The Applicant stated that she was not in rent arrears at all. The Notice referred to rent arrears in the sum of $650.00.
The Applicant produced to the tribunal copies of her rent receipts[iii], banking records[iv] and an Australia post receipt[v] proving that the amount of rent arrears calculated by the Respondent was not accurate.
The Applicant stated that her rent was always paid up two weeks in advance and she knew that the Form 11 Notice to Remedy Breach was not correct.
The Applicant gave evidence that she was then served with a Form 12 Notice to Leave[vi] issued on 29 July 2011. This Notice was issued With Grounds and stated: “Failure to pay rental arrears as per form 11 sent 20/7/2011. Rental arrears to date – $1150.00”
The Applicant gave evidence that the Form 12 did not also reflect her rental payments at the time. She stated that at no time was she ever provided with a tenant ledger and that she found it difficult to reconcile the amount of rent paid against the allegations raised by the Respondent and her rent arrears.
The Applicant gave evidence that she contacted the Respondent to dispute the Form 11 Notice to Remedy Breach and Form 12 Notice to Leave relating to the rent arrears and it was discovered that a payment of $500.00 deposited through a transfer from the ANZ bank on 12 and 13 April 2011 had not been credited to her account. The transfer receipts were produced to the tribunal.[vii]
Ms Lindenberg stated that she had applied for membership again but that her membership application had been refused. She alleges that the latest Notice to Leave Without Grounds was retaliatory and that she was so affected by the conduct towards her by the Respondent Corporation that she found it difficult to represent herself, could not give evidence properly due to the fact she was deeply stressed and anxious, felt intimidated and as a result leave was granted for her to be represented at the hearing. She was teary and stated she felt victimised and bullied and could not bring herself to attend meetings when Board members were present. Ms Lindenberg appeared to be frightened and intimidated by the Board members who attended the hearing to give evidence.
The Respondent’s Case
The Respondent Corporation was represented by Ms Edwards. She alleged that since the last hearing that Ms Lindenberg “had not attended a community day event and that the rules of the corporation was that the strong community cohesiveness was supported by having financial members.”
Ms Edwards stated that Ms Lindenberg had applied for membership in May 2011 but it had been refused due to the fact she did not attend special meetings and did not support the Corporation.
Ms Edwards alleged that Ms Lindenberg did not support their volunteering program and that volunteer work was a component and requirement of the Kalwun Constitution. Further, that she did not attend meetings and that she had changed her contact details and had not advised Ms Edwards of this and therefore making contact with her had become impossible. Ms Edwards gave evidence that she wrote a letter[viii] to Ms Lindenberg in May 2011 due to her failed attempts at trying to call her about the rent arrears.
Ms Edwards conceded that the Form 11 Notice to Remedy Breach regarding rental arrears and the ensuing Form 12 Notice to Leave due to failure to remedy the breach were both defective. Ms Lindenberg did not owe any rent arrears at all when the Form 11 Notice had been issued.
Ms Edwards gave evidence that the Form 12 Notice to Leave was not retaliatory. She said that she issued the Form 12 Notice to Leave as directed by the Board. She stated that she had issued other Form 12 Notices to other tenants for reasons that included “failure by a tenant to sign a lease.”
Ms Edwards stated that Ms Lindenberg had been requested to sign a new lease but had refused to do so. Ms Edwards alleged that the “Board directed tenants to sign new leases as changes had been made to lease agreements.”
Ms Edwards stated that as Ms Lindenberg was “not a financial member she was not worthy” of affordable Kalwun housing. It is not disputed that Ms Lindenberg was granted membership in 2006 but due to the fact she did not pay the membership fees her membership was cancelled and the Corporation would not consider in the future ever approving any further application for membership.
WITNESSES EVIDENCE
EVIDENCE OF MR WILLIAM OUI
Mr Oui stated that he is a Board of Director at Kalwun Corporation. He gave evidence that Ms Lindenberg, to his knowledge, did not qualify for membership for housing as she did not support the Kalwun Corporation. He said that it had been strongly suggested to the tenant that she must support Kalwun.
Mr Oui contended that the issue of Ms Lindenberg being a non member had been pursued with her for the last 3 years. He said that in recent times that two tenants had recently been declined membership but that there had not been many in the last 17 years of so. He stated that 30 families of tenants supported the organisation and that Ms Lindenberg did not. He said that the Board were transparent to Members and that the Board required a commitment from tenants and members.
