Worchild v Young & Ors
[2008] QSC 81
•28 April 2008
SUPREME COURT OF QUEENSLAND
CITATION:
Worchild v Young & Ors [2008] QSC 81
PARTIES:
ANDREW WORCHILD
(applicant)
v
ROBERT YOUNG
(first respondent)
and
GARY PASK
(second respondent)
and
MARGARET PASK
(third respondent)FILE NO:
9643/07
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
28 April 2008
DELIVERED AT:
Brisbane
HEARING DATE:
6 December 2007
JUDGE:
Daubney J
ORDER:
(1) The application for statutory order of review filed 29 October 2007 be dismissed.
(2) The applicant, Andrew Worchild, pay the first, second and third respondents’ costs of and incidental to the application, including the costs of the interlocutory application filed 21 November 2007 and any reserved costs, to be assessed on the standard basis.
CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where the applicant sought review of an order of the Small Claims Tribunal (“the Tribunal”) providing for the termination of a residential tenancy agreement on the grounds that that the Tribunal did not have jurisdiction to hear the matter and/or that there had been a breach of natural justice – where the respondents applied under section 48 of the Judicial Review Act 1991 for an order dismissing the application for review – whether there was any merit to the applicant’s submissions that the respondents were not the lessor within the meaning of the Residential Tenancies Act 1994 – whether the hearing before the Tribunal had involved a denial of natural justice
Judicial Review Act1991 (Qld)
Residential Tenancies Act 1994 (Qld)
Small Claims Tribunals Act 1973 (Qld)COUNSEL:
The applicant appeared on his own behalf
J A McNab for the First, Second and Third respondentsSOLICITORS:
The applicant appeared on his own behalf
Allan Dick Solicitors for the First, Second and Third respondents
Since November 2002 the second and third respondents, Mr and Mrs Pask, have owned Unit 12 in the ‘Valencia’ apartment building at 14-16 Darrambal Street, Chevron Island. The first respondent, Mr Young, and his wife have been the managers of the apartment complex since February 2004. Prior to that, the management of the apartment complex, including Unit 12, was performed by Mr Neil Johnson and Mrs Robyn Johnston via their company Aquatic Management Pty Ltd.
On 24 September 2003, the applicant, Mr Worchild, executed a general tenancy agreement relating to Unit 12 for a term of six months from 23 September 2003. The ‘Lessor’ named in item 1 of the Schedule to that agreement was ‘GE & ME Pask & Neil & Robyn Johnson’. Item 3 of the Schedule named the ‘Lessor’s Agent’ as ‘Neil Johnson – Aquatic Mgmt P/L’. The agreement incorporated the standard conditions for a general tenancy agreement then provided for by s 5 and Schedule 1 of the Residential Tenancies Regulations 1995. Clause 44 of those standard conditions provided:
‘44.1The name and address for service of the lessor’s agent is stated in item 3.
44.2Unless a special term provides otherwise, the agent may –
(a)stand in the lessor’s place in any application to a tribunal by the lessor or the tenant; or
(b)do anything else the lessor may do, or is required to do, under this agreement.’
This agreement was, as noted, for a fixed term of six months. There was no special term providing for the continuance of the agreement after the term ended, and accordingly cl 6.2 of the standard conditions was operative:
‘6.2 This agreement (other than any term about this agreement’s term) continues to apply on the basis that the tenant is holding over under a periodic tenancy.’
Mr Worchild stayed in occupation of Unit 12 after the fixed term of six months had expired, and by cl 6.2 was a periodic tenant.
By March 2004, Mr Young had become the manager of the apartment complex. He says that he approached Mr Worchild with a view to having Mr Worchild sign a new tenancy agreement with effect from 24 March 2004. A copy of that proposed tenancy agreement is exhibited to Mr Young’s affidavit. Mr Worchild did not execute that proposed tenancy agreement.
In September 2004, Mr Young gave Mr Worchild written notice of an increase in rent and asked him to sign a new tenancy agreement for a term of six months. Notwithstanding this notice, Mr Worchild continued to pay rent at the old rate and did not sign this fresh tenancy agreement.
