Lindenberg v Kalwun Development Corporation (No 2)
[2012] QCAT 709
| CITATION: | Lindenberg v Kalwun Development Corporation (No 2) [2012] QCAT 709 |
| APPLICANT: | Therese Lindenberg |
| v | |
| RESPONDENT | Kalwun Development Corporation |
| APPLICATION NUMBER: | MCDT823-12 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 25 September 2012 |
| HEARD AT: | Southport |
| DECISION OF: | Christine Trueman, Adjudicator |
| DELIVERED ON: | 19 December 2012 |
| DELIVERED AT: | Southport |
ORDERS MADE: | 1. The Form 12 Notice to Leave dated 23 July 2012 is 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 Applicant has been successful in having prior Notices to Leave issued against her set aside – where Respondent claims there are other families with higher priorities and greater needs – application of aboriginal tradition Residential Tenancies and Rooming Accommodation Act 2008, s 151(5)(a) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Therese Lindenberg |
| RESPONDENT: | Ms Billie Edwards representing Kalwun Development Corporation |
REASONS FOR DECISION
Ms Lindenberg is the tenant of a property owned by Kalwun located at 72 Rivergum Drive, Nerang in Queensland. She has lived in the property since November 2005. The tenant is currently subject to a periodic tenancy that commenced on 28 June 2010.
Kalwun issued a Form 12 Notice to Leave to Ms Lindenberg, that was dated 23 July 2012 giving notice to hand over the property on 24 August 2012. The Notice to Leave was issued without grounds.
Ms Lindenberg filed her application on 1 August 2012 seeking an order from the tribunal that the Notice to Leave be set aside[i] on retaliatory grounds[ii].
Applicant’s Evidence
Ms Lindenberg claims that Kalwun have embarked on a campaign over many years to evict her from her home. She attached to her claim a previous QCAT decision dated 22 June 2012 being claim number 1073/11 whereby a similar application was brought by her. That decision ordered that the Notice to Leave be set aside and the Notice was found to be issued on retaliatory grounds.
Ms Lindenberg states that this case and latest Notice to Leave is also retaliatory and she seeks assistance from the tribunal to “stop the continual retaliation and …the bullying harassment to end.” She claims that Kalwun’s conduct towards her has “affected my health and many other areas of my life.”
Ms Lindenberg noted in her claim that another decision, being claim numbers 1085/11 and determined on 22 June 2012 involved another application made by her seeking the same orders from the tribunal in setting aside a Notice to Leave. That application was ultimately successful, the Notice found to be retaliatory and set aside.
Ms Lindenberg filed an application with the tribunal prior to the hearing on 10 September 2012 seeking leave to be represented by Elder Graham Dillon. An order was made on 21 September 2012 granting such leave.
Ms Lindenberg claims that this application is the fourth attempt in the last few years by Kalwun to evict her from her home in Nerang. Ms Lindenberg stated that she lived in her home with her adult children. She does not want to leave her home and was upset, stressed and very anxious in having to deal with the “ongoing bullying and harassment by Kalwun to evict her.”
Ms Lindenberg claims that she has been victimised by Kalwun and that there is no justifiable reason why she should vacate the property she has been living in for many years.
Ms Lindenberg stated that the ongoing treatment by Kalwun towards her was causing her to suffer a medical condition. She provided to the tribunal a letter from her treating specialist doctor dated 19 September 2012[iii] that stated that she “has been suffering symptoms of tension, anxiety and depression as a result of a vendetta of persecution by the Board of Kalwun Development Corporation who have been trying to force Therese out of her home.”
The report of the doctor included descriptions of medical symptoms of “vomiting blood” due to “gastro-oesophageal reflux” and that it was recognised as “stress induced’. The medical opinion of the treating specialist doctor stated that he believed that “it is essential for… (her) mental health that the persecution that she has been suffering is terminated as quickly as possible and that… (she) is allowed to live in peace in her own home”.
Ms Lindenberg stated that she had been offered another Kalwun property to live in and was advised it was located at 4/6 Martin Street in Nerang. Ms Lindenberg said that she went to the property to have a look at the unit and spoke to someone at the property. She said that she was informed that the unit was occupied by another tenant who had no knowledge of the tenant moving out or that Ms Lindenberg was possibly moving into that unit. Ms Lindenberg stated that she felt that Kalwun and Ms Edwards had lied to her as they and told her that the unit that they were intending on relocating her to was “available” when clearly it was not. Ms Lindenberg said she did not trust Kalwun and did not want to move to another property.
