Quaresmini v Huang

[2022] QCA 133

SUPREME COURT OF QUEENSLAND

CITATION:

Quaresmini v Huang & Anor [2022] QCA 133

PARTIES:

LAURENCE JOHN QUARESMINI
(appellant)
v
YU-YIN HUANG
(first respondent)
YU-JU ANNE HUANG
(second respondent)

FILE NO/S:

Appeal No 3527 of 2022
SC No 1380 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 24 February 2022 (Applegarth J)

DELIVERED ON:

29 July 2022

DELIVERED AT:

Brisbane

HEARING DATE:

27 July 2022

JUDGES:

McMurdo and Bond JJA and Davis J

ORDERS:

1.   The appeal be allowed.

2.   The orders made on 24 February 2022, with the exception of order number 2, be set aside.

3.   The respondents pay the costs of the appeal.

4.   The application to adduce further evidence in this Court be refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – where the appellant commenced a proceeding in the Trial Division seeking an order that the respondents comply with s 365 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“RTRA”) – where at the hearing of that application the appellant and respondents agreed to consent orders – where, upon rehearing, there was a factual dispute about whether the respondents had complied with the consent orders – where the consent orders must be construed in the context of the RTRA – where, upon rehearing, the trial judge declined to make findings of fact about compliance with the consent orders – whether the judge should have made findings of fact – whether the application should be re-heard

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 363, s 365

COUNSEL:

S W Trewavas for the appellant
G M Elmore for the respondents

SOLICITORS:

Australian Law Partners for the appellant
Sterling Law for the respondents

1. McMURDO JA:  From 2018 the appellant rented from the respondents a house and land at Algester, which I will call the Property.  By early 2020, he was behind with his rent and in late 2021, he received from the respondents two Notices to Leave, each of which he ignored.  On 27 December 2021, by an order made by the Queensland Civil and Administrative Tribunal, the tenancy was terminated, and on 17 January 2022, a warrant of possession was executed by police officers.

2. Some of the appellant’s belongings remained on the Property.  In late January 2022, the appellant had managed to remove some of them, but not all of them, claiming that the respondents prevented him from doing so.

3. On 3 February 2022, he commenced the present proceeding in the Trial Division by an originating application. He asked for the Court to order that he and his staff be granted access to the Property to remove his belongings, including “access for heavy transportation vehicles to remove two 40 ft shipping containers and valuable contents, two large prime movers and remaining items (as listed on an annexure to the application).” He sought a further order that the respondents comply with s 365 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the Act).

4. Section 365(1) provides that if an interested person is dissatisfied with the way a former lessor has dealt with, or is dealing with, goods left on premises after a residential tenancy agreement has ended, that person may apply to “a tribunal” (which is defined to be QCAT) for an order for compensation or such other order as is appropriate. Section 365 was not so relevant to this proceeding as s 363. Section 363 applied here because goods which were not personal documents or money had been left on the rented premises after the tenancy had ended. By s 363(3), the former lessor is obliged to store the goods safely for a period of one month.[1] By s 363(4), if goods have not been reclaimed at the end of the storage period, the former lessor may sell or dispose of the goods although the owner may reclaim them ahead of such a sale, on paying removal and storage costs. Subsections 363(8), (9) and (10) regulate the disposition of the proceeds of the sale of the goods, entitling the former lessor to its costs of removal, storage and sale and to payment of any amount owed by the tenant under the tenancy agreement. In short, s 363 regulates the removal and disposition of goods left behind by the tenant, upon terms that ensure that the former lessor is not out of pocket, whilst at the same time not becoming the owner of the goods.

   [1]That being the “storage period” prescribed under the Residential Tenancies and Room Accommodation Regulation 2009 (Qld).

5. The originating application came before the primary judge on 15 February.  The appellant was not legally represented but the parties managed to agree upon a consent order which was then made in these terms:

   1.The Applicant be allowed access to the Property situated at 108 Dakar Road, Algester in the State of Queensland (the “Property”) including the dwelling house to conduct a preliminary inspection of the Property to identify the Applicant’s goods from 7:00am until 9:00am on Thursday 17 February 2022.  The Applicant shall be permitted to attend with a third party of their choice, and shall be permitted to remove items of the Applicant’s property during the preliminary inspection.

   2.The Respondents shall attend the Property with the Applicant during the Applicant’s preliminary inspection of the Property, and with a third party of their choice.

   3.The Applicant is granted further access to the Property, excluding the dwelling house, in order to collect the Applicant’s remaining property on Saturday 19 February 2022 from 9:00am until 5:00pm, and again on Sunday 20 February 2022 from 9:00am until 5:00pm.

   4.In the execution and compliance of Order 3, the Applicant shall remove all of the Applicant’s property, and all refuse and waste.  The Applicant shall observe all due care and attention required in the removal of the Applicant’s property.

