Scholefield v High Surf Resorts Pty Ltd t/as Beachcomber Surfers Paradise
[2014] QCAT 233
•20 January 2014
| CITATION: | Scholefield v High Surf Resorts Pty Ltd t/as Beachcomber Surfers Paradise [2014] QCAT 233 |
| PARTIES: | Sarah Ann Scholefield (Applicant) |
| v | |
| High Surf Resorts Pty Ltd t/as Beachcomber Surfers Paradise and The Kafritsas Family Trust (Respondents) |
| APPLICATION NUMBER: | MCDT537-12 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 20 September 2013 |
| HEARD AT: | Southport |
| DECISION OF: | Adjudicator Howe |
| DELIVERED ON: | 20 January 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The Respondents pay the Applicant compensation of $40,790 plus filing fee of $275. |
| CATCHWORDS: | Residential tenancy application – jurisdiction in residential tenancy matters – holiday let or residential tenancy – eviction of tenant in breach of statutory requirements – removal and loss of tenant’s possessions – failure of lessor to adduce evidence – compensation to the tenant - measure of compensation - difficulty in calculation of compensation Queensland Civil and Administrative Tribunal Act 2009 (Qld) s13(4)(b) Scholefield v High Surf Resorts Pty Ltd [2013] QCATA 157 |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: Sarah Ann Scholefield
RESPONDENTS: Greg Kafritsas
REASONS FOR DECISION
Background
On 16 January, 2011 Ms Scholefield moved into a unit at the Beachcomber apartments at Surfers Paradise. She says she signed a three month lease for a unit and stayed on after that under a periodic tenancy until October 2011 when she was locked out. She lost all her possessions.
The Respondents (“High Surf”), say it was always a holiday let. There was no tenancy. She abandoned the unit sometime in August 2011. She has collected her possessions.
The Applicant’s Evidence
Ms Scholefield maintains she signed a residential tenancy agreement. She remembers it had a copy of the complex bylaws attached. She paid a bond and completed an entry condition report. A manager called “James” completed the tenancy agreement with her. She paid four weeks rent in advance and also paid a “security deposit”.
She occupied the unit as her home from January 2011 until October 2011. It was never a holiday let. She went to Melbourne for three nights and when she came back on 21 October 2011 she found the electronic key to her unit wouldn’t work.
She asked staff for help but to little avail. On 23 October, 2011, when she was finally given another key by reception, she went to her unit to find all her belongings gone and the unit relet to someone else.
She had to find emergency accommodation. That was difficult because her identification and other documents had been in the unit. High Surf refused to help.
Management provided few answers to her queries as to why she had been put out and they refused to return her possessions, or what was left of her possessions, until she paid them a claimed balance outstanding of $500. She didn’t understand that because she didn’t think she was behind in rent. They told her “bikies” had been in her unit and taken some of her things. She didn’t know any bikies. She didn’t know what they were talking about. She asked about her bond and security deposit and $1800 in cash she had left in the safe in her unit. Her enquiries fell on deaf ears. Initially they wouldn’t even tell her where her possessions were being stored.
On 27 October, 2011 she returned to the apartments and requested copies of documents evidencing the bond of $1400, the security deposit for another $1400 and she wanted a copy of her rent receipts and a copy of her lease and her rent ledger. Those documents were not forthcoming and have never been provided to her though she had previously requested a copy of the rent ledger in late September or early October 2011.
That earlier request came about when a new onsite manager told her she was behind in her rent. He denied she had a periodic tenancy, that she had paid a bond or had paid four weeks rent in advance at the start of her tenancy.
On 3 November 2011 she went to the police. On that same day she contacted the Residential Tenancies Authority. They told her they held no bond.
On 5 November 2011 the police told her it was a civil matter and they couldn’t help.
She has lost all her belongings. She still doesn’t know why she was removed but suspects High Surf took advantage of her absence to relet her unit at a much higher short term let fee to capitalise on the coinciding Indy 500 weekend.
