MacDonald v Melville
[2017] QCATA 142
•5 December 2017
| CITATION: | MacDonald v Melville [2017] QCATA 142 |
| PARTIES: | MALCOLM MACDONALD MARITA MACDONALD (Applicant/Appellant) | |
| v | ||
| DAMIEN MELVILLE | ||
| APPLICATION NUMBER: | APL118-17 | |
| MATTER TYPE: | Application and Appeals |
| HEARING DATE: | 13 September 2017 |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Carmody |
| DELIVERED ON: | 5 December 2017 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | THE APPEAL TRIBUNAL ORDERS THAT: 1. The application for leave to appeal and appeal is refused. | ||
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – where the original application named the property agent as respondent – where the orders were directed at the property agent – whether the landlord has standing to appeal LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OTHER MATTERS – where the landlord withheld the benefit of solar credits from the tenant – whether the tenant was induced to rent by misleading information about the nature of the arrangement – whether the solar credits can be withheld Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 39, 42, 126, 127, 145(1), 142(3), 150(1) Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 165(3)(b) | ||
| American Express International Inc v Hewitt [1993] 2 Qd R 352 Barron v Fitzgerald (1840) 6 Bing NC 201; 133 ER 79 Eisentrager v Lyneham [1952] St R Qd 232 Gregor v Victoria [2000] VCAT 414 Hichens, Harrison, Woolston & Co v Jackson & Sons [1943] AC 266 Skelton v Wood (1894) 71 LT 616 (QB) Trojan Resorts Pty Ltd v Emprove Holdings Pty Ltd and Body Corporate for The Reserve CTS 31561 [2017] QCA 153 Young v Cole (1837) 3 Bing NC 724; 132 ER 589 | |||
APPEARANCES and REPRESENTATION (if any):
APPLICANT/APPELLANT Self represented
RESPONDENT Self represented
REASONS FOR DECISION
The respondents brought a residential tenancy claim directly against the applicants’ property agent for “intentionally misleading” them about whether the rebate payable for surplus energy generated by solar panels installed at the premises would be passed on, or alternatively, not informing them that the rebate was to be withheld by the applicants.[1]
[1]Attachment to MCD application filed 9 February 2017.
They contend, in effect, that the solar credits should have been assigned or apportioned as a matter of interpretation or under reasonable expectation principles unless specifically agreed otherwise.
The property agent defended on the basis that the applicants, not the respondents, were the parties entitled to the solar rebate under the general tenancy agreement (GTA).
On ordinary principles a property agent is merely the owner’s representative for a transaction and is not personally liable for any losses incurred by a tenant for any breaches of the tenancy contract. However, any right to claim indemnity against losses, liabilities and expenses incurred in the proper performance of a principal’s instructions[2] is lost if the act is unauthorised[3] or the loss or liability is caused by the agent’s default.[4]
[2]cf Eisentrager v Lyneham [1952] St R Qd 232; Young v Cole (1837) 3 Bing NC 724; 132 ER 589; Hichens, Harrison, Woolston & Co v Jackson & Sons [1943] AC 266.
[3]Barron v Fitzgerald (1840) 6 Bing NC 201; 133 ER 79; Skelton v Wood (1894) 71 LT 616 (QB).
[4]Duncan v Hill (1873) LR 8 Ex 242; M’Millan v Read (1877) 3 VLR (L) 284.
These proceedings were clearly not instituted to recoup alleged power overpayments as monies had and received by the applicants as the property agent’s principals but for misrepresentation or non-disclosure in breach of a legal duty.
The tribunal resolved the dispute by ordering the property agent to pay the respondents $770.86 or the dollar difference between the $398.31 the applicants “actually expended” for electricity supply services to the premises and the $1169.17 billed to the respondents for power consumption. Or, in other words, the monetary value of the applicants’ solar credit which the tribunal found at T1-8:10 amounted to an impermissible charge for supplying power the applicants had not actually incurred.
The tribunal impliedly held that the terms of the GTA were insufficient to impose a liability on the tenants to pay the gross amount of the electricity bill. Compensation was presumably ordered against the property agent on the unstated basis that it was the named respondent and had somehow caused the tenant’s loss by omission in breach of some unidentified duty.
No specific finding was made to address the ‘intentionally misleading’ allegation. While capable of raising a question of law for the purposes of deciding leave, a failure to consider or give adequate reasons may not call for intervention by way of appeal.[5]
[5]American Express International Inc v Hewitt [1993] 2 Qd R 352, 353.
The context
The premises are powered by solar energy generated by rooftop panels installed by the owner and metered electricity services supplied from the grid by Ergon Energy.[6]
[6]GTA Item 12.1.
The tenants only had to pay Ergon for the electricity they consume over and above that supplied by the panels. To encourage energy conservation, the government buys any surplus power generated by the solar panels and adds it back to the grid under a rebate scheme.
