McCaul v Marsden Corporation Pty Ltd t/a Living Here Property People
[2016] QCAT 438
•16 November 2016
CITATION: | McCaul v Marsden Corporation Pty Ltd t/a Living Here Property People & Ors [2016] QCAT 438 |
PARTIES: | Margaret McCaul |
| v | |
| Marsden Corporation Pty Ltd t/a Living Here Property People (Respondents) | |
APPLICATION NUMBER: | MCDT1928-16 |
MATTER TYPE: | Residential tenancy matters |
HEARING DATE: | 22 September 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Adjudicator Anna Walsh |
DELIVERED ON: | 16 November 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Application by the Respondent to join Cule Constructions Pty Ltd as a party to the proceedings is refused 2. Application to remove Marsden Corporation Pty Ltd trading as Living here Property People as a Respondent to the Application is refused 3. Application by the Respondent to be legally represented is refused 4. Application to amend the application to include the owner Ros Sloane and Coronis Group as the Respondents is granted. |
CATCHWORDS: | Procedural Matters – Joining Parties – Representation Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 42, s 43 |
APPEARANCES: |
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
On 12 August 2016, Margaret McCaul filed an application for minor civil dispute – residential tenancy dispute, against the Respondent Marsden Corporation Pty Ltd t/a Living Here Property People.
The Applicant claims a rent reduction and compensation in respect of mould issues in a rental property.
On 23 August 2016 Marsden Corporation applied to the Tribunal by application for miscellaneous matters to:
a)join the builder of the premises Cule Constructions Pty Ltd as a party to the Application; and
b)to be removed from the proceedings.
The Application also attached a draft Application for legal representation (together with submissions), for filing in the event that the application to be released from the proceedings was unsuccessful.
On 7 September 2016 the Applicant applied to:
a)join the owner of the property, Ros Sloane as a party to the proceedings; and
b)join the newly appointed agent, Coronis Group as a party to the proceedings
I considered the applications, refused the Applications of the Respondent, and granted those of the Applicant.
The Respondent has requested reasons for these decisions.
The Applicants claims are based on breaches of the tenancy agreement signed by her and the property owner. The builder is not a party to that agreement.
The owner may have a right of recourse against the builder in an appropriate jurisdiction, but such claims cannot be considered in proceedings relating to a breach of a tenancy agreement.
The Application to join the builder was refused.
Marsden Corporation was the agency appointed by the owner to manage the property and was the point of contact for Ms McCaul during the period she occupied the premises.
Notwithstanding that, the owner is now a party to the proceedings, the agency is in the best position to respond to the claim and assist the Tribunal. It appears the owner had little if any contact with the tenant and it is desirable that Marsden Corporation remain a party to the proceedings until the Tribunal determines the application.
The Application to remove Marsden Corporation from the proceedings was refused.
In general parties, appearing in the Tribunal should represent themselves justice require otherwise.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 43.
In considering whether to grant leave the tribunal may consider among other things, whether the proceeding is likely to involve complex questions of law, another party to the proceeding is represented and whether there is agreement to a party being represented.
The current application is unlikely to involve complex questions of law. It involves determining whether pursuant to the provisions of the Residential Tenancies and Rooming Accommodation Act 2009 (Qld) the Applicant should be compensated in respect of mould growth in the premises she rented and if so assessing the amount of compensation.
The other parties are not represented and there is no agreement by the other parties to representation of Marsden Corporation.
In its submissions Marsden Corporation have anticipated that the proceedings will involve some complexity because the tenant is seeking compensation directly from it and not in its capacity as agent for the owner but this is not apparent from the application filed.
For these reasons, the application for representation was refused.
The parties agree to the owner being joined as a party to the application. In fact, Marsden Corporation asked her to make the application.
The Applicant applied to join Coronis Group and the application was granted as they are the current agent.
How to respond to the application is a question for all three, or any one or more of the Respondents.
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