A tenant refused entry to a Sunshine Coast apartment she signed up to rent has been awarded compensationfor the landlord’s unlawful breach of lease by a court that Supreme Court Justice Tim Carmody ruled had denied him natural justice.

tenantDavid Hassard claims he barred occupation of the home because agent Peter Kennedy Realty Pty Ltd “tricked him into agreeing to the tenancy” by misrepresenting the suitability of the occupant.

He did so – he says – “to protect the premises against the likely breach by tenant Tammie McInness of the obligation not to damage the premises and not behave objectionably”.

That decision led to an order by Magistrate Anette Hennessy that he compensate McInness $4.7k for additional rent and storage costs incurred.

Justice Carmody – sitting in the appeals jurisdiction of the Queensland Civil and Administrative Tribunal (QCAT) – agreed she was entitled to be compensated for the two months’ notice period required for a lessor’s termination without grounds.

Noting that “more generous” (than in tort or contract) statutory compensation can include damages for non-economic losses, he concluded the amount Hassard should have been made to pay was $1.6k.

By failing to take into account the rent that McInness would have in any event had to stump up to Hassard, the magistrate mis-calculated compensation and misapplied the law to the decided facts.

More fundamental to the former chief justice was that the magistrate decided the matter ‘on the papers’ without any hearing that would have given Hassard an opportunity to be heard.

“Fairness called for an oral hearing to resolve disputed facts, assess the respondents excuse for his actions and address issues regarded as pertinent,” he wrote.

Although QCAT “conducts proceedings much more informally and effectively than traditional courts” he observed, “it must not only be fast and economical but – to ensure ‘natural justice’ – accessible, fair and just”.

On the grounds of those errors of law – and to allow the landlord to air his complaints against the letting agent – Justice Carmody set aside the original orders and remitted the case for re-hearing.

Hassard v McInnes [2016] QCATA 021 Justice Carmody 02/02/2016


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