High Surf’s Evidence
High Surf says, through Mr Kafritsas, Ms Scholefield was always on a holiday let. She signed a form entitled "Holiday Guest Registration" for the period 16 January, 2011 to 16 April, 2011. She paid a security bond of $1400 because she didn't have a credit card for security as was usually required.
In about August 2011 she was in arrears of her holiday let fees to the tune of $1650. Staff tried to contact her by telephone and they knocked on her door, but there was no answer.
In early September 2011 a staff member knocked on the door to the unit and two men resembling bikies opened the door and said she was not there. They told the staff member she owed them money, that she had “done a runner”. These men said she had given them her keys to the unit and they were living there temporarily. They said Ms Scholefield would not be returning. They said they would be leaving in a few days and would be taking items that belonged to them.
These men eventually vacated the premises and returned her keys to reception. The respondent changed the locks to the unit to terminate her holiday let and stored her belongings at their on-site secure storage facility.
As far as High Surf knew, Ms Scholefield had abandoned the unit.
When she came back to the apartments after 21 October 2011 she demanded access to the unit but they told her she had been locked out and her possessions, or what remained of them, were in storage.
In late October 2011 at her request and that of the police, her remaining belongings were left outside the maintenance shed at the Beachcomber units for collection. However she did not attend at the time agreed because she said she was fearful of the “bikies”. An alternate date for collection was set for the following weekend. She came, she took what she wanted, left some things, and has never been back. The remaining items have been disposed of.
The Applicant's Claim
Ms Scholefield’s claim was initially for $25,000 for loss of the value of possessions. The applicant subsequently increased her claim to $211,140 which included a claim for repayment of the bond of $1400, the security deposit of $1400, loss of property valued at $92,542, the cost of emergency accommodation, damages for “inconvenience”, loss of business income and associated expenses and general damages and compensation for trauma and violation of rights.
A number of the applicant’s claims fall outside the jurisdiction of the Tribunal. A claim for compensation arising out of breach of a residential tenancy agreement is within jurisdiction.
Tribunal's Jurisdiction
High Surf submits the jurisdiction of the Tribunal is limited to claims up to $25,000. To the extent Ms Scholefield claims more than that, her claim must fail.
That is not correct. The monetary jurisdiction of the Tribunal, in residential tenancy matters, is unlimited.[1]
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 13(4)(b).
The Respondent also says however that this application should be struck out because Ms Scholefield was not a tenant occupying her unit through a residential tenancy agreement pursuant to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act). She had a holiday let and the RTRA Act therefore has no application. The provisions of the Traveller Accommodation Providers (Liability) Act 2001 (Qld) apply to limit any claim to $250.
Holiday Let
Section 31(1) of the RTRA Act states the Act does not apply to a right of occupancy given for holiday purposes. By s 31(2) however it is provided that a right to occupy premises given for 6 weeks or longer is taken not to be given for holiday purposes unless the contrary is proved.
It is not disputed Ms Scholefield initially occupied the unit for an agreed period of three months. The onus is therefore on High Surf to prove the occupancy was for holiday purposes[2].
[2] Scholefield v High Surf Resorts Pty Ltd [2013] QCATA 157.
High Surf says she signed a form entitled "Holiday Guest Registration" and that demonstrated that she accepted she was staying as a holiday guest. Furthermore she was paying higher rent than a residential tenant would be expected to pay. In addition she was not liable to pay for the phone, electricity, water or Foxtel facilities and the unit was fully furnished. It is submitted that these things are consistent with Ms Scholefield being a holiday guest rather than a residential tenant.
The guest registration document also made provision for visitors to give details of their home address and telephone. Those details were not completed on the Holiday Guest Registration document bearing Ms Scholefield’s signature. The document also refers to a $200 security deposit being required. Ms Scholefield paid $1400.
