Louise Griffin Property Management v Al Najim
[2014] QCATA 291
•15 October 2014
| CITATION: | Louise Griffin Property Management v Al Najim [2014] QCATA 291 |
| PARTIES: | Louise Griffin Property Management |
| v | |
| Naje Al Najim |
| APPLICATION NUMBER: | APL110 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 15 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 18 December 2013 is set aside. 4. A termination order is made in respect of premises at Unit 3, 45 Cleveland Street, GREENSLOPES QLD 4120 on the grounds of failure to leave as and from 15 October 2014. 5. I Direct the issue of a Warrant of Possession to the Principal Officer of Police at the relevant Police Station in the State of Queensland in the following terms: This Warrant takes effect on the 24TH day of November 2014 whereas the Queensland Civil and Administrative Tribunal has made the Termination Order above, you are authorised for the period of fourteen (14) days from the above date expiring on the 8th day of December 2014: (i) to enter the premises and give possession of the premises to the Applicant herein and; (ii) to exercise such powers under this warrant with necessary and reasonable help and force 6. Entry under this Warrant to be made between the hours of 8.00am and 6.00pm. | ||
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where notice to leave without grounds – where letter delivered with notice – where letter translated – where translation alleged to be inadequate – where tenant elderly and of ill health – where tribunal refused to terminate tenancy - whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act (Qld) 2008 s 329(2)(j) Pickering v McArthur [2005] QCA 294 | ||
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Naje Al Najim is an elderly man with health problems who speaks little English. He has lived in his rental unit for 13 years. Louise Griffin Property Management manages the unit for the owner. In August 2013, the owner wanted vacant possession of the unit, so the agent issued a notice to leave without grounds. The agent also provided a letter setting out the effect of the notice. As a precaution, the agent also had the letter translated into Arabic.
Mr Al Najim did not leave the property at the end of the notice period so the agent filed an application for termination. The tribunal refused to terminate the tenancy.
Louise Griffin Property Management wants to appeal that decision. It says the learned Adjudicator was biased. It says that the QCAT interpreter exceeded her authority when she translated the Arabic document. It says the learned Adjudicator failed to provide natural justice. It says the information in Arabic was provided as a courtesy and did not form part of the notice to leave. It says that, contrary to the learned Adjudicator’s findings, the notice to leave was valid.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act, s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
Mr Al Najim says that the application for leave to appeal was filed out of time. The decision was made on 18 December 2013 and the agent received the decision on 23 December 2013.
The appeal period runs from the date a party receives reasons for a decision[3]. I have confirmed that the agent did not receive reasons for decision until 6 February 2014. The application for leave to appeal was filed on 3 March 2014, within the prescribed time.
[3]QCAT Act ss 143(4), 5)
The application for leave to appeal must succeed. To terminate a tenancy without grounds, the tribunal must be satisfied that:
a) The notice to leave was valid.
b) The notice to leave was served.
c) The tenant was given two months’ notice and the handover date was correctly identified.
The tribunal can then make an order for termination if it is satisfied that it is appropriate to do so[4].
[4]Residential Tenancies and Rooming Accommodation Act (Qld) 2008 s 341
Early in the proceeding, Ms Duncan, for the agent, told the learned Adjudicator about the letter she sent with the notice to leave[5]. The learned Adjudicator asked the tribunal-appointed interpreter to read the letter into the record[6]. Mr Al Najim’s son then told the learned Adjudicator ‘They not translate it properly’[7]. The interpreter confirmed that view[8].
[5]Transcript page 1-7 lines 1 - 3
[6]Transcript page 1-8, lines 33 - 34
[7]Transcript page 1-8, line 40
[8]Transcript page 1-9, lines 8 – 12, 40 - 42
The learned Adjudicator found[9] that the notice to leave was defective. In fact, he did not consider the validity of the notice to leave because he confused the letter with the notice. It is clear from the interpreter’s translation[10] that the Arabic information was just that; information about the notice. Any defect in the Arabic information could not affect the validity of the notice to leave.
[9]Transcript page 1-35, lines 10 - 13
[10]Transcript page 1-10, lines 40 – 42; page 1-11, lines 6 - 8
There is no obligation to provide a notice to leave in a language other than English.
I agree that the interpreter exceeded her authority by commenting on the accuracy of the translation. Her role was to interpret, directly, the oral evidence, the learned Adjudicator’s comments, directions and findings. It was not her task to translate the Arabic information or to comment on its accuracy.
Mr Al Najim’s son told the learned Adjudicator that the Arabic information didn’t make sense[11]. It seems he knew that before the hearing. If that was a ground for resisting the application for termination then Mr Al Najim should have called that evidence, rather than leaving it to the tribunal’s interpreter.
