Penfold v Firkin & Balvius - [2023] QCATA 11

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Penfold v Firkin & Balvius [2023] QCATA 11

PARTIES:

Todd Penfold and inga penfold

(Applicants)

v

wayne murray firkin and kalie maree balvius

(Respondents)

APPLICATION NO/S:

APL231-21

ORIGINATING APPLICATION NO/S:

MCDO11/21 (Caloundra)

MATTER TYPE:

Appeals

DELIVERED ON:

22 February 2023

HEARING DATE:

21 June 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Forrest SC

ORDERS:

1.     Leave to appeal granted.

2.     Appeal allowed.

3.     The Orders made on 19 July 2021 are set aside.

4.     The original application is otherwise dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – FROM QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – BY LEAVE OF TRIBUNAL – where the Applicant seeks to appeal a decision by a Magistrate sitting as a Tribunal Member in a Minor Civil Dispute – Minor Debt – where leave is granted

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT – whether the Respondents’ tenancy was wrongfully terminated early – where the Respondents seek to be compensated for money they spent on improvements – whether the Tribunal had jurisdiction at first instance under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) – where the appeal is allowed and the original application is dismissed

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 13, 142(3)(a)(i) and (3)(b)

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), ss 184, 209, 291, 415, 416, 419, 420 and 426

Action Health Centre Pty Ltd v Searipple Holdings Pty Ltd [2022] QCATA 7, cited

Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277, applied
Owen v Menzies [2013] 2 Qd R 327, [2012] QCA 170, cited
Pavey & Mathews Pty Ltd v Paul (1987) 162 CLR 221, cited

Pickering v McArthur [2005] QCA 294, cited

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

This is an application for leave to appeal and, if leave is granted, an appeal against the orders of a Magistrate sitting as a Tribunal Member in a Minor Civil Dispute – Minor Debt matter.
Critically though, the dispute between the parties arises out of a tenancy agreement between them in respect of land and premises in the hinterland of the Sunshine Coast. The matter came before the Tribunal by way of an Application in Form 3. Such a form commences matters in the Minor Civil Dispute – Minor Debt jurisdiction of the Tribunal. However, this is problematic because the way the Respondents set out or “pleaded” their application, it is plainly a claim by a tenant against a landlord for payment of money compensating them for loss allegedly suffered as a consequence of an alleged wrongful breach of their tenancy agreement. I will return to this issue in due course.
FACTUAL BACKGROUND
The Applicants were the registered proprietors of real property on the Sunshine Coast. In…

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: [2023] QCATA 11
Decision Date: 22 February 2023

CaseChat Overview and Summary

The matter before the court involves an appeal by Penfold (the Applicant) against the decision of the Queensland Civil and Administrative Tribunal (QCAT) regarding a dispute with Firkin and Balvius (the Respondents). The primary issue in this case was whether the Respondents were entitled to compensation for expenses incurred on improvements to the property, which they claimed were made under the assumption that their tenancy would continue. The QCAT had originally awarded the Respondents 50% of the improvement costs as compensation. The Applicant contested the QCAT’s jurisdiction to award such compensation, arguing that the claim was not within the scope of a minor civil dispute as defined under the Queensland Civil and Administrative Tribunal Act 2009.

The court had to determine if the QCAT had the jurisdiction to hear and decide on the Respondents’ claim for compensation in the first place. The court examined the nature of the claim, whether it fell under the minor civil dispute jurisdiction, and if the QCAT had the authority to make such an award. The court found that the QCAT had overstepped its jurisdiction by awarding compensation for the improvements made by the Respondents. The court held that the QCAT’s decision to award 50% of the improvement costs to the Respondents was beyond its authority as it did not fall under the minor civil dispute jurisdiction. Consequently, the court allowed the appeal, set aside the QCAT’s orders, and dismissed the Respondents’ application.

In conclusion, the court granted the Applicant leave to appeal and allowed the appeal. The orders made by the QCAT on 19 July 2021 were set aside, and the Respondents’ claim for compensation was dismissed. The decision highlights the importance of jurisdictional boundaries within administrative tribunals and the need for careful consideration of the nature of claims when determining jurisdiction.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. The Orders made on 19 July 2021 are set aside.