Ms Scholefield says she signed a residential tenancy agreement, her copy of which has gone missing with all her other belongings. She has asked for a copy from High Surf but they haven’t provided it.
In Edwards v Cotton Tree Caravan Park[3] his Honour Justice Wilson considered the occupancy by Mr and Mrs Edwards of various caravans within a caravan park over a period of four years. It was common ground that there was no written tenancy agreement.
[3] [2010] QCATA 3.
His Honour said at [20]: “… s 31(1) of the RTRA say(s) that the legislation does not apply to a residential tenancy agreement if the right of occupancy of the premises is given for holiday purposes but … The following subsection makes it clear that a right to occupy premises for more than 6 weeks is evidence that the right was not given for holiday purposes. Here, of course, the implied right of occupancy was for a period of 4 years.”
Here the occupation was for at least seven if not nine months. In my view the overall period of occupancy is appropriately a primary factor to be taken into account to determine whether or not the occupancy is for holiday purposes or is in truth a residential tenancy arrangement.
There is no consensus as to the initial document governing the circumstances of Ms Scholefield’s occupancy. Ms Scholefield doesn’t deny signing the form entitled Holiday Guest Registration, but she says she went on to sign a residential tenancy agreement the next day.
The words used in the Act should be given their ordinary and natural meaning if possible. The word “holiday” is defined in the Oxford Dictionary Online as “an extended period of leisure and recreation, especially one spent away from home or in travelling”.
I note what High Surf has said about Ms Scholefield not paying for phone, electricity and water, however there is nothing unusual in parties reaching agreement about which party must pay for those items if one considers the standard tenancy agreement Form 18a. There is provision there for agreement to be struck on who pays, lessor or tenant, for such services. Similarly it is not unusual for properties to be let fully furnished where the let is for a residential tenancy.
I note that after High Surf removed Ms Scholefield’s belongings from the unit High Surf billed her for both carpet cleaning and general cleaning. That could be argued to be more appropriate to residential tenancy situations rather than holiday lets.
High Surf says Ms Scholefield was liable to pay higher rent than a residential tenant would be expected to pay. From a perusal of High Surf’s tendered list of bonds held on other units in the complex, one of the very few financial documents actually produced by High Surf, that argument does not hold true. Presumably the various bonds listed reflect a totality of four weeks rent[4]. Her bond is the same value as various other bonds held for various residential tenants in the apartments.
[4] Section 112 (1)(b) RTRA Act – the usual case.
High Surf has singularly failed to present financial evidence in support of its claims about the basis of Ms Scholefield’s occupancy. It runs a business of letting and leasing a complex of multiple units at Surfers Paradise. It seems inconceivable that documentation evidencing the financial history between the parties does not exist. It obviously has written records. An extract from a bond ledger has been produced by High Surf, but nothing else of consequence.
Ms Scholefield was apparently an avid purchaser from eBay and other online shopping sites. She filed many copy invoices and receipts evidencing her purchases throughout the period January 2011 to October 2011. The invoices and receipts show her address as the unit. Furthermore, the unit is the delivery address for the items purchased.
During her occupancy of the unit she started up her own business, Your Dream Dress Pty Ltd. In an ASIC application document, the unit is the nominated postal address for the company. There is also correspondence to her as officeholder of that company addressed to her at the unit. She arranged internet domain registrations for her business. In August 2011 she purchased a car (which she says she parked at the complex in the basement). When completing documentation associated with those various activities, the unit was given as her place of address.
I also note, and accept, that Ms Scholefield insured her possessions at her unit under a contents policy with CommInsure from 18 February 2011 to 18 February 2012. That shows to my mind that her occupancy of the unit was not for holiday purposes. There is no evidence that she had any other home, elsewhere, during this period.
High Surf was obliged to satisfy me that the occupation of the unit by Ms Scholefield was for a holiday let. It has failed to do so. I conclude Ms Scholefield’s occupation of the unit was as a residential tenant and the provisions of the RTRA Act apply to her occupancy. This is regardless of whether or not she executed a written residential tenancy agreement with High Surf.
