Oxenbridge v First National Springfield
[2015] QCATA 122
•18 August 2015
| CITATION: | Oxenbridge v First National Springfield [2015] QCATA 122 |
| PARTIES: | Jane Oxenbridge (Appellant) |
| v | |
| First National Springfield (Respondent) |
| APPLICATION NUMBER: | APL086-15 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 31 July 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Carmody Dr Forbes, Member |
| DELIVERED ON: | 18 August 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | THE TRIBUNAL ORDERS THAT: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The subject decision is set aside. 4. The matter shall be reheard at a place and time to be advised by the Tribunal, in writing, to each party. |
| CATCHWORDS: | APPLICATION FOR LEAVE TO APPEAL – RESIDENTIAL TENANCY DISPUTE – where originating application stated incorrect address for service – whether effective service – where no appearance of respondent/appellant at hearing – where decision in default of appearance – where appellant contends that she had no notice of trial – where no evidence to discredit that contention – whether leave to appeal should be granted and appeal allowed – where subject decision set aside and rehearing ordered Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 93 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
JUSTICE CARMODY: I have had the considerable advantage of reading the reasons for decision of Dr J R Forbes, Member, in relation to this application for leave to appeal and appeal. I agree with the decision and orders of Dr Forbes for substantially the same reasons he has articulated.
DR J R FORBES, MEMBER: The issue in this appeal is simple and fundamental. Was the initiating process[1] duly served upon the appellant? If not, the present judgment against her cannot stand.
[1]Application for minor civil dispute – residential tenancy dispute T6/15, filed on 5 January 2015. That document names Peter and Delma O’Brien as the applicants. The application for leave to appeal names the landlords’ agent, First National Springfield (more precisely described as Shakia Pty Ltd trading as First National Springfield – see tenancy agreement Item 3) as sole respondent. A standard clause in the relevant tenancy agreement (Clause 43) authorises the agent to sue on behalf of its principals.
On 1 February 2014 appellant entered into a general tenancy agreement with Peter and Delma Brien (the landlords), with respect to premises at 2/29 Chelhk Crecent Collingwood Park, Queensland.
On 13 October 2014 the landlords’ agent, First National Springfield, (National) served a Notice to Remedy Breach[2] upon the appellant. A Notice to Leave[3] followed on 4 November 2014, and on the 7 November 2014 the appellant gave Notice of Intention to Leave[4]. For present purposes, at least, there is no suggestion that any of those notices was irregular. The appellant vacated the premises on 21 November 2014 and moved to Goodna.
[2]Residential Tenancies and Rooming Accommodation Act 2008 (RTA) s 325, Form 11.
[3]RTA ss 277(3), 281.
[4]Ibid s 302 Form 13.
On 5 January 2015 the respondent commenced proceedings against the appellant for cleaning, repairs etc., claiming a total of $2,296.38.
In the primary application the appellant’s address for service was stated to be as 169 Stuart Street, Goodna. In fact, her correct address at all material times was 196 Stuart Street Goodna. The latter address appears in several documents filed by the appellant in this case.[5]
[5]Namely, application for waiver of fees, filed 13 February 2015, application for stay of decision filed 4 March 2015, application for leave to appeal filed 4 March 2015, and affidavit of service of application for leave, filed 30 March 2015.
The matter was heard on 28 January 2015. The landlords were represented by Mr Z J Turner of National; there was no appearance by or for the appellant.[6]
[6]Transcript of hearing 28 January 2015 (Transcript), page 2 lines 9-11, 28-32, page 8 line 44.
The Tribunal proceeded to enter default judgment against the appellant[7].
[7]QCAT Act s 93.
Notice of that decision was directed to the appellant at the address for service supplied by the respondent, namely 169 Stuart Street, Goodna.
The respondent says that the appellant’s address for service on the primary application is the address she gave to National when she vacated the Collingwood Park premises.[8]
[8]Transcript page 2 lines 31-32; email Turner to Rebecca Jackwitz 6 February 2015 at 9.49am; email Turner to Richlands Court 24 February 2015 at 3.35pm.
The appellant admits[9] that she initially gave National an incorrect forwarding address, namely 169 Stuart Street, Goodna. On 1 December 2014 she wrote a letter to an unidentified addressee stating that I would like the cost for the rest of cleaning at 2/29 Cheik Cres [sic] to be taken out of the bond please. That note records her address (incorrectly) as 169 Stuart Street Goodna.
[9]By her agent or next friend, Rebecca Jackwitz, of the Red Cross Homestay Program, Booval, email Jackwitz to Turner 5 December 2014 8.24am; email Jackwitz to Turner 6 February 2015 at 1.23pm.
However, on 5 December 2014, one month before these proceedings commenced, the appellant’s social worker, Rebecca Jackwitz, emailed National stating: Jane has asked me to pass on her forwarding address. The address she provided last week was incorrect. Jane’s new address is 196 Stuart Street, Goodna.[10]
[10]Email Jackwitz to Turner 5 December 2014 at 8.24am.
Evidently this message was overlooked when the primary application was prepared, and presumably any attempt to serve that document was directed to 169 Stuart Street. But the original file, as sent to QCAT’s Brisbane registry by Richlands Magistrates Court (where the hearing took place) does not include an affidavit of service of that application, so that it is at least possible that it was not served at all, even at the wrong address.
The appellant now seeks leave to appeal, pleading that:
I never received any court paperwork pertaining to the court hearing that was heard in my absence with a decision being made against me.
That claim is consistent with her submissions to the Tribunal on earlier occasions.[11] She asks that the matter be reheard in my presence.
[11]Application for reopening 13 February 2015, application to stay decision filed 4 March 2015.
When the appellant failed to appear, the following exchange occurred:
Adjudicator LeMass: What address have you got for them?
Mr Turner: For them, it’s in Goodna.
Adjudicator: There it is, Stuart Street Goodna. How do you know they’re there, Mr Turner?
Mr Turner: That was the – sorry, the forwarding address left on the vacate envelope.[12]
[12]Transcript page 2 lines 23-32.
Although neither party to that exchange specified a street number, the Adjudicator’s observation, There it is ... doubtless refers to the incorrect address in the notice of dispute, which he reasonably, albeit mistakenly, deemed correct.
At all events, there is no evidence that the primary application was delivered to the correct address, and no evidence to discredit the appellant’s repeated claim that she had no notice of the hearing.
The absence of due service is a fundamental and fatal error of law, and it would be otiose to recite authority to that effect. The error is not cured by the apparent fact that the appellant seems prepared to concede some, but not all of the respondent’s allegations.[13] In the circumstances, leave to appeal must be granted, the appeal allowed, the primary decision set aside, and a rehearing ordered.
[13]See the appellant’s note of 1 December 2014, quoted above, and her agent’s statement that “there are a few items that Jane will be disputing”: email Jackwitz to Springfield 5 December 2014 at 8.24am.
ORDERS
The Tribunal orders that:
1.Leave to appeal is granted.
2.The appeal is allowed.
3.The subject decision is set aside.
4.The matter shall be reheard at a place and time to be advised by the Tribunal, in writing, to each party.
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