Mr Oui was questioned about what “commitment” meant to the Board. He said that in his view there were other things that were of concern to him about Ms Lindenberg. He said it was inappropriate that Elder Dillon had placed Ms Lindenberg in the house in the first place, he said that after Elder Dillon was removed from the Corporation that the Board then challenged the way that Ms Lindenberg was “approved” for housing.
When he was questioned about the fact that the Board had not approved Ms Lindenberg for membership and the reason why it was not approved he stated “I dont know.”
Mr Oui was asked about his recollection of Ms Lindenberg being sacked from her role and employment with Kalwun within the HACCA. He said she was terminated as she was not fit for the position. He said the Board were not happy when she took legal action against the Corporation and said the Board was “upset when the tenant took action…. That’s not the way we do it”.
He said it was a Board decision not to grant membership to Ms Lindenberg and not necessarily his decision. He stated that he could not explain the large gap in time between when Ms Lindenberg’s membership was approved, and her failure to pay the membership fees and the decision to cancel and refuse any further application for membership. He said that Ms Lindenberg was not entitled to live in the house as she was not a member and referred to paragraph 10(2) of Kalwun’s Articles of Association. That paragraph states:
“A member shall cease to be a member if his membership subscription is more than one month in arrears, unless such subscription is suspended or waived by special resolution of the Council.”
When it was put to Mr Oui that the paragraph he referred to did not state or support what he had said he conceded that the Board might have misinterpreted what the Articles contained and what powers they had.
When Mr Oui was asked to refer to the relevant section of the Articles that supported his position that unless a tenant was a paid up member they were not entitled to Kalwun affordable housing, he could not locate that part of the Articles.
Mr Oui, when asked, stated that no other tenant of Kalwun had been issued with a Form 12 Notice to Leave for failure to be a member or for not having paid their membership fees.
Mr Oui stated that of the 48 houses owned by Kalwun only 6 houses are occupied by Board members or their families. He said that they were all financial members and that there had not been any other tenant who’s membership had not be approved if they met the criteria in clause 4 of the Constitution. He said that some memberships had been refused but that they had related to the facts of not being either able to prove that they had “lived in the Gold Coast area for at least 2 years prior to applying of could not prove their aboriginality or that they were Torres Strait Islander”.
EVIDENCE OF MR ROBERT PASCOE
Mr Robert Pascoe gave evidence that he was a Board of Director and was the Vice President. He had been on the Board for over 25 years. He stated that he could not know why the Board had refused membership. He said he could not recall attending that particular Board meeting where it was decided that Ms Lindenberg’s membership would be refused. He said that although the Board meeting that made the decision was held on 7/2/2011 he did not recall what happened at that meeting.
Mr Pascoe gave evidence that he believed that the membership for Ms Lindenberg was not approved due to the fact that she was “not known to the Board or known in the community… she is not active”.He gave evidence that “if you are not known to the Board you will not get membership”.
Mr Pascoe stated that some of the applications made to the Board for membership were rejected. He did not know how many or for what reasons they were rejected.
Mr Pascoe was critical of Ms Lindenberg and stated that she “did not attend meetings”. Further, that she was sent a letter to come to meetings and she ignored it. He stated that a letter was sent to the tenant to attend a property management meeting scheduled for December 2010 and that Ms Lindenberg had ignored that letter.
Mr Pascoe gave evidence that he was not aware as to how the previous decision of this tribunal in May 2011 had impacted on the Board. Mr Pascoe said that he was aware that Ms Denise Lewis, the current General Manager of Kalwun was on the Board at the time that Ms Lindenberg was sacked from her job at Kalwun in 2006. He stated he was on the Board as well at that same time but did not consider that there were any issue between the Board and the tenant, Ms Lindenberg. Mr Pascoe gave evidence that in his opinion Ms Lindenberg was not entitled to housing as she was not a member and financial. He said her membership would not be accepted due to her not being known to the Board.
WITNESS EVIDENCE
I find that the evidence of the witnesses, Mr Pascoe and Mr Oui, both Members of the Board were of value in providing evidence to the tribunal as to the reasons why Ms Lindenberg’s application for membership being refused. The evidence from the witnesses provided confirmation that at least, some Board members do not understand the contents and the prescribed Articles of Association and Regulations that bind the Board of Kalwun. The evidence was that they clearly have misinterpreted or do not fully understand the meaning of their Regulations that are contained in the Articles and Memorandum of Association of the Kalwun Development Corporation Limited.[ix] The fact that the Board members were not able to identify relevant parts when questioned about the Articles and the evidence they gave in relation to their understanding of what the Articles meant were incorrect. For example Mr Oui stated that the Articles contained a provision that if a person applied for membership they would be rejected if they were not known to the Board. Clearly the Articles do not provide this as criteria for membership approval.