On 18 September 2004, Mr Young gave Mr Worchild a Notice to Leave in the prescribed form, by which he gave Mr Worchild two months notice to vacate the premises. Mr Worchild refused to leave and, consequent upon an application made on 1 December 2004 to the Small Claims Tribunal (‘the Tribunal’), the Tribunal ordered that Mr Worchild vacate the premises within one month.
Mr Worchild did not vacate the premises. On 24 March 2005, he wrote to Mr Young stating, inter alia:
‘I refer to the above matter and in particular your conduct as letting agent for the Lessors (the Pasks) between 1 September 2004 and 1 January 2005.
...
On the 19 December 2004 I had discussions with Gary Pask in person (the Lessor) and I was informed that he did not authorise or direct you to engage in the conduct that you have engaged in aforementioned.’
I interpolate here that it would appear to be correct that Mr and Mrs Pask did not know of the action taken by Mr Young in the Tribunal. It would seem that, after the Tribunal made the order on 1 December 2004, Mr Worchild applied to have that order vacated. Mr Pask became aware of the Tribunal proceedings when served with Mr Worchild’s application. Mr Pask says in his affidavit filed before me:
‘Neither [Mrs Pask] of [sic] myself were aware of [Mr Young’s] actions in connection with the Notice to Leave, and subsequently decided not to defend the matter and instead to contact [Mr Worchild] directly to bring about a resolution.’
On 19 December 2004, Mr Pask delivered a letter in the following terms to Mr Worchild:
‘I have tried to visit you several times in recent days to discuss this matter of Notice to Leave – without success – so, I though [sic] that a note would be the best means of communicating with you (as I don’t have a phone number for you either).
I became aware of this matter for the first time in the last few days – when Bob Young (finally) faxed me a copy of the Notice of Adjournment for the hearing on 20th December. Until then, I had absolutely no idea that this “matter” was happening at all as Mr Young had not advised me of his intentions or actions. He says (now) that he was “acting in my best interest” – to which I have told him that he should have discussed this matter with me before progressing it as he did.
Now – I do not intend to attend the hearing on Monday as I work in Sydney and will be there on Monday as usual. So, I gather the hearing would proceed without my presence. I expect that you have better things to do too.
I have no particular reason to see you leave the unit – as I gather that you are a good tenant in terms of paying rent on time etc. I further gather that Mr Young’s main “issue” is that you will not sign a new Tenancy Agreement. Whilst any investment property owner wants a signed tenancy agreement – to provide clarity of the landlord/tenant relationship – I am prepared to discuss the reasons you have for your attitude and to agree with the implications of your “position” are. Clearly the uncertainty of your continued tenure impacts on the level of rent that is reasonable for the unit. I understand from Mr Young that your current rent level is considerably below “market” – but I am confident that we can agree a mutually acceptable figure.
I hope you can see that I have not instigated this “Notice” matter – and that I am keen to discuss the matter with you in a friendly manner. I am quite happy to open communication with you instead of “via” Mr Young. Please call me on 0419591518 so that we can open communication.’
On 20 December 2004 the Tribunal set aside the order it had made on
1 December 2004.
On 20 January 2005 Mr Worchild wrote to Mr and Mrs Pask asking them to confirm that they had not authorised or directed Mr Young to engage in the conduct he did between September and December 2004. This letter stated, inter alia:
‘I refer to the above matter and in particular the conduct of Mr Young as agent for your apartment Lot 12 Valencia Apartments.
...
I have the copy of the letter under your hand dated 19 December 2004 and as your [sic] would be aware that the lease is in the names of GE & ME Pask I require a statement from Mrs Pask to confirm that both lessors did not authorise or direct Mr Young to engage in the conduct that he did over the last few months ...’
