Nejad v Rao
[2012] QCATA 35
•23 February 2012
| CITATION: | Nejad v Rao [2012] QCATA 35 |
| PARTIES: | Nosratiolah M Nejad (Applicant/Appellant) |
| v | |
| Fina Rao (Respondent) |
| APPLICATION NUMBER: | APL211-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 23 February 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Grant leave to appeal; 2. Allow the appeal; and, 3. Set aside the decision of 4 May 2011. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where the Respondent had brought proceedings against the Applicant for a refund of the bond monies and compensation for other costs – where orders were made against the Applicant for the release of the bond and payment of other costs – where the Applicant claims he is not the tenant under the lease – whether the order was made against a person who was not the tenant named in the relevant tenancy agreement – whether the error warrants a grant of leave to appeal Queensland Civil and Administrative Tribunal Act2009, ss 32, 147 Cachia v Grech [2009] NSWCA 232 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).
REASONS FOR DECISION
Ms Rao owns a unit at 32 Connor Street Stanthorpe. She brought proceedings against Mr Nejad in QCAT’s Minor Civil Disputes jurisdiction for a refund of the bond held by the Residential Tenancy Authority to cover what she claimed were rent arrears and compensation caused during Mr Nejad’s tenancy.
Mr Nejad did not appear at the hearing of the matter before a Magistrate, sitting as a QCAT Ordinary Member, on 4 May 2011. After hearing from Ms Rao, the learned Magistrate gave a decision, with subsequent written reasons, to the effect that: she was satisfied that the application had been served upon him; that Ms Rao’s evidence, on oath, warranted orders in her favour that the rental bond of $640.00 be released to her; and, that Mr Nejad also pay $980.00 for the cost of carpet cleaning, a replacement carpet, and rent arrears.
Mr Nejad seeks leave to appeal that decision. He says he was not the tenant, and the correct tenant is ‘Ms Batoul Aghdasi-Yeganesh’ (sic). The submissions filed by the parties are not as detailed as they might be, but it appears that Mr Nejad and Ms Aghdasi-Yeganeh, are related and may indeed be husband and wife. (There is also, amongst the Appeal Tribunal papers, a letter from QPILCH dated 14 October 2011 apparently written on behalf of Ms Aghdasi-Yeganeh in which it says that she is ‘the wife of Mr M-Nejad’).
The copy of the General Tenancy Agreement presented to the learned Magistrate does name ‘Batoul Aghdasi-Yeganeh’ as the tenant, although the typed name beside the tenant’s signature is ‘Mrs B Nejad’.
In another document presented to the learned Magistrate Ms Rao says: ‘Mrs Batoul Aghdasi-Yeganeh was a tenant at Unit 5/32 Connor Street Stanthorpe’. Further, in another document that appears to be a copy of Ms Rao’s application to the RTA for a refund of the residential tenancy bond, the name ‘Mrs Batoul Aghdasi-Yeganeh’ appears as the name of tenant. She did the same thing in a ‘Dispute Resolution Request’ under the Residential Tenancies and Rooming Accommodation Act 2008 (RTRAA).
In her application to QCAT filed on 11 April 2011 at Stanthorpe she appears to have initially named ‘Mr Nosratiolah M-Nejad’ as the respondent. There is, however, also some crossing out and rewriting and it is possible that she originally named Mr Nejad and, also, Mrs Batoul M-Nejad.
In any event, the Tribunal file shows a notice of the hearing was sent to ‘Nosratiolah M-Nejad’, and that is the name which appears in the Reasons of the learned Magistrate, and her subsequent order.
In her submissions to the Appeal Tribunal Ms Rao says that ‘the applicants Mr Nosratiolah M Nejad and Batoul Aghdasi-Yeganeh applied for the unit in Stanthorpe…’. She goes on to say that they lived in the unit for 7-8 years and then Mr Nejad moved to Brisbane because of ill health, but Ms Batoul remained in the unit until she vacated.
The fact Mr Nejad moved out of the unit at some time is consistent with something that appears in his written submissions to the Appeal Tribunal, namely that, during the tenancy, he moved into a nursing home.
The Tenancy Agreement underlying Ms Rao’s application to the Tribunal was for a fixed term from 15 March to 30 December 2010. On its face, only Mrs Batoul Aghdasi-Yeganeh is named as the tenant and, in light of other information gleaned from the material, it is clear that her signature on the document, as ‘Mrs B Nejad’ is simply a variant of her name (and consonant with her being married to Mr Nejad).
The Residential Tenancies and Rooming Accommodation Act2008 (‘RTRAA’) requires that these agreements be in writing.[1] The RTRAA is prescriptive about the requirements for entering into and establishing residential tenancies, and in respect of the issuing of notices and commencing proceedings. It is inescapable that the proceedings brought by Ms Rao in QCAT named, as respondent, a person who was not the tenant named in the agreement, and that a decision was erroneously made against that person.
[1] Residential Tenancies and Rooming Accommodation Act2008, s 61.
While Ms Rao’s apparent error is understandable, as she says in her submissions she prepared the Tenancy Agreement and as that document, and her subsequent correspondence with the RTA also show, she was aware that Mrs Aghdasi-Yeganeh was the only named tenant. The mistake seems to have occurred when she was completing the application to QCAT.
The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at 2.
[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
As the analysis of the available information set out above shows, it is compelling that proceedings were brought, and a decision made, against a person who was not the tenant named in the relevant tenancy agreement. That error warrants a grant of leave to appeal, and an order that the appeal be allowed.
Under s 147 of the QCAT Act an appeal that, as here, is premised on a question of fact, must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the Appeal Tribunal. The Tribunal may confirm or amend the decision, or set it aside and substitute its own. It is apparent that the problem here has arisen because Ms Rao named a person who was not the tenant, under the tenancy agreement, in her application to QCAT. The material is sufficient, also, to make it clear that she could only obtain relief through proceedings against the correct tenant. In those circumstances there is no advantage in receiving further evidence, and the only appropriate order is to set aside the order made by the Tribunal.
It is regrettable that what seems to have been a simple error in the application to QCAT has these consequences, but the circumstances serve to highlight the importance of ensuring that Tenancy Agreements under the RTRAA properly record the names of all tenants, and that proceedings in the Tribunal are brought against the correct respondent.
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