   5.The Applicant shall file a Notice of Discontinuance in respect of the Application 1380/2022 within seven (7) days of compliance with Orders 3 and 4.

   6.Any of the Applicant’s property abandoned after compliance with these Orders shall be treated as abandoned property and the Respondents will be entitled to deal with such property according to law.

6. Unfortunately, what was ordered did not occur.  The appellant did not remove all of his items by the end of the weekend of 19 and 20 February.  He sought to explain that in several ways.  He described his difficulties with the failure of certain equipment, which delayed him in his task of removal, as well as the wet weather on that weekend.  More significantly, he also complained that the respondents, and others assisting them, had deliberately impeded his removal of the items by surrounding the house with vehicles and trailers making it difficult for the appellant’s heavy vehicles to access the Property, and by refusing entry to persons who were accompanying the appellant on the basis that, under the terms of the order of 15 February, it was only the appellant who was entitled to come onto the Property over that weekend.

7. So the appellant filed a further application which came before the same judge on 24 February, in which he sought an order that the respondents comply with the order of 15 February and that they be restrained from disposing of any of the Property which was subject to that order.

8. The primary judge received affidavit evidence from the appellant and the second respondent.  There was a substantial conflict of evidence as to whether, as the appellant alleged, he had been impeded by the respondents and their associates from performing the task of the removal of these items.  The appellant had succeeded in removing some items, but what remained on the premises included a number of pieces of heavy machinery or machinery parts.

9. The appellant was then still without legal representation.  At the commencement of this second hearing, counsel for the respondents provided, in the usual way, an outline of argument, which submitted that the appellant’s second application be dismissed with costs and that for the removal of any doubt, there should be a further order that the items which remained on the Property “vest absolutely in the first respondent.”

10. From the affidavit of the second respondent, the judge had evidence that on the Saturday morning, there were heated discussions between the parties as to who would be given access to the Property.  The second respondent said that she agreed to the appellant being accompanied by a man called John and by the appellant’s brother, but that later in the morning, two women (one being the appellant’s partner) arrived at the Property to assist him.  The second respondent said that she initially refused those women entry because they were not wearing appropriate personal protective equipment, but upon the appellant’s insistence, she allowed them to enter.  She said that on the Sunday, only the man called John and a woman arrived at the Property before the appellant and his brother arrived after midday.  In her affidavit, she asserted that in her view, the appellant “simply wasted time over the weekend …., spending most of the time either repairing his own equipment or vacating the Property to borrow another person’s equipment.”  Her affidavit ended with a submission that because the appellant had greatly contributed to the situation in which he found himself, “His own conduct in delay and laches should be taken into account” in dismissing his application.

11. In addition to the contested evidence of the appellant, the judge had an exchange during the appellant’s submissions, in which the judge suggested to the appellant that had he organised himself better, he could have been at the Property throughout the Sunday, to assist those whom he described as his crew.  The appellant seems to have agreed to that suggestion, before adding “we thought we’d be given access to go in with our crew and remove the stuff.”  In response, the judge told the appellant that he was satisfied that he had been given that access.

12. His Honour then gave an ex tempore judgment which dismissed the originating application and the further application filed on 21 February.  His Honour also made an order, largely as suggested for the respondents, that “to remove any doubt”, certain items which remained on the Property were to “vest absolutely” in the first respondent “for her to deal with as she would be entitled to at law.”  This is an appeal against those orders.[2]

    [2]The judge further ordered that the appellant be permitted to collect a trailer located at a certain storage facility, which is not the subject of the appeal.

13. In his reasons for judgment, his Honour referred to the factual contest about what had happened not only on the weekend in question, but on the preceding Thursday and Friday.  However, he said, he was not required to resolve “every minor factual dispute”.  As to the issue of who was entitled to be on the Property, his Honour considered that it was clear that the agreement, embodied in the consent order, “did not permit the [appellant] to have what might be referred to as his entire crew come there,” and his Honour considered that it was entirely reasonable for the respondents not to want additional people on the site who were not suitably protected.

14. His Honour reasoned that the appellant’s ability to comply with the orders requiring him to remove all of his property had been affected by the appellant’s lack of preparation for the task, as well a misplaced expectation that he would be able to restore a certain piece of equipment for that purpose.  The judge added that the appellant had not taken an opportunity to go onto the Property on the Friday to retrieve that equipment for repair.

15. His Honour referred to the fact of discussions and negotiations on the property, which he apprehended had been “rather heated”, as to how matters would proceed on the Saturday and who would be allowed onto the Property.  However, he said, it was apparent that for some time access was allowed to the appellant and his associates on the day.  He said that the appellant’s absence from the Property on the Sunday morning was due to the appellant’s own planning.

