Noosa Hot Properties.com Pty Ltd v Olopai - [2012] QCATA 201

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
Residential Tenancies and Rooming Accommodation Act2008, s 206
Residential Tenancies and Rooming Accommodation Regulation 2009, cl 23

Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

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,…

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 201
Decision Date: 15 October 2012

CaseChat Overview and Summary

The dispute in Noosa Hot Properties.com Pty Ltd v Olopai involved the appellants, acting as agents for the lessor of rental premises, and the respondents, the tenants. The appellants sought leave to appeal a decision by the Queensland Civil and Administrative Tribunal, which had ordered the appellants to pay the respondents certain monies following damage to the leased property caused by flooding. The central issue before the court was whether the Tribunal had erred in its decision to hold the appellants liable for the damages. Additionally, the court considered whether the appellants, as agents, were indeed the correct party to be held liable in the circumstances.

In its reasoning, the court examined the relationship between the parties, particularly the role of the appellants as agents. The court noted that under the principle of agency, an agent may be liable for contracts entered into on behalf of the principal if the third party reasonably believes the agent has authority. However, the court found that the Tribunal had correctly determined that the appellants were not the proper respondents in the proceedings. The Tribunal had concluded that the lessor, not the agent, was ultimately responsible for the damages caused by the flooding. Consequently, the Tribunal's decision to hold the appellants liable was erroneous.

The court concluded that the Tribunal had indeed erred in fact by holding the appellants liable, as the primary responsibility lay with the lessor. Additionally, the court held that the appellants were not the appropriate party to be held liable in the circumstances. Given these findings, the court refused the appellants' application for leave to appeal, upholding the Tribunal's original decision.

Orders

Orders of the court

1. The application for leave to appeal is refused.

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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