[11]Transcript page 1-16, lines 38 -39.
Bias is a very serious allegation. The test is[12]:
… if a fair-minded lay bystander might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the issues that he or she must decide.
[12] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
On the other hand, the tribunal must take reasonable steps to ensure that a person understands the tribunal process having regard to that person’s cultural background[13] and disabilities[14]. There is a delicate balance between meeting the tribunal’s obligations to a litigant in person with language and health difficulties and preserving the tribunal’s member’s independence.
[13]QCAT Act s 29(1)(c)(i).
[14]Ibid s 29(1)(c)(ii).
The transcript does show that the learned Adjudicator took extra care to ensure that Mr Al Najim understood the hearing. It also apparent from his reasons for decision that the learned Adjudicator took account of Mr Al Najim’s age and poor health.
Unfortunately, because the learned Adjudicator did not step his way through the elements of the agent’s application in an orderly way, and because the learned Adjudicator took evidence from the interpreter about an irrelevant matter, a fair minded bystander might come to the view that he did not bring an impartial mind to the determination of the issues.
Leave to appeal should be granted and the appeal allowed. I then have to decide if the application for termination should be granted.
Firstly, I have to decide whether the notice to leave was served. The learned Adjudicator found[15] that Ms Duncan was telling the truth. He also noted[16] that Mr Al Najim had no documentary evidence to suggest the contrary.
[15]Transcript page 1-32, lines 35 – 42.
[16]Transcript page 1-32, lines 37 – 39.
Mr Al Najim told the learned Adjudicator that he did not want to deal with Ms Duncan because he was used to dealing with the owner directly. Mr Al Najim’s son told the learned Adjudicator that they did not receive any papers confirming Ms Duncan’s appointment[17]. When the learned Adjudicator directed Mr Al Najim to the notice of appointment[18], the complaint changed. Mr Al Najim’s son told the learned Adjudicator that they expected notice from the owner, not the agent[19]. He also told the learned Adjudicator that the agent should have asked Mr Al Najim to sign for the receipt of the notice[20].
[17]Transcript page 1-17, lines 38 – 42.
[18]Transcript page 1-17, lines 44 – 46.
[19]Transcript page 1-18, line 1.
[20]Transcript page 1-18, lines 32 – 34.
Mr Al Najim’s submissions on appeal admit receipt of the notice.[21]
[21]Paragraph 25(a).
The agent’s notice was in the appropriate form. She was not required to have Mr Al Najim sign for it. I am satisfied that Ms Duncan did serve the notice on Mr Al Najim on 12 August 2013.
The only tenancy agreement in evidence expired in May 2001. Therefore, Mr Al Najim was a periodic tenant. The handover date of 14 October 2013 complied with the requirements of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).[22]
[22]Section 329(2)(j).
That leaves the exercise of the tribunal’s discretion. The factors against ordering a termination are that Mr Al Najim has been a tenant for 13 years, he is elderly and in ill health. Further, Mr Al Najim’s son told the tribunal that, although Mr Al Najim was a high priority for social housing, it was taking some time to source that housing.
Against that, Mr Al Najim planned to travel overseas for almost three months shortly after the handover date[23]. That period coincided with the “hardest time to find accommodation”[24]. It seems that Mr Al Najim made no effort to find accommodation during the notice period.
[23]Eticket dated 25 October 2013.
[24]HART letter “To the Magistrate” dated 10-12-13.
The owner is entitled to vacant possession of the property. The reason why the owner wants vacant possession is irrelevant. It does not matter that Mr Al Najim has been a good tenant who has always paid his rent. It does not matter that Mr Al Najim will allow access for repairs. That is why the notice was “without grounds”.
On balance, I am satisfied that Mr Al Najim’s tenancy should be terminated. I am mindful of the difficulties in obtaining alternative accommodation. Therefore the date for termination will be 24 November 2014.
ORDERS
Leave to appeal granted.
Appeal allowed.
The decision of 18 December 2013 is set aside.
A termination order is made in respect of premises at Unit 3, 45 Cleveland Street, GREENSLOPES QLD 4120 on the grounds of failure to leave as and from 15 October 2014.
I Direct the issue of a Warrant of Possession to the Principal Officer of Police at the relevant Police Station in the State of Queensland in the following terms:
This Warrant takes effect on the 24th day of November 2014 whereas the Queensland Civil and Administrative Tribunal has made the Termination Order above, you are authorised for the period of fourteen (14) days from the above date expiring on the 8th day of December 2014:
(i) to enter the premises and give possession of the premises to the Applicant herein and;
(ii) to exercise such powers under this warrant with necessary and reasonable help and force
Entry under this Warrant to be made between the hours of 8.00am and 6.00pm.
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