Noosa Hot Properties.com Pty Ltd v Olopai
[2012] QCATA 201
•15 October 2012
| CITATION: | Noosa Hot Properties.com Pty Ltd v Olopai [2012] QCATA 201 |
| PARTIES: | Noosa Hot Properties.com Pty Ltd (Applicant/Appellant) |
| v | |
| David Teregeyo Olopai (Respondent) |
| APPLICATION NUMBER: | APL168-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 15 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is refused. |
| CATCHWORDS: | CONTRACTS – PARTICULAR PARTIES – PRINCIPAL AND AGENT – RELATIONS BETWEEN AGENT AND THIRD PERSONS – LIABILITIES OF AGENT – IN RESPECT OF CONTRACTS – OTHER CASES – where respondents rented premises – where appellants acted as agent for the lessor – where property flooded and was damaged – where Tribunal ordered agent to pay monies to tenant – where agent sought leave to appeal that decision – whether the Tribunal erred in fact – whether the agent was the proper respondent in the proceedings Queensland Civil and Administrative Tribunal Act 2009, ss 32, 42 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 the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).
REASONS FOR DECISION
David Olopai and Susan Olopai rented premises at Noosaville for one year from 13 September 2011. The tenancy was recorded in a General Tenancy Agreement under the Residential Tenancies and Rooming Accommodation Act2008 (‘RTRA Act’).
The Agreement showed Noosa Hot Properties.com Pty Ltd as the agent for the Lessor, Ms Jones.
Earlier this year the property flooded and was damaged. Mr and Mrs Olopai brought proceedings in QCAT’s minor civil disputes jurisdiction seeking an order terminating the Agreement; a reduction in rent; and, expenses associated with the flood damage, including cleaning costs and moving expenses, and the refund of the bond they had paid.
The matter was heard and determined by a Magistrate sitting as a QCAT Adjudicator at Maroochydore on 21 May 2012. Mr and Mrs Olopai appeared as did Mr Brian Hayes, a principal of Noosa Hot Properties.com Pty Ltd and Ms Janet Nawrecky, a Senior Property Manager.
The learned Magistrate found in favour of Mr and Mrs Olopai and ordered that the rental bond of $1,840.00 be repaid to them and, also, that Noosa Hot Properties.com pay a rent reduction of $828.00, moving expenses of $1,407.10, a flood insurance excess of $518.00 and administration costs of $102.76.
The effect of the decision was to award Mr and Mrs Olopai $2,855.86 – plus, of course, the refund of their bond.
Noosa Hot Properties.com seeks leave to appeal that decision. The Appeal Tribunal ordered that the application for leave to appeal (and the appeal, if leave is granted) would be determined on the papers and both parties have filed and exchanged written submissions.
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?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[3] 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?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]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.
Noosa Hot Properties.com contend that the learned Magistrate should not have ordered the agent to pay monies to the tenant, not least because the agent holds all rent monies and the like on trust for the lessor, and has disbursed those monies to her. It is also contended that factual findings made by the learned Magistrate were wrong.
It is plain from the audio recording of the proceedings that the learned Magistrate was satisfied that there was significant flood damage to the house, contents and surrounds on four occasions; that both the owner and the agent had prior knowledge of the propensity of the property to flood, but failed to disclose this information to the tenants; and, in short, that the tenants had made out their claim.
Nothing in the submissions from Noosa Hot Properties.com, or in the recording, suggests those findings were not reasonably open to the learned Magistrate and there is no basis for concluding that his findings of fact were against the weight of evidence, or unreasonable or irrational.
Nor does the agent’s other contention – that it was not the proper respondent in the proceedings and cannot be the subject of an order requiring the payment of money – stand scrutiny.
Firstly, the Agreement stipulates in clause 43(2) that unless a special term provides otherwise, the agent may stand in the lessor’s place in any application to the Tribunal by the lessor or the tenant and do anything else the lessor may do or is required to do under the agreement.
It is to be observed that the agent never applied to add the lessor as a party to the proceeding notwithstanding that it must have been aware, from the original QCAT proceedings, what Mr and Mrs Olopai were seeking. An application could have been brought by the agent to that end under s 42 of the QCAT Act. It is at least arguable that the agent is now prevented by law from raising this matter when it failed to offer it as a defence in the original proceedings, or move to add the lessor in those proceedings.
The nature of the agent’s position in proceedings of this kind is, in any event, addressed in the RTRA. Under s 206, before the tenants start occupation of premises the lessor or the lessor’s agent must give a written notice to the tenant stating the lessor’s name and address for service or, if the lessor has an agent who is authorised to stand in the lessor’s place in a proceeding, the agent’s name and address. That occurred here – these details are contained in the general tenancy agreement.
Under s 206(3) if details of the agent are given to the tenant, the agent stands in the lessor’s place for a ‘prescribed proceeding’ and the proceeding may be taken against the agent as if the agent were the lessor; and, a Tribunal may make an order against the agent as if the agent were the lessor.[5]
[5]Under cl 23 of the Residential Tenancies and Rooming Accommodation Regulation 2009, any application a tenant or lessor may make to this Tribunal is a ‘prescribed proceeding’.
It is clear that the learned Magistrate had clear statutory power to make orders against the agent. It follows that the application for leave to appeal must be dismissed.
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