QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Meyer & Anor v Murchie & Anor [2020] QCATA 175
PARTIES: KARL MEYER and ANOR (Applicants)
v
JULIE MURCHIE AND ANOR (Respondents)
APPLICATION NO:
APL196-19
ORIGINATING APPLICATION NO:
MCDT 157-19 Townsville
MATTER TYPE:
Appeals
DELIVERED ON:
22 December 2020
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Dr J R Forbes, Member
ORDER:
The application for leave to appeal is dismissed.
CATCHWORDS: APPLICATION FOR LEAVE TO APPEAL – LANDLORD AND TENANT – residential tenancy – flood emergency – whether agreement frustrated – whether future obligations of tenant survive – whether, if obligations otherwise survive, agent may release tenant from same – where lessor’s agent purported to grant release – whether agent acted within scope of authority –functions of primary tribunal – limitations of application for leave to appeal
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28, s 32
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 305, Form 13
Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Codelfa Construction Company Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Damjanovic v Sharpe Hume and Co [2001] NSWCA 407
Fox v Percy (2003) 214 CLR 118Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896
JM v QFG and KG [2000] 1 Qd R 373Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161
Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611
Nickelseekers Pty Ltd v Vance [1985] 1 Qd R 266
R v District Council of Berri; Ex parte Eudunda Farmers’ Co-operative Society Ltd (1982) 31 SASR 342
R v Essex Justices; Ex parte Perkins [1927] 2 KB 475
S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358Shaw, Re; Ex parte Shaw (1981) 55 ALJR 12
Vakauta v Kelly (1989) 167 CLR 568
Walton v New Lakelands Pty Ltd [2013] QCATA 49
Western Sydney Area Health Services v Edmonds [2007] NSWCA 16
APPEARANCES & REPRESENTATION:
These matters were heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
A tropical deluge replaced Townsville’s drought in February 2019. It was a mixed blessing for residents of suburbs such as Idalia, where the respondents (`the tenants’) then resided. Just one month earlier they had leased a house in Lakewood Drive Idalia (`the property’) from the appellants (`the Meyers’).
In the period 27 January to 8 February 2019 emergency releases of water from the city’s Ross Dam inundated several suburbs, including Idalia. According to the tenants flood waters invaded the subject property to a depth of between one metre[1] and 40 centimetres.[2] The Meyers disputes that estimate[3], but…
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- AGLC
- Meyer v Murchie [2020] QCATA 175
- Case
- [2020] QCATA 175
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court were whether the agreement was frustrated under section 305 of the relevant Act and, if so, whether the agent could discharge the tenants from future obligations. The Court found that the agreement was indeed frustrated by the flood emergency, leading to the discharge of all future obligations. The Tribunal's decision that the agent's email exchange effectively discharged the tenants from their remaining obligations was not unreasonable, given the circumstances. The Court emphasised that the agent's response, though somewhat oblique, amounted to a purported discharge of any remaining duties.
The Court dismissed the application for leave to appeal, upholding the Tribunal's decision. The Court found that the Tribunal had not erred in concluding that the agent had the authority to release the tenants from their remaining obligations. The Court noted that the Tribunal's decision was not unreasonable, given the evidence and the circumstances of the case. The Tribunal had properly exercised its functions, and the application for leave to appeal was accordingly dismissed.
Orders
Orders of the court
The application for leave to appeal is dismissed.
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
It is not seriously suggested that this agreement was not frustrated, within the meaning of section 305. The validity of the tenants’ Form 13 notice is unchallenged.Effect of frustration The legal result of frustration is that the subject agreement is terminated at the point of frustration and all future obligations inter partes are discharged.[29][29]Codelfa (above) at [23]. If it were argued that some or all of the Meyers’ claims are not future obligations of the tenants, the answer lies in what the Tribunal describes as `the determining factor ... the email exchange’,[30] which I shall now consider.[30]T page 41 lines 23-24.The email exchange On 18 March 2019, some six weeks after the tenants left the property, there was an exchange of emails between a co-tenant (Ms Kerrison) and the Meyers’ agent, Mr Frank Munich of Aluka Property. According to Kerrison’s uncontradicted evidence:[W]e never received a request to return to the property to complete any further work. We informed [the agent] of the state of the property when we vacated. Given that there was a lot of mud and sewerage [sic] that was still on the floor we did take into consideration ... warnings about ... our health. And upon our discussions with [the agency] Aluka Property, they advised us that they didn’t expect us to complete things such as pest control, lawn mowing, or things that are generally completed on leaving a property, given the circumstances in which we vacated it.[31][31]T page 30 lines 40-45, T 31 lines 1-4. The Meyers do not dispute Kerrison’s claim that the above communication occurred, but they deny that it effectively discharged the tenants’ remaining obligations, if any. However, the following emails were exchanged between Kerrison and the Meyers’ agent Munich, as found by the judges of fact.[32] Proof of the agent’s attitude does not depend solely on Kerrigan’s oral evidence. Kerrigan[33] sought confirmation that `there was no requirement to complete the usual post-tenancy procedures”. [32]T page 41 liies 24-45.[33]Not Ms Meyers, as stated in a verbal slip in the course of the oral judgment at T page 41 line 26. Munich did not dispute Kerrison’s presumption of a full and final discharge, but responded:When a notice of intention to leave is issued due to non-liveability, the lease ends the same day ... the property is handed back to the agency. Our agency did not request that you carry out any pest control, lawn mowing, etcetera, when you handed in your notice and returned the keys. While an exquisite legal analyst might regard this response as somewhat oblique, the Tribunal, in all the circumstances, and not unreasonably, found that it was a purported discharge of any remaining duties of the tenants to their landlords:[I]t was obvious at that stage then that Ms Kerrison and Ms Murchie believed that the agent had told them that they didn’t have to complete any of these items ... [T]hat was aside from the fact that there were difficulties, in any event, for the parties to return to the property ... and do any cleaning work.[34][34]T page 42 lines 1-5 (the Tribunal).