16. His Honour continued:

    “I am satisfied that the [appellant], despite what he describes as some obstruction, had sufficient opportunity to remove items from the property in compliance with the order at various times on Thursday, Saturday and Sunday. It is unnecessary for me to address issues about who said what and when at the different meetings or encounters on Saturday and Sunday. It is sufficient to conclude that, one way or another, the [appellant] was offered and allowed sufficient periods for himself or others assisting him to remove the items.”

    (Emphasis added.)

17. His Honour explained his vesting order as, in his view, simply, giving effect to the agreement that was struck between the parties on 15 February, so that in accordance with paragraph 6 of the orders made on that date, the appellant should be treated “as having abandoned property” and “The respondents ought to be entitled to deal with that property according to law.”

18. Critical to this appeal is the effect of the orders made on 15 February. Those orders are not the subject of this or any other appeal. It was submitted by counsel now appearing for the appellant that the orders should be read as subject to the operation of the Act, upon the suggested basis that it is not open to parties to oust the operation of the Act by their agreement. However, on 15 February there was more than an agreement between the parties. There were orders made by the Court which, as I have said, are not challenged, and which must be given effect. That said, the orders must be interpreted in the context of the statute which then governed the respective positions of the parties. It is in the context of s 363 that paragraph 6 of the orders of 15 February must be interpreted.

19. The orders must also be interpreted in the context of the dispute between the parties which was the subject of the proceeding.  This was not a dispute as to the ownership of the items. By the originating application, the appellant sought to prevent the respondents from exercising their powers to deal with the items under s 363. The parties agreed to a process by which the exercise of those powers would be avoided, by the appellant’s removal of the items from the Property by a certain time. By order number 6, they provided for the contingency that some of the items would not be removed, for which they agreed that any such items should be treated as “abandoned property” with which the respondents would be “entitled to deal … according to law.” In my respectful opinion, the judge was wrong to equate the effect of that order with the ownership of the items vesting in one or both of the respondents. The regime to which the parties agreed, and which was put in place by the orders of 15 February, was effectively for the stay of the respondents’ dealing with the items under s 363 until after 20 February, and then only to the extent that items had not been removed by the appellant.

20. Consequently, the vesting order which was made on 24 February was made upon an erroneous interpretation of the orders made on 15 February, and at least for that reason, it should be set aside.

21. However there is a further reason for allowing this appeal.  It is that order number 6 took effect only in respect of items “abandoned after compliance with these Orders”, and there was an issue to be decided as to whether the respondents had complied with the orders.  The respondents were ordered to allow access to the Property on the Saturday and Sunday between the hours of 9 am and 5 pm.  Upon the evidence of the appellant, for some of that time the respondents prevented or impeded that access, and on his evidence, that delayed the performance of his task.

22. The judge reasoned that any obstruction by the respondents did not deny the appellant sufficient opportunity to remove his items, because within the time that he was allowed, he could have performed the tasks with proper preparation and management.

23. I respectfully disagree with that reasoning.  The appellant was entitled to access, without obstruction, at all times between 9 am and 5 pm on the days in question.  The issues for the judge were whether that access was not fully provided and, if not, to what extent, and whether that non-compliance with the orders by the respondents made a difference to what was ultimately removed by the appellant in the way in which he went about doing so.  In my respectful opinion, the judge was in error in making final orders which disposed of the proceedings before determining those issues.

24. The judge ruled that the agreement, and thereby the orders made on 15 February, did not permit the appellant to have his entire crew on site.  Such a limitation is not apparent from the terms of the orders.  In any case, it appeared that time was lost on the Saturday morning whilst the second respondent maintained that the appellant alone was entitled to be on the Property.  Her stance in that respect was incorrect, because having regard to the nature and scale of the items to be removed, it would be unrealistic to expect that this would be performed by one person, and the originating application had sought access specifically for heavy transportation vehicles to remove the items.

25. The judge saw it unnecessary to determine whether, as the appellant contended, vehicular access to the Property was blocked for some of the available period.  But again, that is a question which ought to have been answered.

26. It must be said that when the history of this dispute is considered, involving as it does a long series of several delays and defaults on the part of the appellant, the judge’s inclination to finally dispose of this dispute on the day of the hearing can be readily understood.  Nevertheless, the appellant’s evidence raised substantial factual questions for determination, and because they were not answered, the orders challenged by this appeal should not have been made.

27. I would order that the appeal be allowed, that the orders made on 24 February 2022 (with the exception of order number 2) be set aside and the respondents pay the costs of the appeal.  In this Court the appellant applied to adduce further evidence going to the question of whether the respondents had failed to comply with the orders of 15 February.  The appellant could seek to tender that evidence (and such other evidence as he may be advised) upon the re-hearing of his application in the Trial Division.  The application to adduce that further evidence in this Court should be dismissed.

28. BOND JA:  I agree with the reasons for judgment of McMurdo JA and with the orders proposed by his Honour.

29. DAVIS J:  I agree with the reasons of McMurdo JA and with the orders proposed by his Honour.