Ms Lindenberg said that the unit Kalwun suggested she move to was not suitable for her to live in. She said that her adult children did live with her and that they had their own room. She said her daughter was at university and studying and needed to be settled and stable. She said her grand daughter came to stay with her from time to time and that her grand daughter used the yard to play in at her home. She said her son and his partner had been staying with her for a while as they were looking for other alternative accommodation. Ms Lindenberg said she was studying at university herself that she felt settled and happy living in the house and did not want to move. She said that her family lived with her and that while her daughter was studying she was still dependent on her and that Ms Lindenberg still supported her. Ms Lindenberg said that she considers housing and family as very important to her and that she could not understand why Kalwun thought that her families’ needs were any less than any other family.
Respondent’s Evidence
The evidence of Ms Edwards was that Kalwun had served Ms Lindenberg with a Notice to Leave without grounds based on the fact that while they were seeking orders to terminate her lease and have her vacate the property at Rivergum Drive they were offering her alternative accommodation at a unit in Martin Street, Nerang. The evidence of Kalwun was that the house that Ms Lindenberg lived in was a three bedroom house, with a garage, and that it was more appropriate for a family with young children to live there and that Ms Lindenberg should give up the house with a yard for a family and that she should agree to move to a smaller unit.
Ms Edwards stated that Kalwun were not attempting to remove Ms Lindenberg from Kalwun housing accommodation but to merely have her move from a house to a unit. Ms Edwards alleged that they had a family with young children on a waiting list and that they were “in urgent and had a greater need of a house with a yard than Ms Lindenberg”. She said that there were “many families on the waiting list” and that families should have priority.
Ms Edwards stated that a unit had been offered to Ms Lindenberg at 6 Martin Place in Nerang and that it had 3 bedrooms and was available to her. Ms Edwards stated that Ms Lindenberg’s needs were not as urgent as a family as she only had one child who lived with her who was an adult. Ms Edwards said that Ms Lindenberg and her adult child could live in the unit and should forgo the house for a family with young children.
Ms Edwards stated that a letter[iv] had been sent to Ms Lindenberg offering her to apply for membership of Kalwun, for her to vacate her house and to move into the unit at Martin Street, Nerang. A copy of a new lease was attached to the letter.[v] The letter proposes that subject to the “membership forms being completed and submitted within 2 weeks that the vacate and move in date would be 4 September 2012.”
Ms Edwards claims that the reason that Kalwun want Ms Lindenberg to move is that she “no longer has a current lease, that her lease has expired, and that she does not need a large house”. Ms Edwards provided submissions[vi] to the tribunal that the issuing of the Form 12 Notice to Leave without grounds “is not retaliatory” but that “this tenant has really tested our patience.”
The submissions disclose that Ms Lindenberg’s tenancy has endured a rent increase from $250.00 to $280.00 per week. Ms Edward’s stated that the rent increase is not retaliatory by was merely a rental increase for all tenants made on 30 June 2012. She said that Ms Lindenberg’s rental increase of $30 per week has been “refused” by her and that she has not paid the additional amount. The submissions refer to other matters including alleged locks on doors in the rental property and membership issues, matters that are not relevant to this application and have therefore not been considered or taken into account.
The submission of Ms Edwards is that Ms Lindenberg’s lease of the property at 72 Rivergum Drive should be terminated pursuant to section 151(5)(a)[vii] of the Residential Tenancies and Rooming Accommodation Act 2008. However, that section is not relevant to this application.
Ms Edwards alleges that Ms Lindenberg’s tenancy should be terminated on the grounds that the house is too big for her, that there are other families in greater need and that Ms Lindenberg has a lower priority for a house than a family with younger children. Ms Edwards claims that by Ms Lindenberg refusing to leave the house at Rivergum Drive and move to a unit is causing “excessive hardship” to Kalwun.
Ms Edwards did provide in her submissions that were filed with the tribunal at the first return date on 21 August 2012 that the matter should be adjourned for a couple of weeks to allow the parties to try and resolve the matters between them. The claim was adjourned from 21 August 2012 to 25 September 2012 to allow the parties to mediate the matter. The matter came on before the tribunal again in September, but the parties had been unable to resolve the dispute, the matter was heard and the decision was reserved.
Ms Edwards provided to the tribunal some emails[viii] that were evidence of alleged interactions between Ms Lindenberg and a tenant ‘Wendy Manning’ who allegedly lives at the units in Martin Street in Nerang. It is alleged that she spoke to Ms Lindenberg about the vacant or available unit in the complex.
Findings
This is an application to set aside a Form 12 Notice to Leave without grounds. Ms Lindenberg states that the Notice is retaliatory. She does not want to leave her home and does not want to move to another property owned by Kalwun.
