Sandor v Department of Communities (Housing and Homelessness Services)
[2013] QCATA 156
•29 May 2013
| CITATION: | Sandor v Department of Communities (Housing and Homelessness Services) [2013] QCATA 156 |
| PARTIES: | Miklos Sandor (Applicant/appellant) |
| V | |
| Department of Communities (Housing and Homelessness Services) (Respondent) |
| APPLICATION NUMBER: | APL394 -12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 29 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where tenant did unauthorised renovations in tenancy – where renovations resulted in asbestos contamination – where lessor removed tenant and tenant’s goods from contaminated premises – where lessor rectified renovation work – where lessor decontaminated premises – where lessor decontaminated some of tenant’s goods – whether tenancy agreement terminated – whether termination implied by entry into new agreement - whether lessor entitled to dispose of tenant’s goods – whether lessor disposed of tenant’s goods – whether claim for compensation reasonable – where witness not available for cross-examination – whether Magistrate erred in not ordering adjournment Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 177, s 363, Liverpool City Council v Irwin & Another [1976] 2 All ER 39, cited Miller v Hancock [1893] 2 QB 177, cited Chambers v Jobling (1986) 7 NSWLR 1, cited QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited |
APPEARANCES and REPRESENTATION (if any):
The Appeal Tribunal heard and determined this matter on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Sandor lived in a public housing unit in Nambour. In 2011, he decided to renovate the unit. He replaced the electric hot water system with gas, he removed walls and kitchen cabinets and he started converting the laundry into a bathroom.
Unfortunately he did not have the consent of the Department, his landlord, for this work.
In the course of the work, Mr Sandor cut through asbestos sheeting, contaminating the unit and his possessions in the unit. He also removed a load bearing wall, leaving the unit in a dangerous condition.
On discovering the renovation work the Department relocated Mr Sandor and his son to temporary accommodation and, a couple of weeks later, to a new address. The Department then set about rectifying what Mr Sandor had done, at a cost of over $55,000.
The Department filed a claim in the Tribunal to recover that cost plus the cost of storing Mr Sandor’s contaminated goods. A Magistrate, sitting as an ordinary Member of the Tribunal found that the tenancy agreement was terminated when Mr Sandor signed the tenancy agreement for his new home. The learned Magistrate ordered Mr Sandor pay compensation of $65,920. He also made orders dealing with Mr Sandor’s goods in storage.
Mr Sandor has filed an application for leave to appeal the learned Magistrate’s decision. There are four grounds of appeal. Mr Sandor submits that the learned Magistrate erred in finding that the Tribunal had power to make a disposal order. He submits that the learned Magistrate failed to properly consider the Department’s duty to mitigate its loss. He submits that the learned Magistrate’s finding that the decontamination company acted in a professional way was wrong. Finally, Mr Sandor submits that the learned Magistrate erred in not adjourning the proceedings so that a witness, Ms Walsh, could be available for cross-examination.
Because this is an appeal from a decision of the Tribunal in its Minor Civil Disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
Mr Sandor filed an affidavit with his application for leave to appeal. He swears to four different facts which, he says, are important to the application for leave to appeal. The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.[5] Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Sandor have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[6]
[5] QCAT Act ss 137, 138.
[6] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408
The Department filed its application in March 2012. In June 2012, the registry gave the parties notice that the dispute would be heard in October 2012. Mr Sandor had ample time to gather material to support his case. Mr Sandor has not explained why he did not swear the affidavit earlier. The fresh affidavit does no more than swear to the facts in submissions already before the learned Magistrate. It would not, therefore, have an important impact on the result of the case. Further, the evidence will not be credible unless the Department has an opportunity to file statements from the relevant officers. The evidence should not be admitted, and the application for leave to appeal must proceed on the basis of the evidence before the learned Magistrate.
The Tribunal can only make a disposal order if the tenancy is ended.[7] Mr Sandor argues that the Department started this process before the tenancy ended so that the Tribunal has no power to make orders about the goods.
[7]Residential Tenancies and Rooming Accommodation Act 2008 s 363(1)(a) (‘RTRA Act’).
The Department removed Mr Sandor from the tenancy on 14 September 2011. He signed a new tenancy agreement on 27 September 2011. The learned Magistrate found[8] that the tenancy ended on the day Mr Sandor signed the new tenancy agreement.
[8] Transcript of Proceedings at Part 3, 12:29
Mr Sandor points out that a tenancy agreement can only end in a way mentioned in s 277 of the RTRA Act. He says, and the learned Magistrate accepted,[9] that he did not abandon the premises.
[9] Ibid 13:22
The only other way the tenancy could have ended is by written agreement.[10] Mr Sandor argues that the signing of a new tenancy agreement that does not expressly provide that the old agreement is terminated does not meet this test. He says that the Tribunal cannot rely on an implied term, particularly given the power and knowledge imbalance between the two parties and where Mr Sandor’s rights are so significantly affected.
[10] RTRA s277(2)
The State Tenancy Agreement echoes s 277 in the ways in which the agreement can be terminated. There is no express provision for a deemed termination. The tenancy agreement of 27 September 2011 does not refer to the earlier agreement.
Courts and tribunals will sometimes imply terms into a contract where it appears that it does not contain an express term that would have bearing on a particular matter. Terms can be implied by law (as a legal incident to a particular class of contract, regardless of the intentions of the parties)[11] or by necessity to give business efficacy to a particular contract.[12] Terms implied by law are deemed necessary by implication; otherwise, the whole of the transaction would be futile.[13]
[11]Castlemaine Tooheys Ltd v Carlton & United Breweries Ltd (1987) 10 NSWLR 466 at 487-489.
