Sambrooks v Gertenaar

[2014] QCAT 97

CITATION: Sambrooks v Gertenaar [2014] QCAT 097

PARTIES:	Rick Sambrooks (Applicant)
v
Willem Gertenaar (Respondent)

APPLICATION NUMBER: MCDT1351-12

MATTER TYPE: Residential tenancy matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Adjudicator Bertelsen

DELIVERED ON: 21 March 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The respondents reopening application is refused.

CATCHWORDS: Reopening – service of initiating application – notification of forwarding address – evidence of forwarding address – reliance on forwarding address provided – efficacy of decision in absence of addressee

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

Application

1. Mr Sambrooks originally filed an application seeking arrears of rent, damages, house cleaning costs, mowing and yard cleaning costs, water usage reimbursement and carpet cleaning charges in the sum $6,490.80 from Mr Gertenaar his former tenant at 37 Tamba Street, Murarrie.  Notice of Hearing setting the initiating application down for 7 September 2012 was sent to Mr Gertenaar on 13 August 2012 to be received 15 August 2012.  The notice of hearing was sent to 23 Maggs Street, Wavell Heights. On 7 September 2012 the applicant Mr Sambrooks appeared. Mr Gertenaar did not.  The application proceeded and the Tribunal ordered Mr Gertenaar pay Mr Sambrooks the sum of $4,710.80 payable by 5 October 2012.

2. Mr Gertenaar filed a reopening application on 24 February 2014 stating he was not resident at 23 Maggs Street, Wavell Heights at the time the initiating application was filed. He says that as at 15 August 2012 he was residing at 24 Fee Street, Chermside and that he had no connection with the Maggs Street address. He states he did not receive any notice of hearing and that he was first made aware of the matter on 29 January 2014 when he was required to attend an enforcement proceeding.

3. Mr Gertenaar states further that he lived at Maggs Street, Wavell Heights for a period of two weeks only; that he did not get mail forwarded and did not receive any mail from Maggs Street; that he renewed his licence ‘not long after leaving Maggs Street’ proffering a letter from Transport and Main Roads in support. Mr Gertenaar asserted his email address was a constant and that he could have been served through that medium by way of substituted service; that he has acted ‘immediately’ as he would have done if the applicant ‘made suitable attempts to serve me the papers in 2012’.

4. Mr Sambrooks for his part submitted that the Maggs Street address was given to him by Mr Gertenaar as his forwarding address along with a payment plan for arrears. Mr Sambrooks produced a copy of a rental statement through to the end of May 2012 with a handwritten endorsement providing for $1,000 on account of arrears of rent to be paid on 31 May 2012, a further $1,000 on 8 June 2012 and the ‘remainder plus any extras’ by 15 June 2012. The forwarding address for Mr Gertenaar that he nominated is 23 Maggs Street, Wavell Heights. Mr Sambrooks states there are two signatures adjacent to the handwritten endorsement that are Mr Gertenaar’s signatures and as such can be verified by reference to Mr Gertenaar’s signature on the rental agreement which is produced.

5. Mr Sambrooks states that Mr Gertenaar received a registered post letter on the 19 August 2013 and signed for it; that the registered post was person to person requiring personal identification, a signature and a return slip posted back. Mr Sambrooks produces a copy of Australia Post, registered post – delivery confirmation – advice receipt form recording the signature of addressee next to which is a signature that appears identical to Mr Gertenaar’s signature on the handwritten endorsement as well as the tenancy agreement. Mr Sambrooks further states a week later the registered mail envelope was returned to him with the notation ‘I am the house sitter I collect mail & pay bills. W Gertenaar o’seas. Please remail after January 2014’.

Conclusions

1. Mr Gertenaar gave Mr Sambrooks his forwarding address according to the rent ledger and handwritten endorsement around the end of May 2012. The Tribunal is satisfied by reference to Mr Gertenaar’s signature on the tenancy agreement that he, Mr Gertenaar, signed the handwritten endorsement nominating 23 Maggs Street, Wavell Heights as his forwarding address. That Mr Gertenaar may have only ever resided at 23 Maggs Street, Wavell Heights for some two weeks was not something within the knowledge of Mr Sambrooks. There is no evidence that Mr Gertenaar informed Mr Sambrooks of any change of forwarding address at the time. That the house at 23 Maggs Street, Wavell Heights was demolished according to Mr Gertenaar in the first week of June 2012 is not something that Mr Sambrooks could have or should have been aware of (assuming it ever happened) and is at odds with Mr Gertenaar’s notification only a week or two beforehand. That Mr Gertenaar did not get mail forwarded and did not receive any mail from the Maggs Street address is not due to any act or omission on the part of Mr Sambrooks.

2. Mr Gertenaar refers to renewing his licence not long after leaving Maggs Street. The letter from Transport and Main Roads simply refers to a change of address from 37 Tamba Street, Murarrie (the rental premises) to 24 Fee Street, Chermside as from 18 July 2012. Either Mr Gertenaar was at 37 Tamba Street, Murarrie up till 18 July 2012 moving directly to 24 Fee Street, Chermside on that date or the letter is incorrect. On Mr Gertenaar’s own statement the Transport and Main Roads letter is obviously incorrect and does not properly record the chronology of residence.

3. Mr Gertenaar contended that his email address was constant and that because such was the case he could have been served by email pursuant to a substituted service order. A substituted service order is exactly what it says. It is a means of effecting service by alternative means (where the primary means fails) such that the proceeding is still, on balance, likely to come to the attention of the intended recipient. There was no apparent need for a substituted service order at the time.

4. Mr Gertenaar’s suggests that if suitable attempts had been made to serve him in 2012 he would have acted immediately. By suitable attempts one surmises he feels he was entitled to a substituted service order at the time. In the context of Mr Gertenaar providing a forwarding address that is nonsensical. The initiating application was sent to the Maggs Street address. There was no return of delivery at the time. There is no injustice here. Mr Gertenaar has only himself to blame.

5. To accept Mr Gertenaar’s contentions would be to place on an applicant unrealistic lengths to which a party is expected to go to ensure on balance that service is effected.

6. The Tribunal does not accept Mr Gertenaar’s latter day assertion that because he was at the Maggs Street address for some two weeks that such entitles him to have the initiating application reopened almost two years after the event.

7. Mr Gertenaar’s refusal to accept registered mail in August 2013 (and the Tribunal finds that it was Mr Gertenaar’s refusal by reference to the signature initially confirming delivery) is consistent with what appears to be a self serving chronology of events in June to August 2012. The Tribunal is satisfied on balance that Mr Gertenaar more than likely received the initiating application on or about 15 August 2012. That being the case Mr Sambrooks was entitled to proceed. The reopening application is refused.