The ineluctable inference from the terms of Mr Worchild’s letter to Mr and Mrs Pask of 20 January 2005 and his letter to Mr Young of 24 March 2005 is that from (at latest) Janaury 2005, Mr Worchild knew, as was the fact, that his landlords were Mr and Mrs Pask and that Mr Young was the landlord’s agent, and I find accordingly. Moreover, it is clear that Mr Worchild knew and understood that he occupied the premises pursuant to a periodic tenancy containing the same terms (other than that relating to the term) as the fixed term tenancy which had expired in 2004. So much is clear from the following statement by Mr Worchild in another letter to Mr and Mrs Pask dated 20 January 2005:
‘In relation to the tenancy agreement, I entered into a fixed term agreement on the 23 September 2003 for a period of six months. At the end of the fixed term the contract became a periodic agreement. Namely the terms of the fixed term contract continue indefinitely. I have been occupying the premises on the basis of a periodic agreement. This is an express provision of the contract refer to clause 6.’
My findings that Mr Worchild knew and understood these matters is also made in the context that Mr Worchild was a solicitor, and signed some of the correspondence (e.g. the letter to Mr Young of 25 May 2005) in that capacity, although by the time of the hearing before me, in which Mr Worchild represented himself, he no longer held a practising certificate.
On 10 March 2007, Mr and Mrs Pask wrote to Mr Worchild advising that they had conducted a rent review of the property and that, from Wednesday 16 May 2007 the rent would be increased to $195 per week.
Mr Worchild did not pay the increased rental, and Mr and Mrs Pask instructed Mr Young, their agent, to issue to Mr Worchild a Notice to Leave pursuant to s 193 of the Residential Tenancies Act 1994 (‘RTA’). The notice served on Mr Worchild was in the prescribed form, was dated 29 May 2007, and required Mr Worchild to hand over the property at midnight on 29 July 2007.
On 2 July 2007, Mr Worchild wrote a letter addressed to Mr Young, which was passed to Mr and Mrs Pask. That letter stated, inter alia:
‘I acknowledge receipt of your Notice to Leave form dated 29/5/07 and under your hand. Taking into consideration your previous conduct and the discussions I have had with Mr Pask namely that he did not authorise you to engage in the conduct that you have engaged in previously and that I should commence proceedings against you and leave the Pasks out of the matter, I require confirmation from the Lessors that you are in fact acting upon their instructions and that your conduct has been authorised by them.’
On 10 July 2007, Mr and Mrs Pask wrote to Mr Worchild in the following terms:
‘We understand that in your letter “Entry Notice” of 2 July 2007 to Mr R Young, that you requested confirmation that Mr Young is authorised to act on our behalf and in accordance with our instructions in the issuance of the Notice to Leave, dated 29 May 2007.
We hereby confirm that to be the case – in this instance, Mr Young is acting with our authority and in accordance with our instructions to issue the Notice.
We understand that the Notice is issued in accordance with the requirements of the Residential Tenancies Act 1994 (Section 193) and we expect that you will vacate the premises by midnight on 29th July 2007. We also expect that you will leave the premises in the appropriate order necessary to effect a refund of your Bond less any outstanding rent not paid.
In this connection, we note that you were served with a Rent Review notice dated 10 March 2007 that clearly notified you that effective from Wednesday 16th May 2007 the rent would increase to $195.00 per week. We understand from Mr Young that you haven not made rent payments in accordance with the reviewed rent rate and that your rent continues to go further into arrears.
We look forward to you bringing your rent up to date and vacating the premises in accordance with the Notice to Leave on or before 29th July 2007.’
On 4 October 2007, the Tribunal heard an application made in the name of Mr and Mrs Pask and Mr Young against Mr Worchild, as a consequence of which application the Tribunal made the following order:
‘Take notice that this claim was heard before the Small Claims Tribunal at SOUTHPORT on the 4th of October 2007, and the following order was made:
The Residential tenancy agreement between the parties be terminated on the 04.10.2007 on the grounds of
THE APPLICATION
A Warrant of Possession to issue authorising a police officer to enter the premises at
12/14 DARRAMBAL STREET
CHEVRON ISLAND QLD 4217.
