Tremayne v Nunn
[2012] QCATA 9
•18 January 2012
| CITATION: | Tremayne v Nunn [2012] QCATA 9 |
| PARTIES: | Ms Toni Maree Tremayne (Applicant/Appellant) |
| v | |
| Mark Robert Nunn (Respondent) |
| APPLICATION NUMBER: | APL292-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 18 January 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Applications numbers 152/11 and 269/11 (Southport) together with the transcript of evidence in the original hearing and the submissions of the applicant in this application for leave to appeal be remitted to the minor civil disputes jurisdiction for reconsideration. 1. The hearing of the applications be restricted to the matters raised in the appendices to Ms Tremayne’s submissions filed in the Appeal Tribunal on 27 September 2011.2. |
| CATCHWORDS: | Minor Civil Dispute – where applicant made a claim for rent from the respondent as a sub-tenant – whether debt or liquidated demand – whether tenancy matter – where evidence presented in the hearing was capable of establishing the amount payable for rent and other expenses – whether part of the claim ought to have been struck out – where evidence presented in a coherent fashion on appeal – whether appropriate to remit for reconsideration Queensland Civil and Administrative Tribunal Act2009, ss 142(3), 146 and Sch 3 definition of minor civil dispute Regent v Millett (1976) 133 CLR 679 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
On 27 July 2011 the Tribunal made an order that Ms Tremayne pay to Mr Nunn $3,000 within 14 days. That decision came after a lengthy hearing where the learned Adjudicator took evidence from both Mr Nunn and Ms Tremayne, considered a number of documents that were put before her, and gave comprehensive reasons for her decision.
From that decision, Ms Tremayne has filed an application for leave to appeal or appeal in the Appeal Tribunal. Leave to appeal is necessary because this is an appeal from a decision in a minor civil dispute jurisdiction[1]. Having regard to the array of issues before the Tribunal at first instance, the grounds for appeal are limited to a complaint that the Tribunal did not deal with her claim for arrears of rent from Mr Nunn and seeks an order that her application be referred back to the Tribunal for determination of that issue as a minor debt matter.
[1] QCAT Act, s 142(3).
To appreciate the nature of the relief sought some historical background is necessary. Both Mr Nunn and Ms Tremayne both filed separate applications in the Minor Civil Disputes jurisdiction. Mr Nunn’s claim was for $4,225.73 for monies lent to Ms Tremayne to purchase a Suzuki Ignis hatchback plus some extra money for mechanical services and registration.
Ms Tremayne’s claim on the other hand is for $9,957.88 which included claims for unpaid rent, electricity, wages and other unpaid bills whilst Ms Tremayne and Mr Nunn were living together in a house owned by Ms Tremayne’s parents. There was also a claim for unpaid wages and monies owing for a king size bed.
In her reasons, the learned Adjudicator only dealt with two matters in claim 269/11. The first was a claim for unpaid wages of $936 and the second was the recovery of a loan or debt owed by Mr Nunn to Ms Tremayne of $230. The balance of the claim, that is, arrears of unpaid rent, electricity, wages and other unpaid bills, was struck out ‘for want of jurisdiction’ as she took the view she did not have jurisdiction to hear those matters as a minor civil debt when they related to rental arrears and unpaid accounts ‘in the current format that they have currently been filed’ as they arose out of a domestic relationship.
The basis for this finding can be gleaned from the transcript of evidence (page 35) where the learned Adjudicator explained the difficulties she was confronted with. She noted that Ms Tremayne and Mr Nunn were living in a domestic relationship sharing expenses which included the rent. The evidence that was put before her by Ms Tremayne, to calculate the rent and any money owing, was in such disarray that it would take a considerable amount of time to go through each item to determine what, if anything, was owed to Ms Tremayne. The learned Adjudicator expressed concern that the recovery of the rent as a debt may have been the incorrect process and the better approach was to mount a claim under the Residential Tenancies and Rooming Accommodation Act 2008. In support of her contention that it was a debt or liquidated demand within the definition of a minor civil dispute under the QCAT Act, Ms Tremayne relied on the agreement between her and Mr Nunn that he had agreed to pay rent of $200 per week and also pay half the electricity and some other expenses.
To further complicate matters, Ms Tremayne did not produce any ledger or schedule of rent paid in the nature of a running account, perhaps of the type referred in s 89 of the RTRA to assist in determining what might be owing. It seems Ms Tremayne was unable, in an efficient manner, to identify from her records, the exact amount of rent claimed and other amounts she alleged owed by Mr Nunn. It was for that reason that the Tribunal did not consider that part of the claim.