Background

Background to the litigation

Critically though, the dispute between the parties arises out of a tenancy agreement between them in respect of land and premises in the hinterland of the Sunshine Coast. The matter came before the Tribunal by way of an Application in Form 3. Such a form commences matters in the Minor Civil Dispute – Minor Debt jurisdiction of the Tribunal. However, this is problematic because the way the Respondents set out or “pleaded” their application, it is plainly a claim by a tenant against a landlord for payment of money compensating them for loss allegedly suffered as a consequence of an alleged wrongful breach of their tenancy agreement. I will return to this issue in due course. FACTUAL BACKGROUND The Applicants were the registered proprietors of real property on the Sunshine Coast. In 2019, they entered into a standard form General Tenancy Agreement with the Respondents for a twelve-month term. In March 2020, when the pandemic had just started, they entered into a fresh lease agreement for a two year term at $1,200 per week, again using the standard form General Tenancy Agreement. The rights and obligations of landlords and tenants in Queensland are governed by the provisions of the Residential Tenancies and Rooming Accommodation Act 2008 (“the RTRAA”), but also the terms of the written tenancy agreement between them, and the general law, to the extent that the terms of the tenancy agreement and the general law are not inconsistent with the provisions of the RTRAA. In the relevant second General Tenancy Agreement between the parties, under the heading “Part 3 Special terms” the following was included:-The lessor is aware and agrees to the tenant granting guests a licence to occupy part of the rented premises. For example, the tenant can list the property on Airbnb, take bookings and therefore allow guests to stay for a period of time. The lessor has objected to Sunshine Coast Council rates increase due to the Airbnb criteria being added to the existing rates. If this objection is not approved, the lessee agrees to pay the difference between the General Category 18 rate and the General Category 18RT. Relevantly also, under the heading “Clause 27 Fixtures or structural changes – ss 207-209” read as follows:-(1) The tenant may attach a fixture, or make a structural change, to the premises only if the lessor agrees to the fixture’s attachment or the structural change. (2) The lessor’s agreement must be in writing, describe the nature of the fixture or change and include any terms of the agreement. Examples of terms – ·That the tenant may remove the fixture ·That the tenant must repair damage caused when removing the fixture·That the lessor must pay for the fixture if the tenant cannot remove it(3) If the lessor does agree, the tenant must comply with the terms of the lessor’s agreement. (4) The lessor must not act unreasonably in failing to agree.(5) If the tenant attaches a fixture, or makes a structural change, to the premises without the lessor’s agreement, the lessor may-(a)Take action for a breach of a term of this agreement; or (b)Waive the breach (that is, not take action for the breach) and treat the fixture or change as an improvement to the premises for the lessor’s benefit (that is, treat it as belonging to the lessor, without having to pay the tenant for it.)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Applicants opposed the claim, asserting that they had valid grounds to serve the Form 12 because the Respondents had breached clause 21 of the Tenancy Agreement by running commercial health and wellness retreats on the property and by causing nuisance that interfered with the peace of neighbours. They also asserted that they had never agreed to compensate the Respondents for any of the costs involved in any of the work they undertook and relied on Clause 27 of the Tenancy Agreement to argue they did not have to pay for any of the work. They also said they relied upon the absence of Council approval for the Respondents to run a commercial health and wellness retreat at the property. Relevantly, clause 21 of the Tenancy Agreement provides as follows:-(1) The tenant may use the premises only as a place of residence or mainly as a place of residence or for another use allowed under a special term. (2) The tenant must not – (a)Use the premises for an illegal purpose; or (b)Cause a nuisance by the use of the premises; or (c)Interfere with the reasonable peace, comfort or privacy of a neighbour of the tenant; or (d)Allow another person on the premises to interfere with the reasonable peace, comfort or privacy of a neighbour of the tenant. THE TRIBUNAL’S FIRST INSTANCE DECISION Her Honour, Magistrate Benson, sitting as the Tribunal at first instance, heard and determined the matter and delivered her decision orally on 19 July 2021. It is to be remembered that s 13(1) of the Queensland Civil and Administrative Act 2009 (“the QCAT Act”) requires the Tribunal, when hearing a minor civil dispute, to make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute. I respectfully have no doubt that is what the learned Magistrate sincerely believed she was doing. In her oral reasons, her Honour recited her findings of fact, including that the costs of the work done by the Respondents amounted to $32,679.34. She also found that at no stage had the Applicants agreed to contribute to those costs. Her Honour did not discuss the important question of jurisdiction and she did not discuss, in any way clauses 21 and 27 of the General Tenancy Agreement. Her Honour simply went on to assert that the questions for her to decide were whether the Respondents had lost money as a result of work they carried out and the lease being ended earlier than its term and whether the Applicants have benefited in some way from the work that has been carried out. Her Honour went on to find that the work done clearly improved the property, enhancing its look and the services and facilities available on the property. Her Honour found:-·That the Applicants have benefited “to some extent from the improvements that have been made”;·That the Respondents have lost financially as a result of carrying out those improvements;·That the Applicants were aware of the improvements, were notified of them as they were progressing, either consented to or did not object to those improvements taking place;·There was no evidence clearly indicating how much income the Respondents lost between January 2021 and March 2022; ·That the dispute about the bond was subject to separate proceedings before the Tribunal; ·That there were costs to the Applicants of remediation work having to be done on the “soak well” that had been installed by the Respondents;·That in all the circumstances, she was satisfied that the Applicants have received a financial advantage “to some degree” [emphasis added] for the work that had been carried out, though it was difficult to precisely calculate what that might be;·That an appropriate way to deal with it was to grant the Respondents compensation equal to 50% of what they had spent on the works – 50% being $16,339.67.

Ratio Decidendi

Legal Principle Established

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