The warrant shall take effect on 04.10.2007 and remain in effect for 14 days, to expire at 4:00pm on 17.10.2007.
The Warrant to be executed as soon as reasonably practicable after taking effect.
Entry under the warrant shall only be between the hours of 8:00am and 4:00pm.It is further ordered that the tenant pay to the lessor compensation in the amount of $505.00 for arrears of rent to 2.10.07, and $13.50 filing fees.
It is directed that the rental bond held by the Residential Tenancies Authority be disbursed as follows:
To the Claimant: $518.50 (in part satisfaction of the claim)
To the Respondent: NILFurther directed that the Residential Tenancies Authority is to retain the balance of the bond until further order of the Tribunal, or by consent of the parties.
The balance of the claim for compensation is adjourned to the Registry, which may be relisted upon written request of the claimant.’
On 29 October 2007, Mr Worchild filed an application for review of the Tribunal’s decision, by which he claimed for the following orders:
‘1. Order that the orders of the Small Claims Tribunal made on the 4/10/07 Claim No 1261/07 be set aside.
2. Order that the proceedings of the Small Claims Tribunal Claim No 1261/07 be stayed permanently.
3. Declarations that the Respondents have no legal standing to commence proceedings against the Applicant in the Small Claims Tribunal.
4. Declarations that the Small Claims Tribunal has no jurisdiction to hear the matter.
5. Such further or other orders as the court seems meet;
6. Costs of and incidental to this application.’
Mr and Mrs Pask and Mr Young have now applied for an order that the application for review be dismissed pursuant to s 48 of the Judicial Review Act1991 (‘JRA’). In the alternative, security for costs is sought from Mr Worchild. In relation to the primary relief sought by Mr and Mrs Pask and Mr Young, s 48 of the JRA provides:
‘48 Power of the court to stay or dismiss applications in certain circumstances
(1)The court may stay or dismiss an application under section 20, 21, 22 or 43 or a claim for relief in such an application, if the court considers that –
(a)it would be inappropriate –
(i)for proceedings in relation to the application or claim to be continued; or
(ii)to grant the application or claim; or
(b)no reasonable basis for the application or claim is disclosed; or
(c)the application or claim is frivolous or vexatious; or
(d)the application or claim is an abuse of the process of the court.
(2)A power of the court under this section –
(a)must be exercised by order; and
(b)may be exercised at any time in the relevant proceeding but, in relation to the power to dismiss an application, the court must try to ensure that any exercise of the power happens at the earliest appropriate time.
(3)The court may make an order under this section –
(a)of its own motion; or
(b)on an application by a party to the proceeding.
(4)The court may receive evidence on the hearing of an application for an order under this section.
(5)An appeal may be brought from an order under this section only with the leave of the Court of Appeal.’
The application to the Tribunal was made pursuant to the provisions of Chapter 4 Part 2 Division 3 of the RTA. The Small Claims Tribunal is the tribunal to which such applications are made.[1] I observe also that s 216 of the RTA requires the Tribunal, if it makes a termination order on an application made other than by a tenant, also to issue a Warrant of Possession.
[1]See definition of ‘tribunal’ in the Schedule 3 dictionary to the RTA, the definition of ‘tenancy application’ in s 4 of the Small Claims Tribunals Act 1973, and s 16(1)(d) of that Act.
Sections 18 and 19 of the Small Claims Tribunals Act 1973 provide:
‘18 Proceedings of tribunals final
(1)Subject to subsection (2), a settlement or an order made by a small claims tribunal shall be final and binding on all parties to the proceeding in which the settlement or order is made and on all persons who under this Act could have become entitled to be joined as a party to the proceeding in which the settlement or order is made, and no appeal shall lie in respect thereof.
(2)Where the making of a settlement or order of a small claims tribunal made in respect of a claim such as section 4, definition small claim, paragraph (c) is relevant to proceedings relating to a cause of action (other than such a claim) brought in a court or tribunal other than a small claims tribunal, an issue estoppel or the principle of res judicata shall not be raised in those proceedings by reason of the settlement or order, or of any agreement on, or finding of, fact expressed by or implicit in the settlement or order.