In so far as that is concerned however, I conclude in any case that she did execute such a document, and conclude that she paid rent in advance, a bond of $1400 and a security deposit of another $1400. I had the benefit of hearing both Ms Scholefield and Mr Kafritsas give evidence. I accept Ms Scholefield’s evidence where it conflicts with that of Mr Kafritsas and the case made by High Surf. I note that most of Mr Kafritsas’ evidence was hearsay, and I did not find that hearsay very convincing. I found Ms Scholefield an honest and open witness.
As I have concluded that Ms Scholefield usually lived at the unit, that excludes the operation of the Traveller Accommodation Providers (Liability) Act 2001 (Qld)[5] and the limitations set by that legislation.
[5] Section 9(3)(b).
Abandonment and Termination
High Surf claims Ms Scholefield abandoned her unit sometime in August 2011 when she was approximately four weeks behind in her rent.
There are, however, quite a few internet purchase invoices and receipts tendered by her showing items were purchased by her and, apparently, subsequently delivered to her at the unit through August, September and October 2011. One such was a full length jewellery cabinet as high as Ms Scholefield is tall, delivered in early October 2011. That was certainly not delivered in the mail.
High Surf has produced no witnesses or witness statements, from staff or otherwise, to support its claim Ms Scholefield abandoned the premises. The only evidence is hearsay evidence from Mr Kafritsas.
Ms Scholefield’s case was clearly made out in her application with its supporting material. The material was filed and served on High Surf more than a year before the hearing in September 2013.
Mr Kafritsas claimed at hearing that he had previously filed in the Tribunal details of the High Surf rent ledger concerning Ms Scholefield. He did not. There is no such information in the Tribunal file. Ms Scholefield says she has tried to obtain that information from High Surf since November 2011, but it has never been provided.
There is no direct evidence from the staff member who Mr Kafritsas claims spoke to the “bikies” in the room nor any explanation why that evidence is not available. It must have been quite obvious that that evidence would be crucial to High Surf’s case.
That no such evidence has been produced when one might have legitimately expected such leads me to draw an adverse inference from that failure[6].
[6] Jones v Dunkel [1959] HCA 8.
I also find it quite extraordinary that if in fact unknown “bikies” or men who looked like “bikies” were found in a room in the apartment complex chasing someone for monies they claim they are owed, and the “bikies” say they intend to stay and use the room even though the occupant hasn’t paid rent, that police were not immediately called to the unit by management.
I also note in the copy of the police report tendered by Ms Scholefield that the investigating officer says “Police have tried on numerous occasions to speak to the manager known to the victim as (name deleted in report) who has not returned messages left with the Receptionists”.
I can give no credence to the “bikie” claims or that it appeared to staff of High Surf that Ms Scholefield had abandoned her unit. I conclude she did not abandon the unit, nor was High Surf advised by any third party that she had done so prior to her eviction by High Surf.
In any case no abandonment termination notice was ever given her as required by the RTRA Act[7], nor did High Surf make application to the Tribunal for an order about abandonment[8].
[7] Section 355.
[8] Ibid s 357.
As such the exclusion of Ms Scholefield from her unit and the removal of her belongings was a significant breach by the lessor of the residential tenancy agreement on foot at that time[9].
[9] Ibid s 183.
Compensation
I accept Ms Scholefield’s evidence that she lost all her possessions following her exclusion from her unit by High Surf on or about 21 October 2011. I find that thereafter her possessions were either lost or stolen or in some other way went missing whilst in the care of High Surf. I do not accept she attended and removed what possessions she wanted and left behind or abandoned the rest, or that third parties removed them before High Surf put them in storage.
The provisions in the RTRA Act[10] concerning goods and documents left behind on premises have no application given those provisions deal with a situation where things are left behind after a residential tenancy agreement ends. The ways in which a residential tenancy agreement may be terminated are limited[11]. As Ms Scholefield did not abandon the premises, her residential tenancy was not terminated when she was forced to leave behind all her property.
