Rental Express Pty Ltd v Christensen
[2012] QCATA 225
•12 November 2012
| CITATION: | Rental Express Pty Ltd v Christensen [2012] QCATA 225 |
| PARTIES: | Rental Express Pty Ltd (Respondent/Appellant) |
| v | |
| Joseph Hillary Christensen (Applicant/Respondent) |
| APPLICATION NUMBER: | APL015-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 12 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The award of $12,255 against Rental Express Pty Ltd, made on 19 October 2011, is set aside. 4. The substantive application is remitted for hearing before an Adjudicator not previously concerned with this case. |
| CATCHWORDS: | ADMINISTRATIVE LAW – ADMINSTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – OTHER MATTERS – where judgment entered against agent instead of principal – where application for leave to appeal from refusal to reopen – whether leave should be granted – whether proceedings should be reopened – whether reasonable explanation for non-appearance at hearing Queensland Civil and Administrative Tribunal Act 2009, ss 32, 137, 138, 140, 142 Arnold Electrical & Data Installations Pty Ltd v Logan Area Group Apprenticeship/Traineeship Scheme Ltd [2008] QCA 100 Darling Casino Ltd v NSW Casino Control Authority (1997) 143 ALR 55 Drew v Bundaberg Regional Council [2011] QCA 359 Noosa Hot Properties.com Pty Ltd v Olopai [2012] QCATA 201 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
This is an application for leave to appeal[1] from:
(i) a refusal to reopen proceedings in which Joseph Hillary Christensen was awarded $12,255 against Rental Express Pty Ltd (Rental Express); and,
(ii) the decision to make that award.[2]
[1] Required by QCAT Act, s 142(3)(a).
[2]Application for leave to appeal filed 27 January 2012, Part C: “We are appealing a court decision made on 19/10/2011. ... [An] application to re-open was refused on 25/11/2011, we are appealing to have this case re-heard ...”
The first ground of appeal may be disposed of at once. The application for reopening was refused on 25 November 2011. Subsection 139(5) of the QCAT Act provides:
The Tribunal’s decision on [a reopening application] is final and can not be challenged, appealed against, set aside, or called in question in another way, under the Judicial Review Act 1991 or otherwise.
While a privative clause of that kind is not completely immune from judicial review[3], it is indisputable that subsection 139(5) precludes an appeal to the Tribunal. The first ground of appeal must fail.
[3]R v Medical Appeal Tribunal; ex parte Gilmore [1957] 1 QB 574 at 583, 584; Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168; Darling Casino Ltd v NSW Casino Control Authority (1997) 143 ALR 55.
I turn to the second ground of appeal. The award was for damage to a Persian rug, allegedly caused by a faulty air conditioner in residential premises leased by Christensen from T & M Strigas in May 2009. Rental Express, as the Strigas’ agent, arranged the lease on their behalf. There is no evidence of how long it took for the damage to occur, or of any steps that might have been taken to remove the rug from its cause.
After failing to recover his loss from insurers, Christensen commenced these proceedings in February 2011. The landlords were not joined as respondents.
The matter came before an Adjudicator on 11 March 2011; Mr Christensen appeared in person, and Ms Barrow represented Rental Express. After some discussion the Adjudicator adjourned the proceedings for Christensen to produce better evidence of quantum. At the same time the Adjudicator broadly hinted that the landlords, not Rental Express, might be the proper respondents.[4] But that suggestion is contrary to the rather obscurely headed section 206 of the Residential Tenancies and Rooming Accommodation Act 2008[5] which provides:
[4]Transcript of hearing 11 March 2011 page 4: “That’s the owner’s responsibility ... The owner’s got some problems.” Page 5: “And if that [an insurance claim] fails, it’s up to the owner what he does from there”. Page 6: “I don’t want to make a $12,000 claim [sic] against an owner if there’s a way round it.”
[5] Noosa Hot Properties.com Pty Ltd v Olopai [2012] QCATA 201.
206 Lessor's or agent's name and other details
(1) On or before the day the tenant starts occupying the premises, the lessor or lessor's agent must give a written notice to the tenant stating—
(a) the lessor's name and address for service; or
(b) if the lessor has an agent who is authorised to stand in the lessor's place in a proceeding prescribed under a regulation (the prescribed proceeding)—the agent's name and address for service.(2) If a detail mentioned in the notice changes, the lessor or agent must give written notice of the change to the tenant within 14 days after the change.
(3) If details of the agent mentioned in subsection (1)(b) are given to the tenant under this section, the agent stands in the lessor's place for a prescribed proceeding and, for example—
(a) the proceeding may be taken against the agent as if the agent were the lessor; and
(b) a tribunal may make an order against the agent as if the agent were the lessor; and
(c) settlement may be made with the agent as if the agent were the lessor.Details of the agent were duly given to the tenant Christensen, and Clause 43(2) of the subject agreement provides that “... unless a special term provides otherwise, the agent may ... stand in the lessor’s place in any application to a tribunal by the lessor or the tenant”. There is no relevant special term. Rental Express might have applied to join its principals as co-respondents (or third parties)[6] but has not done so. In future, estate agents wishing to avoid personal liability or the need to bring indemnity proceedings against their principals may pay closer attention to section 206 and to appropriate special conditions.