[12]See Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR at 345-347 (per Mason J)
[13]Castlemaine Tooheys Ltd, supra; Liverpool City Council v Irwin & Another [1976] 2 All ER 39; Miller v Hancock [1893] 2 QB 177 at 180-181 per Bowen LJ.
None of these circumstances applies to Mr Sandor’s situation. The learned Magistrate should not have implied a term in the new agreement that the old agreement was at an end. The tenancy agreement, on its face, is not an agreement in writing that the tenancy is at an end and, to that extent, the learned Magistrate was in error.
The Tribunal has copies of correspondence between Mr Sandor’s representatives and the Department from 30 September 2011 and January 2012. The correspondence deals only with Mr Sandor’s goods. While it might be argued that this exchange should be taken as a written agreement that the tenancy has ended, I am not persuaded the correspondence goes far enough.
The Department delivered a notice to remedy breach on 14 September 2011. Mr Sandor had until 24 September 2011 to repair the damage he caused to the unit. He did not. The Department could have given a written notice to leave; it did not. The Department could have applied to the Tribunal for a termination of the tenancy because of damage.[14] Again, it did not. The Department’s failure to comply with the usual procedure led the learned Magistrate into error. Leave to appeal should be allowed.
[14] RTRA Act s 415.
Because the tenancy agreement did not end until the learned Magistrate’s order of 17 October 2012, Mr Sandor’s submission that s 363 of the RTRA Act could not operate before that date is correct.
However, the argument is an arid one. The Department did not dispose of the goods before the hearing; it simply put them into storage. It decontaminated some of them and returned them to Mr Sandor. For the balance, it invited Mr Sandor to arrange for their decontamination. Mr Sandor’s failure to make those arrangements does not mean that the Department disposed of the goods.
Once the learned Magistrate terminated the agreement, s 363 applied and he could, and did, make a disposal order. I can find no compelling reason to alter the learned Magistrate’s order in that regard.
Mr Sandor argues that the learned Magistrate did not consider the submissions in paragraphs 3(e), (f) and (g) of his outline of submissions dated 15 October 2012. That submission is not correct. The learned Magistrate specifically referred to Mr Sandor’s submission that the Department overreacted.[15] The learned Magistrate disagreed with the submission, noting that the unit was dangerous and the Department had to act as it could have been sued by both Mr Sandor and other occupants of the unit complex.
[15] Transcript of Proceedings at Part 3, 7:46
Mr Sandor’s argument that he was denied the opportunity to make real and educated choices about his goods is contradicted by the correspondence on file. The Department wrote to Mr Sandor on 13 October 2011 and 14 November 2011 and to his representatives on 13 December 2011 and 12 January 2012, inviting Mr Sandor to make some decisions about his goods.
Mr Sandor argues that the learned Magistrate’s finding that the decontamination contractors acted professionally was, simply, wrong.
The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[16] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[17] As the High Court said in Fox v Percy[18]:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[19]
[16]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[17] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[18] (2003) 214 CLR 118.
[19] Ibid 128 per Gleeson CJ, Gummow and Kirby JJ.
I have listened to the transcript of Mr Dingle’s evidence at the hearing. He frankly admitted that he was never on site[20] and that he based his reports on the records of others. The decontamination work was a very big job done quickly. Some error in the records is understandable. It is possible that the contractors did not always adhere to the highest standards but that is no reason to discount the compensation that Mr Sandor must pay. The decontamination involved a number of elements: the contract work, the hire of bins, the disposal costs and the supervision. The contractors rendered invoices. The Department paid those invoices. The learned Magistrate considered the invoices and quantum carefully.[21] The evidence supports the learned Magistrate’s finding and I can find no compelling reason to come to a contrary view.
[20] Transcript of Proceedings at Part 1, 40:50
[21] Ibid Part 3, 27:10
Mr Sandor wanted to cross-examine a Department officer, Ms Walsh, about whether she consented to Mr Sandor’s renovation works. Ms Walsh was not available due to illness. Mr Sandor knew this but he did not ask for an adjournment. His only comment was: ‘I’m sad about that.’[22]
[22] Ibid Part 1, 7:21
The learned Magistrate found[23] that clause 25 of the tenancy agreement allowed Mr Sandor to make structural changes only if the Department gave its agreement in writing and the written agreement described the nature of the change. The learned Magistrate found that there was no written agreement.[24] He also found that, given the nature of Mr Sandor’s renovations, Ms Walsh could not have given implied consent. Those findings are open on the evidence.
[23] Ibid 11:11, 23:25
[24] Ibid 12:01, 22:50
The best Mr Sandor could hope for was that Ms Walsh might have confirmed his evidence that she told him he could make whatever improvements he liked. In her sworn statement, Ms Walsh refers to unapproved alterations. She swears that Mr Sandor admitted he knew he should not have done the alterations without approval. The learned Magistrate records that Mr Sandor admits he did the wrong thing.[25]
[25] Ibid 6:30, 26:52
Cross-examination of Ms Walsh would not have changed the fact that there was no agreement in writing. It would not have changed Mr Sandor’s admission of wrongdoing. The learned Magistrate’s failure to adjourn the hearing does not warrant the appeal being allowed.
Leave to appeal is granted. The appeal is refused and the decision of 17 October 2012 is confirmed.
3
0