[10] Chapter 5, Part 1, Division 10.
[11] RTRA Act s 277.
The eviction constituted a breach of the residential tenancy agreement between the parties and accordingly s 420 of the RTRA Act applies, with the Tribunal empowered to make an order for compensation in result.
There is no statutory guidance as to the principles to be adopted in measuring compensation to be awarded to an aggrieved tenant by a defaulting lessor under s 420[12]. The statutory nature of the award necessarily distinguishes it from actions at common law in contract and tort.[13]
[12]By s 421 the RTRA Act prescribes factors to be considered in an order for compensation in favour of a lessor against a defaulting tenant, but not the reverse.
[13]I and L Securities v HTW Valuers [2002] HCA 41 at [61] considering statutory compensation under the Trade Practices Act 1974.
To my mind the tenant is entitled to be compensated for all loss which he or she has sustained in consequence or following the lessor’s breach and reasonably attributable to the breach.
Assistance may be gained from application of common law principles of damages, but compensation is not necessarily limited by factors that might otherwise restrict or deny common law remedies. For example issues as to remoteness of damage otherwise limiting an award under common law may not prevent an order for compensation under this legislation. Compensable loss may be economic, but is not necessarily limited only to economic loss.[14]
[14] Ibid.
As with common law damages, difficulty in determining damages because of lack of evidence should not deter the Tribunal from making an order for compensation.[15]
[15]Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1992) 174 CLR 64; Fink v. Fink (1946) 74 CLR 127 at 143.
High Surf’s position after removing her possessions in breach of the residential tenancy agreement was certainly no less than that of bailee of goods, owing a duty of care in respect of them. That said, in my opinion the compensation provision under s 420 may apply to recompense the tenant regardless of the lessor showing it took reasonable care of the goods.
Here however, I cannot conclude High Surf took any reasonable care of Ms Scholefield’s goods. They dealt with them and her in a most cavalier fashion. Her belongings appear to have simply disappeared under their watch.
Ms Scholefield has attempted to identify lost possessions and provide estimates of their value, but it is a difficult task due in no small part to her paperwork going missing with her other belongings.
She had, however, at the time of her loss a contract of insurance on foot with respect to her personal possessions. Those possessions were insured to the value of $28,090 for general contents plus $8,500 for specified items of jewellery, a total of $36,590. That was her estimate of the value of her possessions at the time of entering into the contract of insurance.
In all the circumstances that seems to me to be the most logical and appropriate estimate of the value of what she has lost. She should be awarded compensation in that amount.
Additionally, there is the matter of her outstanding rent and bond and security deposit. The carpet cleaning and general cleaning are standard charges levied in a residential tenancy situation. It is unclear whether Ms Scholefield was in arrears with respect to her rent when she was put out of her unit. There is mention made in the police report that she said she was. How much in arrears is unclear. In other evidence before the Tribunal she said she didn’t think she was in arrears.
I believe justice would be served if I make no order as to rent or bond but make an order that the security deposit of $1400 be paid back.
As to her business loss, she had not traded or traded at a profit when the eviction occurred. Certainly I accept she put a great deal of effort into her business enterprise and purchased stock, but the general award of compensation abovementioned in the sum of $36,590 should cover at least much of the lost stock.
I make a general award of compensation of $1000 to cover other general heads of claim dealing with the costs of emergency accommodation over and above the rental she would otherwise have been obliged to pay for her unit for a reasonable time after 21 October 2011, and the costs associated with replacing lost documents.
Ms Scholefield’s evidence is that she also had $1800 cash kept in a safe in the unit. I accept that money was there and it has gone missing. She is entitled to recover that as well.
Accordingly the respondent should pay Ms Scholefield compensation totalling $40,790 plus the application filing fee of $275.
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