Giffing v Demy-Geroe

[2021] QCATA 65

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Giffing v Demy-Geroe [2021] QCATA 65

PARTIES:

GEORGE MICHAEL GIFFING
(applicant)

v

ANDREW LEWIS DEMY-GEROE

(respondent)

APPLICATION NO/S:

APL198-20

ORIGINATING APPLICATION NO/S:

MCDT 2538/19

MATTER TYPE:

Appeals

DELIVERED ON:

19 May 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

1.   Leave to appeal granted.

2.   Appeal allowed.

3.   The Order made on 19 June 2020 to dismiss the Application is set aside.

4.   The proceedings instituted by Application MCDT 2538/19 are remitted to the Adjudicator for determination according to law.

5.   The rehearing will proceed on the basis of testimony at the rehearing together with the evidence already filed by the parties, including the evidence filed with this appeal.

6.   Unless the Adjudicator otherwise orders, all witnesses must attend the rehearing in person for cross- examination.  Any application for a witness to attend the hearing by a remote means or by remote conferencing must be made prior to 14 days before the hearing.

CATCHWORDS:

LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – where Tribunal authorised administrator to permit brother to reside in mother’s property - whether residential tenancy – whether boarder or lodger – whether residential tenancy requirements apply - whether compensation payable

APPEAL AND NEW TRIAL – LEAVE TO APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where failure to consider nature of arrangement and whether urgent money claim were errors of law – where matter remitted for rehearing

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 11, s 12, s 32, s 358, s 416, s 433

Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277
Cachia v Grech [2009] NSWCA 232
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

What is this appeal about?

1. Andrew Lewis Demy-Geroe resided in his mother’s property for many years. When his mother lost capacity, the Tribunal appointed his brother, George Michael Giffing, as Administrator.[1] The Tribunal authorised Mr Giffing to permit Mr Demy-Geroe to continue to reside in the property.[2] Conditions were that Mr Demy-Geroe pay below- market rent of $100 per week and he maintain the property and grounds.[3]

   [1]Decision dated 26 October 2016, [2].

   [2]Decision dated 26 October 2016, [8].

   [3]Decision dated 26 October 2016, [8].

2. Mr Demy-Geroe did not pay. He vacated on 17 September 2019. Mr Giffing claimed compensation of $5,103.40. An adjudicator dismissed his claim because it did not comply with residential tenancy requirements.[4] 

   [4]Decision dated 19 June 2020; Transcript dated 19 June 2020, page 1-7, lines 41 to 46; page 1-8, lines 1 to 13, 22 to 27.

3. Unfortunately, the learned Adjudicator did not consider the threshold issue of whether the arrangement was a residential tenancy.[5] Mr Giffing was not given sufficient opportunity to submit evidence about the arrangement. Certainly, he has submitted evidence with his appeal[6] that raises the issue of whether Mr Demy-Geroe was a boarder or lodger.[7] If so, the residential tenancy requirements do not apply[8] and the Tribunal would have jurisdiction to determine the claim as a minor debt.[9] That is not to say that the arrangement is not a residential tenancy. It was simply not considered an issue. This failure to take into account a relevant consideration is an error of law.

   [5]Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 11, s 12.

   [6]Application for leave to appeal or appeal filed 17 July 2020, Attachments B, C, D, F, G; Statement of George Michael Giffing dated 16 July 2020.

   [7]Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 433.

   [8]Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 32(1).

   [9]Unlike Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277.

4. Similarly, if the arrangement was a residential tenancy, the learned Adjudicator did not consider whether the claim was an urgent money claim against the tenant for remaining in possession.[10] If it was, then Mr Giffing did not need to first make a dispute resolution request[11] - at least for the period of occupation after “termination” on 11 September 2019 to vacating on 17 September 2019. This is also an error of law. 

   [10]Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 358.

   [11]Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 416.

5. Leave is granted and the appeal allowed due to these errors of law.[12] The decision of 19 June 2020 is set aside. The matter is to be remitted to the learned Adjudicator to determine the legal nature of the arrangement.[13] Upon doing this, the learned Adjudicator can then make appropriate findings about whether residential tenancy requirements apply and whether any compensation is payable.

   [12]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Cachia v Grech [2009] NSWCA 232, 2.

   [13]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146.

6. The rehearing will proceed on the basis of testimony at the rehearing together with the evidence already filed by the parties, including the evidence filed with the Appeal. To the extent that this is fresh evidence, it is allowed on the basis that it is on its face credible and could have an important impact on the outcome.[14]

   [14]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408.

7. Unless the Tribunal otherwise orders, all witnesses must attend the rehearing in person for cross-examination. Any application for a witness to attend the hearing by a remote means or by remote conferencing must be made prior to 14 days before the rehearing.