Further, Ms Edwards stated that the Articles were mandatory that required Kalwun Housing to only be granted to tenants that were fully paid up members and therefore had Membership with Kalwun. She referred specifically to articles 4, 5, 6 and 7. The Constitution and Articles of Association do not provide such provision and in fact there are no provisions which appear to be support the evidence of Ms Edwards. She also stated that clause 10(4) is relied upon for the termination of Ms Lindenberg’s membership. That evidence was not supported by the content of that clause.
Further, the evidence was that the Articles provided that if a member became non-financial they would not be entitled to and therefore could not rent a property under the affordable housing scheme run by Kalwun. In fact the Articles are silent on this point and there is no provision at all that is referable to membership and entitlement to be a tenant and rent affordable housing from Kalwun Corporation based on membership status alone.
FINDINGS OF RETALIATORY ACT
The Respondent Corporation complains and rationalises for the reason they issued a Form 12 Notice to Leave without grounds to Ms Lindenberg is due to the fact that she is not a member. Yet her membership is refused due to her failure to attend meetings, failure to volunteer within the Kalwun volunteer program and failure to attend Kalwun community events.
I find that the evidence provided to the tribunal though is that Ms Lindenberg is not alone in her failure to attend meetings and Kalwun events. The Respondent Corporation provided to the tribunal Minutes from a Special Directors and Tenants meeting[x] held on 30/11/2010. Those Minutes indicate that the chairperson at the meeting, Mr Peter Gulliver, noted and recorded in the Minutes that “there were usual Member/Tenants who support Kalwun by attending at least more than two events a year, also not including the AGM they attend….”.The names of the acknowledged tenants were listed. The Minutes then continue and record as follows:
“18 Tenants out of 66, this is very appalling. Kalwun have a waiting list for new Members wanting tenancy from Kalwun. Kalwun has a Claus [sic] in the Constitution which states members who do not display any enthusiasm or participate/involve themselves or their children in Kalwun or community events will have their membership terminated in the New Year. The Directors will selectively go through the membership…. Another Constitution claus [sic] states that it you are not a member of Kalwun, you do not have the right to rent accommodation from us”.
I find that in fact the Constitution does not state that if members do not display enthusiasm or participate in Kalwun community events their membership will be terminated.
I find that Kalwun have not ever terminated membership for such conduct. I find that Kalwun have never refused membership for application if the member met the relevant criteria as set out in the constitution. That is, at clause 4 of the Articles of Association of Kalwun Development Corporation Limited it states:
“Membership shall be limited to persons who:
1.Are 18 years of age or over
2.Are Aborigines or Torres Strait Islander, or
3.Who satisfy the Council that they subscribe to the objects of the Company; and
4.Who satisfy the council that they have for a period of twenty-four months immediately preceding the date of the application lived within the boundaries or areas of the district which it is intended the KALWUN DEVELOPMENT COPRORATION LIMITED encompasses.
5.Provided that any other person may be a member without voting rights
6.Only indigenous, financial members of the Company can vote at Council meetings and propose or support motions or resolutions
7.Who prove to, or otherwise satisfy, the Council of their involvement in the Gold Coast Aboriginal and Torres Strait islander community”.
Ms Lindenberg meets all the criteria set out in clause 4. Her membership has been approved in the past. I find that the Corporation are attempting to refuse her membership without valid reason. The Board claim that Ms Lindenberg is not entitled to affordable Kalwun housing but cannot give any valid reasons to support this position.
The “Membership” clause of the Articles does not require that a member must display enthusiasm or participate in Kalwun community events to keep their membership current. Further, the membership clause does not specifically require a tenant to be a member but provides that if a member is not financial then they cannot vote at meetings and propose or support motions or resolutions.
When the Board members who gave evidence were questioned if they had ever excluded membership on any other ground other than the matters mentioned in clause 4 their evidence was that they had never done so other than to Ms Lindenberg. Clearly the Corporation do not have the power in their Articles to exclude Ms Lindenberg from membership based on their interpretation of the meaning of the membership clause. I find that their interpretation of that clause is incorrect. Ms Lindenberg meets all the relevant criteria in clause 4 and as such her membership should be accepted.