[6] Queensland Civil and Administrative Tribunal Act 2009, s 42.
There was no mention of section 206 at either hearing; lawyers did not appear. But whether or not the participants were aware of that section, no issue with respect to it was raised. The defence of Rental Express is simply that they were no longer the landlords’ agent at any material time.[7] That contention was not raised at the part-hearing on 11 March 2011, but Christensen concedes that in July 2011, Rental Express told him by email: “We no longer manage this property”.[8] That claim is repeated in the application for reopening, with this addition: “... and [we] were not managing the property when the claim was made”. (It may be more to the point to ask whether Rental Express was still the agent when the cause of action arose.)
[7] Application for reopening filed 15 November 2011 part “C”.
[8] Submissions filed 21 November 2011 page 1.
The date of the alleged cessation of agency is uncertain, and, whatever it may be, there is no evidence that the lessor or Rental Express gave the notice of change required by section 206(2).
It is undisputed that Rental Express was aware of the time, date and venue of the resumed hearing on 19 October 2011, but on the basis of its contention that it was not the landlords’ agent at the relevant time, Rental dispensed itself from appearing. It claims that, on 13 October 2011, its office manager, Hazel Grant, wrote to the QCAT registry in these terms:
Brisbane Claim 405/11. Rental Express will not be attending the court on 19 October 2011 for the above claim. The reason being that we no longer manager [sic] this property and the complaint is not against us but the owner of the property. ... The tenant had [sic] been advised by our office that we no longer managed the property and he would need to put in a claim against the owner.
It appears that this letter did not reach QCAT, or, if it did, that it was not before the Adjudicator on 19 October 2011. That does not matter; it is clear that Rental Express was aware of the hearing, but decided to absolve itself from attendance. Even if the letter of 13 October 2011 had been placed before the Adjudicator, he would have been entitled to proceed.[9] But it does not follow that default judgment upon an unliquidated claim could be entered for the asking. It was still necessary for Christensen to prove his case, and to dispose of any issue raised by Rental Express upon which he bore the onus of proof.[10] One such issue was whether Rental Express was the landlord’s agent at the material time – whether that time be when the cause of action arose (the view that I prefer) or the time when the claim was filed. A related question is whether the agency could be lawfully terminated without the notice required by section 206(2), if in fact no such notice were given.
[9] Queensland Civil and Administrative Tribunal Act 2009, s 93.
[10]MY Distributors Pty Ltd v Omaq Pty Ltd (1992) 36 FCR 578 at 589; Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 282, 303; McEnearney v. Coggin [2007] QDC 120; cf Uniform Civil Procedure Rules 1999 r 476(1) “If a defendant does not appear when the trial starts, the plaintiff may call evidence to establish an entitlement to judgment against the defendant, in the way the court directs.”
In describing those questions as issues between the parties I bear in mind the informality of pleading in the Tribunal. I consider that they were sufficiently raised by the agent’s allegation in the application for reopening, noted in [8], above.
Too many uncertainties remain. The issue of continuing agency was simply not canvassed in the hearing on 19 October 2012, and in my view, if it had been, there was no evidence, or no sufficient evidence before the Tribunal to discharge the onus of proof borne by Christensen. I do not consider that the unsworn statements in his submissions dated 21 November 2011 (four weeks after the hearing), or his bare assertion at the second hearing, also unsworn, would suffice to discharge that onus, if the Tribunal had considered it. The bare assertion (specifying no particular time) capped a brief and rather confused exchange:
Presiding Member: [Rental Express] were the lessor, they weren’t the landlord, were they, they were the owner?
Mr Christensen: They were the owner, yes. The owner, I think his name was Strigas but of course the agency –
Presiding Member: They were his agent?
Mr Christensen: Yes.[11]
[11] Transcript of hearing 19 October 2011 page 3.
Better evidence may have been available, but it was not tendered or required. In fact, no finding upon the agency issue was made, and evidence to support such a finding was insufficient. Further, there is no assurance upon the record that section 206 of the Residential Tenancies and Rooming Accommodation Act 2008 was drawn to the parties’ attention, or given any consideration. Those are errors of law, sufficiently central to warrant leave to appeal, and the grant of a rehearing.[12]
[12]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18].
Rental Express should have an opportunity to put the claimant to his proof on the issue of agency at the material time, and to adduce any evidence it can adduce to rebut any evidence led against it. But if the company should seek to raise new issues, an adverse inference may well arise.
ORDERS
The application for leave to appeal is granted.
The appeal is allowed.
The award of $12,255 against Rental Express Pty Ltd, made on 19 October 2011, is set aside.
The primary application is remitted for rehearing by a Member or Adjudicator who has not previously dealt with this case.
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