Alterine Pty Ltd v Corbett

[2021] QCATA 2

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Alterine Pty Ltd v Corbett [2021] QCATA 2

PARTIES:

ALTERINE PTY LTD
(applicant)

v

DOMINIQUE ANN CORBETT

(respondent)

APPLICATION NO/S:

APL025-20

ORIGINATING APPLICATION NO/S:

MCDT 1451/19

MATTER TYPE:

Appeals

DELIVERED ON:

4 January 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

1.   Leave to appeal granted.

2.   Appeal allowed.

3.   The Orders made on 10 December 2019 are set aside.

4.   The proceedings instituted by Application MCDT 1451/19 are remitted to a different Adjudicator for rehearing to determine whether major or structural repairs are required to the property sufficient to issue the Notice to leave dated 23 October 2019.

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

6.   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 hearing.

CATCHWORDS:

LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – where fixed term tenancy - where Act provides for ending of tenancy by written agreement - where notice to leave issued pursuant to written agreement to end tenancy – where notice was without grounds – where notice not outside ambit of Act

APPEAL AND NEW TRIAL – LEAVE TO APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where finding of invalidity of notice to leave was error of law – where failure to make findings of fact – where matter remitted for rehearing

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143, s 146
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 54, s 277
Residential Tenancies and Rooming Accommodation Regulation 2009 (Qld), Schedule 1, cl 36

Alikhan v Mian Prestige Real Estate t/as Ray White Runaway Bay [2010] QCATA 21
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Glynn v Brown & Anor [2016] QDC 313
McLachlan v Real Tenants – Real Property Management [2011] QCAT 665
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

REPRESENTATION:

Applicant:

J O’Brien of Small Myers Hughes Lawyers

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. Alterine Pty Ltd rented a residence to Dominique Corbett since 8 February 2013. On 10 December 2019, an Adjudicator set aside its Notice to leave dated 23 October 2019 and dismissed its counter-application seeking declaratory orders.

2. Alterine has applied for leave to appeal the decision.[1]

   [1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143(3).

3. In determining whether to grant leave, the Tribunal will consider established principles including:

   (a)whether there is a reasonably arguable case of error in the primary decision;[2]

   (b)whether there is a reasonable prospect that the appellant will obtain substantive relief;[3]

   (c)whether leave is needed to correct a substantial injustice caused by some error;[4] and

   (d)whether there is a question of general importance upon which further argument, and a decision of the Appeal 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, 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, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.

4. The learned Adjudicator is to be commended in her conduct of an extended two-hour hearing that would normally be allocated fifteen minutes in the busy ‘minor civil disputes’ jurisdiction, where thousands of applications are processed and determined each year.

5. Having gone to considerable lengths throughout the hearing to allow the parties to give evidence and make extensive submissions on very fine and complex points of law, the learned Adjudicator succinctly summarised the parties’ positions, and correctly identified the relevant provisions and law.

6. It was not an error for the Adjudicator to find that the Residential Tenancy Agreement extension dated 16 January 2019 was for a fixed term until 9 February 2024 in circumstances where it provided for a tenancy terminable under a defect clause or sale clause.[6] The event was a contingency only that did not operate to convert the fixed tenancy to a periodic tenancy.

   [6]Grounds of Appeal, paragraph (a).

7. However, the Appeal Tribunal is satisfied that leave should be granted and the appeal allowed due to the following errors of law:

   (a)Finding that section 54 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the Act) rendered the defect clause and sale clause void to the extent of their inconsistency with a fixed term agreement until 9 February 2024;[7] and

   (b)Failing to find that the extension was an agreement for termination of the tenancy pursuant to section 277(2) of the Act, Schedule 1 clause 36 of the Residential Tenancies and Rooming Accommodation Regulation 2009 (Qld)[8] and clause 36 of the General Tenancy Agreement dated 9 February 2013.

   [7]Grounds of Appeal, paragraph (b).

   [8]Grounds of Appeal, paragraph (c).

8. The Notice to leave was not rendered inoperable by section 54 of the Act, because it was issued pursuant to an agreement to end the tenancy as contemplated by section 277(2). Section 277 of the Act prescribes the only ways a residential tenancy agreement ends. Section 277(2) provides for ending by written agreement of the parties. The parties signed a written agreement to end the tenancy as follows:

   Should major or structural repairs be required to the property then the owner has to (sic) option to either repair or end the rental agreement (to demolish the property) with (sic) 2 months (sic) notice in writing to the tenant.[9]

   [9]Extension of Residential Tenancy Agreement dated 16 February 2019.

9. Section 277(2) does not impose any temporal connection between the agreement to end the tenancy and the ending of the tenancy. It does not fetter the period when the parties may agree to end a tenancy. This leaves it open for the parties to agree at any time to end the tenancy. The landlord and tenant had agreed that on the happening of an event, the landlord had the right to end the tenancy – upon giving notice.

10. Because it was not issued for a ground, the Notice was without grounds[10] – issued pursuant to the written agreement to end the tenancy, as allowed by section 277(2) of the Act.[11] The Notice was therefore not issued outside the ambit of the Act. The learned Adjudicator’s findings to the contrary were errors of law. Leave to appeal should be granted and the appeal allowed. The decision of 10 December 2019 is set aside.

    [10]McLachlan v Real Tenants – Real Property Management [2011] QCAT 665, [17] citing Alikhan v Mian Prestige Real Estate t/as Ray White Runaway Bay [2010] QCATA 21 (Wilson J).

    [11]Glynn v Brown & Anor [2016] QDC 313, [94] – [95].

11. Having determined the Notice was invalid, the learned Adjudicator failed to make findings relating to whether major or structural repairs were required to the property, sufficient to issue the Notice.[12] Whether or not the event triggering the Notice arose is a question of fact. Although the learned Adjudicator considered evidence relating to the condition of the property, this was within the context of liveability.[13]

    [12]Grounds of Appeal, paragraph (d).

    [13]Transcript, page 1-26, lines 1 to 3; page 1-28, lines 24 to 44; page 1-29, lines 1 to 7; page 1-34, lines 20 to 45; page 1-35; page 1-36, lines 1 to 30; page 1-39, lines 34 to 47; page 1-41, lines 31 to 43.

12. It is therefore appropriate that the matter be remitted for rehearing before a different Adjudicator, [14] who will be in the best position to assess credibility upon hearing all the evidence from the parties and make appropriate findings about whether major or structural repairs were required to the property sufficient to issue the Notice to leave dated 23 October 2019.

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

13. Because the Notice was issued on 23 October 2019, the Tribunal will need to make findings about the condition of the property at that time. The rehearing will therefore proceed on the basis of testimony at the rehearing together with the evidence already filed by the parties. 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.

14. Alterine also submitted an alternative ground of appeal that having found the defect and sales clauses to be void and of no effect, the learned Adjudicator then erred in failing to find that the entire extension agreement was unenforceable.[15] However, because the findings about the clauses being void and of no effect were errors of law, this alternative ground of appeal is otiose.

    [15]Grounds of Appeal, paragraph (e).