I find that the tenant Ms Lindenberg is affected by the ongoing behaviour directed at her by the Corporation. I find that she was very emotional at the hearing, at times unable to speak and requiring her partner, Mr Martin Armstrong, to speak on her behalf, to assist her and present the case on her behalf. I find the ongoing conduct by the Kalwun Corporation against Ms Lindenberg by serving Notices to leave without Grounds appalling and without merit. In my view, the conduct of the Corporation by issuing three Notices to Leave without Grounds, both harassing and discriminatory. Such conduct should cease immediately. I understand the evidence of Ms Lindenberg that she feels victimised bullied and singled out and that she claims the evidence shows she has been. I find that should the Respondent Corporation fail to desist from such acts and conduct towards Ms Lindenberg they may find themselves subject to further litigation and proceedings against them. Further, this type of conduct by the Corporation against the tenant, could directly impact on future government funding and directly effect the Corporation’s provision of programs and services to the Aboriginal and Torres Strait Islander community on the Gold Coast.
The Corporation receives funding from both State and Commonwealth Governments to provide services and facilities to its community of Aboriginal and Torres Strait Islander people in the areas of housing, health, aged care, child protection, and family support, youth and employment. I find that in this case it is evident that the Corporation are not providing the support and facilities it should to Ms Lindenberg, a tenant who is an Aborigine and from the Maiawali Karuwali tribe, and a person who is heavily involved in ‘closing the gap’ and working for the aboriginal community.
In my view she is a mentor to her community and a person that young Aboriginal and Torres Strait Islander children could aspire to follow her lead in gaining tertiary education and her volunteer work for the betterment of her community.
CONCLUSION
I find this latest act by the Respondent Corporation and issuing multiple Notices to Ms Lindenberg, being Form 11 and 12 Notices regarding rental arrears (although both notices being defective and without merit) and a Notice to Leave without grounds (so soon after the last decision was handed down in May 2011) as evidence that the Board have failed to understand and comprehend the prior decision made relating to similar events. Nothing had changed from the last hearing and decision in May 2011 and the issuing of further Notices against the tenant some weeks later indicate that the Board of Kalwun have not taken into account the decision and order made against them in May 2011. I cannot understand what it is that the Board do not understand in the findings of fact and the decision and subsequent orders made in the recent decision of Lindenberg v Kalwun Development Corporation Ltd [2011] QCAT 287. Substantially nothing has therefore changed for the tenant or Kalwun and I make similar findings in this case as I did in the last.
Kalwun’s core function is its housing program. The program is to offer affordable long term stable housing accommodation to Aboriginal and Torres Strait Islander members of the community. I find their ongoing conduct and attitude towards this tenant Ms Lindenberg to be directionally opposed and not aligned to what they claim is their core mission and function. The Corporation states that their mission statement and vision is to provide a range of support services to the Aboriginal and Torres Strait Islander community on the Gold Coast. I find in this instance they are not providing the requisite level of support and service to this aborigine, Ms Lindenberg. They are attempting to remove her affordable housing accommodation. To attempt to terminate the tenancy of Ms Lindenberg and attempt to force her to leave her home is in my view, an attempt of Kalwun withdrawing their housing support and services to the very members of the community that they purport to support, and in fact, specifically are funded to support. I cannot state strongly enough that Kalwun should desist from such acts in the future and that this tenant, Ms Lindenberg, and others in her situation, should never be issued with a Notice to Leave without grounds for any reason. If a tenancy is to be terminated for conduct or failings by a tenant renting affordable housing from Kalwun, then a Notice to Leave with grounds is the appropriate course of action that Kalwun should undertake. Should Kalwun choose to ignore such a position and continue to issue Notices to Leave without Ground to this tenant, then they could find themselves back before this tribunal again with similar application and a claim for compensation.
I find that the Form 12 Notice to Leave without Grounds issued on 8 June 2011 a retaliatory act by the Corporation and unreasonable in all the circumstances. I find that the Notice should therefore be set aside.
ORDERS
That the Notice to Leave issued on 8 June 2011 be set aside.
[i] Exhibit 3.
[ii] Exhibit 1.
[iii] Exhibit 5.
[iv] Exhibit 4.
[v] Exhibit 6.
[vi] Exhibit 2.
[vii] Exhibit 4.
[viii] Exhibit 7.
[ix] Exhibit 10.
[x] Exhibit 8.
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