It needs to be appreciated, and it has been said on many occasions, the Minor Civil Dispute jurisdiction is an extremely busy one. There is limited time to trawl through the copious documentary evidence that is often presented in an unruly and haphazard manner at hearing to try and shore up a party’s case.
By contrast, the bank statement evidence presented by Ms Tremayne in support of the appeal highlights where rent has been paid, presumably in accordance with the agreement and also identifies where there is a shortfall in the rent. Ms Tremayne has then gone to the trouble of preparing a schedule which shows rent paid, by reference to the bank statements, and the alleged shortfall. The apparent arrears of rent now claimed, with some precision, is $6,390.00. The balance of $3,567.98 is for electricity, pest inspection and household chattels purchased, it is alleged, on behalf of Mr Nunn.
[10] In his response to the appeal, Mr Nunn does not specifically deny that there was an agreement between him and Ms Tremayne that he would contribute to the rent by paying $200 per week. His position on the rent issue is ‘… no lease was ever signed between Ms Tremayne and the owner of the property 10 Eaton Drive, Oxenford, Qld 4210. The owners of the property were, and still to my knowledge are, Ms Tremayne’s parents. Nor was any lease signed between Ms Tremayne and myself at any time, as we were partners in a de facto relationship’.
[11] With respect to the last point, the learned Adjudicator found that they were living in a domestic relationship, but that relationship did not fall within Pt 9 of the Property Law Act dealing with de facto relationships. There is no reason to disturb that finding. Even if they were in a formal de facto relationship this does not prevent the Tribunal from finding that there was a mutual agreement that Mr Nunn would indemnify Ms Tremayne for half of the rent for the right to reside in the premises.
[12] The question for consideration here is whether Ms Tremayne has established that there is an arguable case of error in the primary decision maker or there is a reasonable prospect that she will obtain substantive relief if leave to appeal was granted. In accordance with stated principles, leave to appeal should be granted to correct a substantial injustice.
[13] Ms Tremayne has not identified any error on the part of the learned Adjudicator when one has regard to the position she was placed in when trying to deal with a volume of evidence which was not presented in a coherent and understandable way. The learned Adjudicator may have misdirected herself in that she considered the application by Ms Tremayne should have been in a different form given that it was essentially a residential tenancy matter. However, the evidence also strongly points to an agreement between Ms Tremayne and Ms Nunn that he would pay $200 per week to her, not as a lessor, but as a sub-tenant. The evidence also established that he has paid rent consistent with the agreement alleged.[2]
[2] Regent v Millett (1976) 133 CLR 679.
[14] The definition of a minor civil dispute not only includes a tenancy matter but also a claim to recover a debt or liquidated demand.[3] Ms Tremayne is claiming the rent as a debt and therefore I see no difficulty in that type of case being dealt with as a minor civil dispute providing sufficient facts are laid before the Tribunal to establish the agreement and that money is owed under that agreement. I am somewhat fortified in that view because firstly, Mr Nunn does not deny that that was such an agreement in his response to the application for leave to appeal and secondly, he did pay rent, regularly, seemingly in line with the agreement reached with Ms Tremayne.
[3] QCAT Act, sch 3 definition of minor civil dispute.
[15] The learned Adjudicator did not say that Ms Tremayne did not have a remedy. She was quite clear in saying that she could still apply to the Tribunal to recover the rent and other expenses providing she put the evidence in support of her case in order and went about it in a different fashion.
[16] It is the Tribunal’s function to ensure that proceedings are conducted in a way that is informal and minimises costs to the parties. The function of the Appeal Tribunal is to correct error and injustice if there has been error in the primary decision. Here, although the learned Adjudicator was in error in striking out Ms Tremayne’s application because the claim for rent was not made as residential tenancy matter with the appropriate form, she was entitled to do so because of how the evidence was presented. She could of course have adjourned Ms Tremayne's application for the rent but this may not have addressed the fundamental problem with how the evidence was presented.
[17] It seems that there are sufficient grounds to grant leave to appeal at the very least on the issue of rental arrears and other expenses. As leave is granted on a question of law the Appeal Tribunal can set the decision aside and return it to the Tribunal for reconsideration.[4] It seems to me that this is the preferable course as I am not in a position to make a final determination of those issues on the evidence before the Appeal Tribunal. I will also direct that the reconsideration be restricted to the claims made in the appendices to Ms Tremayne’s submissions filed in the Appeal Tribunal on 27 September 2011 and a copy of those documents be copied and returned with the file in applications number 152/11 and 269/11 (Southport) together with the transcript of evidence in the original hearing. As Ms Tremayne’s application did not challenge the orders made for the payment of money to Mr Nunn, those orders will remain in force.
[4] QCAT Act, s 146.
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