Mann v Hamilton Island Enterprises Limited - [2012] QCATA 142

CITATION:

Mann and Anor v Hamilton Island Enterprises Limited [2012] QCATA 142

PARTIES:	Stuart Mann Emma Mann (Applicants/Appellants)
v
Hamilton Island Enterprises Limited (Respondent)

APPLICATION NUMBER:

APL020-12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON:

13 August 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal granted.

2. Appeal allowed.

3. It is declared that the tenancy of the Appellants at Unit 4.1 Harbourview Apartments, Hamilton Island is a residential tenancy within the meaning, and for the purposes of the Residential Tenancies and Rooming Accommodation Act 2008.

4. No order as to costs.

CATCHWORDS:

Whether appellants’ right of occupation a residential tenancy – whether tenancy excepted as board or lodging – whether leave to appeal should be granted

Residential Tenancies and Rooming Accommodation Act 2008, ss 8, 12, 28, 29, 32, 53, 433, 521
Property Law Act 1974, Schedule 3
Queensland Civil and Administrative Law Act 2009, ss 32, 142

Coleman v Dornan [2011] QCATA 47
Noblett v Manley [1952] SASR 155
Commissioner for Fair Trading v Voulon [2005] WASC 229
Noble v Centacare (2003) 150 ACTR 12; [2003] ACTSC 37
Aslan v Murphy [1985] AC 809
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Drew v Bundaberg Regional Council [2011] QCA 359
Fox v Percy (2003) 214 CLR 118

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 (QCAT Act).

REASONS FOR DECISION

Mr and Mrs Mann and their children rent a residential unit in Harbourview Apartments on Hamilton Island. It has 3 bedrooms and is fully self-contained. Their tenure depends on currency of their employment by Hamilton Island Enterprises Limited (Hamilton).
The Manns contend that their right to occupy those premises is a residential tenancy within the meaning of the Residential Tenancies and Rooming Accommodation Act 2008 (the Act) and seek a declaration to that effect.
Initially they approached the Residential Tenancies Authority. Incorrectly, it rejected their application on the ground that theirs was a long term lease, and, as such, was excluded from the Act by section 521. That is no longer an issue. Accommodation arrangements between employer and employee are quite capable of being residential tenancies within the meaning and for the purposes of the Act.[1]
[1] See sections 38(2), 288, 329(2)(g), 374.
The respondent Hamilton opposes the application, contending that the Manns are merely “boarders or lodgers”, and, as such, do not hold a residential tenancy to which the Act applies.[2] No formal lease or licence is in evidence, but that is by no means fatal to the claim[3]. When Mr Mann accepted Hamilton’s offer of employment in September 2006, he agreed to be “bound by [the] Hamilton Island Rules and Regulations” (the Rules), Clause 5 of which deals with employee accommodation. Mrs Mann signed a similar acceptance on an unspecified date in 2010.
[2]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] QCATA 142
Decision Date: 13 August 2012

CaseChat Overview and Summary

Mann v Hamilton Island Enterprises Limited involved a dispute between the appellants, Mr and Mrs Mann, and the respondent, Hamilton Island Enterprises Limited, regarding the nature of their occupancy at Unit 4.1 Harbourview Apartments on Hamilton Island. The primary issue was whether the appellants' occupancy constituted a residential tenancy or was instead excepted as board or lodging under the Residential Tenancies and Rooming Accommodation Act 2008. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT) and subsequently appealed to the Queensland Court of Appeal.

The legal issues the court had to address included the interpretation of the term "residential tenancy" as opposed to "board or lodging" under the Act, and whether the appellants' arrangements with the respondent were consistent with the characteristics of a residential tenancy. This included considerations of the duration of the stay, the provision of services, and the extent of control and supervision exercised by the respondent over the appellants' stay. The court also had to determine whether the appeal should be granted leave to proceed, based on the significance of the legal questions involved and the potential impact on similar cases.

The Queensland Court of Appeal determined that the appellants' occupancy was indeed a residential tenancy. The court found that the arrangements did not meet the criteria for board or lodging, as the appellants had a degree of permanency and autonomy in their stay, and the services provided were ancillary rather than central to the arrangement. The court granted leave to appeal, finding that the case raised important questions of statutory interpretation that warranted further judicial consideration. Ultimately, the appeal was allowed, and it was declared that the tenancy was a residential tenancy under the Act. No order was made as to costs.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. It is declared that the tenancy of the Appellants at Unit 4.1 Harbourview Apartments, Hamilton Island is a residential tenancy within the meaning, and for the purposes of the Residential Tenancies and Rooming Accommodation Act 2008.

4. No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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