19Limitation on orders Supreme Court may make for tribunal proceedings
The Supreme Court may not make a statutory order of review or give a declaratory judgment in relation to a proceeding taken, or to be taken, before a small claims tribunal, or in relation to an order made by a small claims tribunal, unless the court is satisfied that –
(a)the tribunal had or has no jurisdiction under this Act to take the proceeding; or
(b)during the proceeding there has been a denial of natural justice to a party to the proceeding.’
It was not in issue before me that Mr Worchild’s application to this Court was for a statutory order of review, and he accepted that, as prescribed by s 19, the only bases on which such an order may be made by this Court is upon the Court being satisfied of either of the matters specified in s 19(a) or (b).
Indeed, in the course of argument, Mr Worchild confirmed that ‘the basis of [his] application is extremely narrow, namely jurisdiction and natural justice’.[2]
[2]Transcript p 17.8.
In respect of the assertion that the Tribunal had no jurisdiction under the Small Claims Tribunals Act1973, Mr Worchild’s submission was that the Tribunal lacked jurisdiction ‘because the applicants before the Tribunal were not the lessor within the meaning of the Residential Tenancies Act.’[3] Mr Worchild’s contention was that, as the fixed term tenancy agreement he had signed in 2003 named Mr and Mrs Pask and Mr and Mrs Johnson as ‘lessor’, the bringing of the subject application before the Tribunal in the name of Mr Young and Mr and Mrs Pask led to an absence of jurisdiction on the part of the Tribunal.
[3]Transcript p 17.22.
There is no substance or merit to this argument. I have already recorded my finding that from, at latest, January 2005, Mr Worchild knew, as was the fact, that his lessors were Mr and Mrs Pask and that their agent was Mr Young. The parties, by their conduct, implicitly accepted that the terms regulating the periodic tenancy which existed between the parties in 2007 when the Notice to Leave was served on Mr Worchild were the same as the standard conditions set out in the 2003 tenancy agreement (other than that relating to the agreement’s term). Mr Worchild’s argument asserted, in effect, that the proceedings should have been brought against him by Mr and Mrs Pask and Mr and Mrs Johnson, they being the named ‘lessors’ on the 2003 tenancy agreement.[4] In view of my findings as to the known facts about the identity of the lessors and the lessors’ agents under the periodic tenancy which regulated the landlord/tenant relationship as at 2007, it is clear that Mr Worchild’s argument on this aspect cannot be maintained.
[4]Transcript p 11.5 – 12.35.
In relation to an alleged denial of natural justice, Mr Worchild’s point was that Mr and Mrs Johnson were not present at the 2007 hearing before the Tribunal, and accordingly natural justice was denied to them.[5]
[5]Transcript p 10.1 – 10.32.
There are two short answers to this submission:
(a)On the facts as I have found them, Mr and Mrs Johnson had no entitlement to be heard at the relevant Tribunal hearing;
(b)In any event, Mr and Mrs Johnson have not complained about the fact that they were not heard.
Accordingly, this point is devoid of merit.
Therefore, having regard to s 19 of the Small Claims Tribunals Act 1973, this Court is precluded from making a statutory order of review in this matter. Accordingly, I find that there is no reasonable basis for the application. In any event, to permit further prosecution of the application for an order for review would, in my opinion, constitute abuse of the process of the Court. An order dismissing Mr Worchild’s application should therefore be made under s 48 of the JRA.
Counsel for Mr and Mrs Pask and Mr Young sought costs on the indemnity basis. However no compelling submissions were put to me to persuade me to depart from the usual course of ordering costs on the standard basis.
Accordingly, I order:
(1)The application for statutory order of review filed 29 October 2007 be dismissed.
(2)The applicant, Andrew Worchild, pay the first, second and third respondents’ costs of and incidental to the application, including the costs of the interlocutory application filed 21 November 2007 and any reserved costs, to be assessed on the standard basis.
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