The Notice to Leave has been issued without grounds. Yet it appears that Kalwun have raised issues and grounds as to why they want Ms Lindenberg to vacate the property. Kalwun have in the past issued Notices to Leave without grounds that were found to be retaliatory. In past decisions Kalwun have been directed to their obligations and responsibilities. Ms Lindenberg has had four Notices to Leave served on her to vacate and deliver up possession of the property.
In deciding an application for a termination order, this tribunal must have regard to Kalwun’s practice in observing Aboriginal tradition in dealing with similar matters with other tenants of the lessor.[ix] In this case the evidence was that Kalwun conceded that there are other families and Board members who live in houses (and not units) with adult or no children who have not been requested to give up living in a house. Ms Edwards agreed that no other tenant of Kalwun who was in the same circumstances as Ms Lindenberg had been asked to give up a house with a yard, to move into a unit and to live in smaller accommodation. I find that in this case that Kalwun have not been “even handed” and are electing to treat Ms Lindenberg differently and with lesser priority than other tenants in the same circumstances. The evidence was that Kalwun have never issued a Form 12 Notice to Leave without grounds to any other tenant of the lessor in the same circumstances as Ms Lindenberg. That fact alones suggests a finding that Ms Lindenberg is being targeted and victimised with the constant conduct by Kalwun in trying to evict her. As I have found in previous decisions involving the same parties, that membership of Kalwun in not mandatory nor mandated in the Constitution as a requirement of eligibility for Kalwun housing accommodation.[x]
I find that the issue again raised by Ms Edwards and Ms Lindenberg’s lack of membership to Kalwun as irrelevant to this case. I find that the fact Ms Lindenberg has been refused membership by Kalwun as having no impact on her eligibility for housing. In fact I find that in this case the offer to Ms Lindenberg to be approved membership only if she agreed to move to the unit tantamount to bribery. It is inappropriate for Kalwun to only offer membership to Ms Lindenberg conditional on her giving up her house at Nerang. In the circumstances, membership conditional on compliance with a request to move is unreasonable in all the circumstances. If that is the case Ms Lindenberg should have her membership to Kalwun approved despite what type of property she lives in or where she lives.
I could not be directed by Kalwun to any provision in the Residential Tenancies and Rooming Accommodation Act 2008 that would provide the tribunal with the power to order that Ms Lindenberg’s lease be terminated and a warrant issue to evict her from her current accommodation and provide Kalwun with possession based on the fact that there were other families with higher priorities and greater needs. I reject Kalwun’s submission that the fact that Ms Lindenberg continued to reside in a house and her refusal to move into a unit provided “excessive hardship” to Kalwun. There was no evidence provided to the tribunal that would support such a finding.
I find that Kalwun would be discriminating to give priority to accommodation to a family with young children over a family with adult children. Kalwun provide housing accommodation to all families in need, and as their own Memorandum state that the objects of the Corporation are to
“assist aborigines and Torres Strait Islanders in need of accommodation and other housing services in the Gold Coast and surrounding areas, to rent accommodation from Kalwun to Aboriginal &/or Islander Aboriginal & Torres Strait Islander members only and to assist aborigines and Torres Strait Islander to purchase their own home.”
I find that I must concede to the application by Ms Lindenberg, and set aside the Notice to Leave without grounds, to comply with Kalwun’s own objects in its Memorandum and Articles of Association and the Corporations Constitution. I find that the Notice to Leave without grounds was issued as a retaliatory act, an act that is one in an unfortunate continuing history of retaliatory acts by Kalwun towards Ms Lindenberg.
I find that the Notice to Leave is unreasonable in all the circumstances and in contravention of the Lessor's Aboriginal tradition practice. I find that the Notice should therefore be set aside.
ORDER
THAT the Form 12 Notice to Leave dated 23 July 2012 is set aside.
[i] Section 292 Residential Tenancies and Rooming Accommodation Act 2008.
[ii] Section 291(3) Residential Tenancies and Rooming Accommodation Act 2008.
[iii] Exhibit 2.
[iv] Dated 21 August 2012.
[v] Bundled in documents marked “Exhibit 1”.
[vi] Bundled in documents marked “Exhibit 1”.
[vii] Paragraph 10, page 2 of Submissions dated 21/8/2012 – ‘Exhibit 1’.
[viii] Exhibit 1.
[ix] Section 422(2) Residential Tenancies and Rooming Accommodation Act 2008.
[x] Lindenberg v Kalwun Development Corporation Ltd [2011] QCAT 287 (19 May 2011).
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