Taylor v Elders Real Estate
[2012] QCATA 168
•9 August 2012
| CITATION: | Taylor and Anor v Elders Real Estate [2012] QCATA 168 |
| PARTIES: | Margaret Taylor Graham Taylor (Applicants/Appellants) |
| v | |
| Elders Real Estate (Respondent) |
| APPLICATION NUMBER: | APL208-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 9 August 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application for leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – Magistrate made termination order on basis of rent arrears – applicants applied for reopening – reopening granted – Magistrate affirmed termination order – whether applicants were allowed sufficient opportunity to present their case – whether applicants suffered from a disability – whether fair hearing – no grounds for leave Queensland Civil and Administrative Tribunal Act 2009, ss 32, 142 (3)(a)(i) Cachia v Grech [2009] NSWCA 232 |
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
Mrs Taylor and her son Graham were the tenants in residential premises at Burrum Heads managed, for the owner/lessor, by Elders Real Estate Burrum Heads (Burrum Heads Real Estate Pty Ltd).
The agent brought proceedings (in the owner’s name) in QCAT’s minor civil disputes jurisdiction in June 2012 seeking a termination order on the grounds that Mrs Taylor and Mr Taylor had failed to pay the rent.
The matter came on for hearing before a Magistrate sitting as a QCAT Member on 26 June 2012. Mrs Taylor and Mr Taylor did not appear and the learned Magistrate ordered that the residential tenancy agreement be terminated from midnight on 3 July 2012 “on the grounds of rental arrears” and directed that a warrant of possession issue to take effect on 4 July 2012. It was also directed that Mrs Taylor and Mr Taylor pay arrears of $1,800.00.
Mr Taylor then applied to have the proceedings reopened on the ground that Mrs Taylor had been in hospital on 26 June 2012 and could not attend. The learned Magistrate, with commendable speed, listed the reopening application for 29 June 2012. On that day he granted the reopening application and heard from both the representative of Elders Real Estate, and Mr Taylor. At the end of the hearing, however, he confirmed his previous order.
Mrs Taylor and Mr Taylor seek leave to appeal that decision. They also sought a stay of its operation. On 13 July 2012 the Appeal Tribunal ordered that the stay application would be determined on the papers by an exchange of written submissions. That occurred, and an order refusing the stay was made on 2 August 2012.
The parties had also been directed, on 13 July, that the application for leave to appeal (and the appeal, if leave is granted) would be determined on the papers and, again, they exchanged written submissions. On 9 August 2012 the Appeal Tribunal refused leave to appeal. These are the Reasons for the Appeal Tribunal’s decision.
QCAT’s minor civil disputes jurisdiction is a very large one, with many thousands of applications each year dealt with by Adjudicators and Magistrates sitting as QCAT Members. In the QCAT Act Parliament made it clear that in the interests of economy and finality, disputes within the jurisdiction should if possible be resolved at a first hearing. Consistent with that, appeals from those decisions can not be brought automatically, but only with what the legislation calls “leave”[1].
[1] Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i).
A party wishing to appeal must first apply for leave and must show that the decision in question is effected, at least arguably, by an appellable error by the decision maker which has resulted in a substantial injustice.
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?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at 2.
[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]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.
[10]In their application for leave to appeal and their written submissions Mrs Taylor and Mr Taylor asserts that substantial evidence was not heard by the Magistrate; that they had “valid disabilities”; and, that they need “representation to have equality”.
[11]It may be taken, firstly, that they mean that they have other relevant evidence which should have been considered by the learned Magistrate, or by the Appeal Tribunal. As discussed later, however, no evidence of that kind appears to have been produced by them.
[12]Their other ground may reasonably be taken to involve a submission that because of their disabilities they were denied a fair hearing, and could never get a fair hearing unless they are properly represented.
[13]The audio recording of the proceedings before the learned Magistrate shows, however, that Mr Graham Taylor appeared and made submissions to the Magistrate which were clear, and which can fairly be described as articulate.
[14]In particular, he argued two things: that the real estate agents were holding $1,000.00 in their trust account, paid by his mother, being the deposit on another unrelated real estate transaction which could be used against the rent; and, that there had not been any proper opportunity for a meeting between him and his mother, and the agents to discuss their complaints about problems with the premises and, by inference, the manner in which the rent might be adjusted.
[15]The audio recording makes it clear that the learned Magistrate took care to allow Mr Taylor ample opportunity to make oral submissions, and also to explain to Mr Taylor the nature of the agent’s case against him and his mother. Mr Taylor’s responses to questions from and statements made by the Magistrate were at times less than clear, but the Magistrate persisted in a way which, the recording confirms, ensured that Mr Taylor understood what he was being asked, and the matters relevant to his response.
[16]It is inescapable, from the recording of the proceedings, that Mr Taylor was allowed a fair hearing; and, that he did not need legal or other representation to explain the case he and his mother wished to advance.
[17]The evidence showed that an amount of $1,000.00 had been paid by Mrs Taylor as a deposit in an unrelated real estate transaction which had not proceeded, in circumstances in which the other party to that transaction claimed it should be forfeit. The agent gave evidence that it could not, therefore, release the sum or use it against rent. Mr Taylor did not attempt to produce any evidence to show that allegation was wrong.
[18]He also made complaints about some problems with the premises relating to mould but did not produce any evidence or make any claim for compensation or an adjustment of the rent in respect of it.
[19]The evidence otherwise showed that Mrs Taylor and Mr Taylor had entered into a lease of the premises in October 2011. Rent gradually fell behind and by early June 2012 was over a month in arrears. Several notices under the legislation were sent to Mrs Taylor and Mr Taylor, but the arrears were not brought up to date. A notice to leave was finally issued on 2 June 2012.
[20]Between that time and the first hearing on 26 June Mrs Taylor and Mr Taylor had, it appears, ample opportunity to prepare their case. It is not unlikely that their preparation was interrupted by Mrs Taylor’s illness and hospitalisation but, again, the clear and forthright way in which Mr Taylor is heard to speak on the audio recording of the hearing strongly suggests he understood what was an issue at the hearing.
[21]There was also evidence that the agents had had several meetings with the Taylors about problems with mould which, the agent asserted, had caused difficulties throughout Burrum Heads in the last long, hot, wet summer. There is nothing in the evidence to suggest it made the premises uninhabitable and indeed Mr Taylor did not appear to claim that.
[22]The Appeal Tribunal is naturally alert and concerned when a party claims to be labouring under intellectual or physical disabilities. So far as the evidence revealed Mrs Taylor’s position, her non-attendance was caused by her advanced age, and some physical problems. Mr Taylor claimed, to the Magistrate, that he had some intellectual disabilities which meant that he could not fully understand the issues in the matter or what he ought to do, but his speech (on the audio transcript) is clear and at all points indicates he understood that the notice to leave was based upon non-payment and arrears of rent.
[23]Importantly, nothing in the recording suggests that any disadvantage he may have suffered because of any disability had the effect of denying him or his mother a fair hearing, in which all the relevant issues were ventilated.
[24]The recording also makes it clear that the learned Magistrate took care, and time, to ensure that he understood the case against him, and had every opportunity to raise any issue which might have been relevant, and would have provided a defence or a basis for resisting a termination order.
[25]In summary, Mr Taylor received a fair hearing. There is nothing in the proceedings to suggest he or his mother did not, or could not do so without independent representation. Nor does anything in the evidence suggest they had a legitimate, sustainable or even arguable defence to the claim made by the agents.
[26]In the circumstances leave to appeal could only be refused.
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