The Electricity Act1994 (Qld) confers the entitlement to the rebate on the electricity account holder. In this case, the applicants.
The special terms in Addendum B do not mention electricity charges and Addendum A - Additional Items (referred to on Part 3 Special Terms, page 8 of the GTA) specifically states that:
… the electricity will remain in the lessors name and will be invoiced to the tenant when applicable. The tenant agrees to pay the electricity invoiced by the due date to (the property agent)…
which may not adequately convey the applicant’s intention that the solar credits portion of the bill will be withheld from the respondents.
Item 14 of the GTA states that electricity services are to be paid by the lessor “as account holder, direct to the electricity supplier”.
In practice Ergon sent the electricity account to the applicants expressed in net terms with the “total amount due” for new charges, that is; the metered consumption in the billing period, less the solar scheme credits, plus other fees. The applicants paid the account and the property agent then billed the tenants for the total consumption plus meter services charges.
A note to Item 14 advises that:
If the solar credits portion of the bill is to be withheld and not passed on to the tenant, it should be stated here and in the special terms rather N/A, as this is very applicable to the agreement and has not been noted.
The GTA is subject to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRAA). Under s 165(3)(b)(ii) RTRAA the tenants must pay “the amount charged” for any electricity services supplied to the premises that they enjoy during the tenancy in the way specified in Item 14.
QCAT appeals
The applicants apply for leave to appeal the decision (which includes the order) for legal error in their own right as lessors even though they were not joined as parties to the original claim. The property agent has not applied to appeal and the order is still unsatisfied.
A tribunal order is “binding on all parties to the proceeding” but not on a non-party.[7]
[7]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 126.
A “party” to a minor civil dispute proceeding may appeal a decision of the tribunal with leave.[8]
[8]QCAT Act s 142(3)(a)(i).
Under s 39 QCAT Act “a party to a proceeding” relevantly is –
(a) the applicant; or
(b) a person in relation to whom a decision of the tribunal is sought by the applicant; or
(c) a person intervening in the proceeding under s 41; or
(d) joined as a party under s 42; or
(e) someone else an enabling Act states is a party to the proceeding.
The applicants do not meet any of these descriptions.
The Court of Appeal recently struck out an appeal filed by a non-party lot owner from a QCAT tribunal order invalidating resolutions of an annual general meeting of a body corporate terminating letting agreements. The court found that the words ‘a person’ in s 150(1) QCAT Act read in the light of s 142(1) of the Act did not extend to a person who was not competent to appeal under s 142(1), notwithstanding “its commercial interest in the outcome of the litigation” or “who might venture that it is convenient or necessary that they themselves might appeal”.[9]
[9]Trojan Resorts Pty Ltd v Emprove Holdings Pty Ltd and Body Corporate for The Reserve CTS 31561 [2017] QCA 153, 4.
On this approach, the applicants would only be competent to appeal the order made against the property agent if they successfully applied to be substituted for the property agent in the leave application under s 42(1) QCAT Act or the power to amend documents in s 64.
Section 42(1) is the QCAT joinder provision. It applies to all the tribunal jurisdictions including appeal proceedings but does not expressly cover substitutions. The factors to consider when making a discretionary order under s 42(1) which have overlapping relevance and pertinence to the issue in this case have been held to include:
·the utility in ordering the joinder, including if it would avoid duplication of the litigation, or a multiplicity of proceedings;[10]
·whether in another proceeding there might be common questions of law or fact;[11]
·whether joining a party would enable a final resolution of all issues in dispute;[12] and
·whether the order would achieve the objects of the QCAT Act.[13]
[10]Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241 [11].
[11]Ibid.
[12]Ibid; Gregor v Victoria [2000] VCAT 414.
[13]Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241 [11].
Even though the tribunal’s interpretation of s 165(3)(b)(ii) RTRAA and its liability findings against the property agent are arguably wrong, the appeal tribunal does not find it necessary or desirable to join the property agents, or substitute the applicants at this late point in the process.
The respondent specifically named the property agent because they felt the agent had misled them into the terms of the tenancy. The applicants are proposing to appeal the decision, not on the basis that the misrepresentation did not occur, but on the grounds that the arrangement was fundamentally legal.
The tribunal decision, therefore, stands. It has immediate effect[14] and is unaffected in its operation by the start of appeal proceedings.[15] This leaves the property agent exposed to enforcement action for not complying with it despite a potential possible appeal point and indemnity claim against the applicants. New proceedings based on s 165(3)(b)(ii) RTRAA are required if the property agent wants the applicants to reimburse it for the amount it has to pay the respondents.
[14]QCAT Act s 127.
[15]QCAT Act s 145(1).
Leave is refused accordingly.
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