Scott v Xiao
[2013] QCATA 268
•1 October 2013
| CITATION: | Scott v Xiao [2013] QCATA 268 |
| PARTIES: | James Stuart Scott (Appellant) |
| v | |
| Linqun Conrad Xiao (Respondent) |
| APPLICATION NUMBER: | APL145-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe OAM, Senior Member |
| DELIVERED ON: | 1 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – where notice to remedy breach – whether notice defective – where notice to leave – whether notice defective – where request for rental statement – where claim for compensation – whether notices retaliatory – whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 291(2), 291(3), 349(1) Dearman v Dearman (1908) 7 CLR 549; Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
The Scott family were tenants of an acreage property at Bundamba. On 27 December 2012, the lessor’s agent issued a Form 11 notice to remedy breach. The details of the breach were “failure to comply with your lease regarding rent payments.” According to the notice, Mr Scott’s rent was eight days, and $1,080, overdue. He had until 5 January 2013 to remedy the breach.
The agent issued a Form 12 notice to leave on 7 January 2013. The notice stated that the grounds for the notice were “failure to pay rent arrears”. Mr Scott was required to vacate by 16 January 2013.
Mr Scott and his family did not vacate. The agent filed an application for termination of the tenancy agreement. On 5 March 2013, after two adjournments, an Adjudicator granted a termination order.
Mr Scott wants to appeal that decision. He says that the Form 11 was wrong. He says that the Form 12 was wrong. He says the learned Adjudicator should have dismissed the application pursuant to s 426 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). He says that the learned Adjudicator erred in ruling that the errors in the Forms 11 and 12 were clerical errors only. He says that the agent misled the tribunal. He says that the agent’s misleading conduct contributed to the learned Adjudicator’s bias against him. He says that the learned Adjudicator erred in failing to consider all the circumstances, including that the lessor had failed to maintain the property, had not reimbursed Mr Scott for emergency repairs and issued notices when he knew that Mr Scott would be on holiday. Mr Scott says that the lessor’s notice was retaliatory.
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 appeals 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.
The Form 11
Mr Scott argued the validity of the Form 11 at the hearing on 26 February 2013 but not at the hearing on 5 March 2013.[5] He can’t really say that the learned Adjudicator was wrong on a matter that he did not pursue.
[5] Transcript page 1-4, lines 6-9.
However, Mr Scott says that the nominated amount of $1,080 to fix the arrears is wrong. I disagree. Mr Scott admits that, at the time of the notice, he was in arrears by nine days. He had until 5 January 2013 to remedy the breach which meant that, by 5 January, the total rent he had to pay was eighteen days. The rent is $420 per week, or $60 per day. The calculation of $1,080 is correct. I do not accept Mr Scott’s argument that the Form 11 was invalid. The Form 11 told him his rent was eight days in arrears. It also told him that, by 5 January 2013, he would have to pay $1,080.
The Form 12
Mr Scott says that the Form 12 does not state the grounds for issuing the notice. That is not right. The grounds for the notice are stated as “failure to pay rent arrears.” Mr Scott told the learned Adjudicator that, by the time the notice issued on 7 January 2013, he had paid rent up to 26 December 2012[6]. That means that the notice was right; as at 7 January 2013, Mr Scott’s rent was still in arrears.
[6] Transcript page 1-4, lines 28-28.
Mr Scott says that the notice is wrong because it states that his rent is only paid up to 7 December 2012, whereas he was paid up to 26 December 2012. He says this makes the notice void.
The agent did not concede that the notice was void. It did issue a second notice but it appears the notice was issued in error. The agent did not rely on the second notice, because it filed the application for termination based on the first Form 12 and before the second Form 12 expired. The agent’s conduct was not ideal, but it did not render the first Form 12 ineffective.
At the hearing, the learned Adjudicator pointed out that s 349(1) of the RTRA Act permits the tribunal to act on a defective notice to leave[7]. The tribunal may make a termination order if it is satisfied it is appropriate in all the circumstances of the case. The learned Adjudicator considered all the circumstances of the case and exercised his discretion. For the reasons that follow, I see no reason to overturn the learned Adjudicator’s decision.
[7] Transcript page 1-10, line 38-40.
The agent’s conduct and the Adjudicator’s bias
Mr Scott says that the tenant ledger dated 5 March 2013 did not show a payment he made on 1 March 2013. The agent explains that this is a discrepancy in its trust account software, which records the payment when it reaches the agent’s bank account, but dates the receipt of the payment as the date the tenant pays.
The learned Adjudicator acknowledged that Mr Scott had paid a “substantial” amount of rent in week before the hearing[8]. Unfortunately for Mr Scott, the learned Adjudicator also identified that the rent was still in arrears.
[8] Transcript page 3, line 4.
Mr Scott does not point to any specific instance of bias by the learned Adjudicator. Bias is a very serious allegation. The test is[9]:
… if a fair-minded lay bystander might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the issues that he or she must decide.
[9] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
Certainly, the learned Adjudicator showed some frustration with the parties. He told Mr Scott a number of times that, if he wanted to stay in the tenancy, he had to pay the rent. I am not persuaded that these comments show that the learned Adjudicator failed to act impartially.
All of the circumstances
The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[10] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[11] As the High Court said in Fox v Percy:
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.[12]
[10]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[11] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[12] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
Mr Scott had a periodic tenancy. He had not paid the rent. He had asked the lessor to pay for a fence at the tenancy and some maintenance work but, as the learned Adjudicator pointed out, that does not relieve Mr Scott from the obligation to pay rent. The correct procedure is to pay the rent and then apply to the tribunal for compensation. Mr Scott applied to the tribunal but he did not preserve his position by paying the rent.
Mr Scott was entitled to a rental statement. As the learned Adjudicator observed, however, Mr Scott must have known that he had to pay rent while he was overseas. He cannot use the agent’s failure to provide a statement as justification for his own breach.
The parties had been in dispute for some time. They had both been before the tribunal, on similar grounds, two years before. The lessor wanted vacant possession and, as the learned Adjudicator pointed out, a periodic tenancy gave Mr Scott no certainty of tenure beyond a two-month period.
Mr Scott told the learned Adjudicator that he wanted to stay at least another six months, because the tenancy is on acreage and he has animals that he would have to move. The learned Adjudicator accommodated that request, in part, by terminating the tenancy on 5 March 2013 but effective as at 5 May 2013.
Retaliatory conduct
Sections 291(2) and (3) of the RTRA Act deal with retaliatory action. Under those sections, a lessor must not give a notice to leave without grounds because the tenant has taken some action to enforce the tenant’s rights. The sections do not apply in this case. The notice to leave was given with grounds – the failure to pay rent.
Conclusion
The learned Adjudicator’s findings are supported by the evidence. Mr Scott received a notice to remedy breach because his rent was in arrears. He received a notice to leave because his rent was still in arrears. At the hearing, which was adjourned for a week to enable Mr Scott to appear and present his case properly, he was still in arrears. There is nothing in the transcript to persuade me that the learned Adjudicator should have taken a different view of the facts.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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