Cuda v Moriconi
[2014] QCAT 83
| CITATION: | Cuda v Moriconi [2014] QCAT 083 |
| PARTIES: | John Cuda (Applicant) |
| v | |
| Grazaino Moriconi (First Respondent) Vilma Moriconi (Second Respondent) |
| APPLICATION NUMBER: | MCDT7-14 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 24 February 2014 |
| HEARD AT: | Mareeba |
| DECISION OF: | Magistrate Braes |
| DELIVERED ON: | 28 February 2014 |
| DELIVERED AT: | Mareeba |
| ORDERS MADE: | 1. Application dismissed. |
| CATCHWORDS: | MINOR CIVIL DISPUTE - residential tenancy - notice to leave with/without grounds - end of tenancy Residential Tenancies and Rooming Accommodation Act 2008 (Qld) Lamont v Ray White Birkdale [2011] QCATA 235 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
I have before me an application for termination of a residential tenancy.
In this matter the onus of proof is upon the Applicant to establish the claim, and the standard of proof is on the balance of probabilities; that is, which version of events I find more probable.
Although the cause of action arises under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the Act) proceedings are conducted under the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
In considering the evidence, it is my function to make such order as I consider to be fair and equitable to both parties, after considering all evidence and after considering natural justice, and I proceed on that basis.
In this matter the parties were given every opportunity to settle the dispute, but they were unable to do so.
I do not propose to traverse by way of comments, the evidence given, in any detail at all.
The Applicant is represented by Mareeba Property Management, Mr Cavanagh and Mrs Carabot appearing at the final hearing of the matter. The Respondents appeared unrepresented.
The agreement the subject of the dispute is a tenancy agreement entered into on 26 July 2013 in respect of premises situated at 5 Gallo Drive Mareeba for a period starting on 26 July 2013 and ending 25 January 2014.
The tenancy agreement discloses the lessor as “G & M Cuda”. It is apparent this is a reference to Mr John Cuda and Ms Malvina Cuda the owners of the property. The application for termination has been brought in the name of Mr John Cuda only.
After the matter was first adjourned to enable Mr Cavanagh to respond to the Respondents submissions an application was lodged with the Tribunal by Mr Cavanagh seeking to amend the application by adding Ms Malvina Cuda as an Applicant.
The grounds of that application are:-
“That Ms Malvina Cuda be recognised and joined as part owner of the property 5 Gallo Drive Mareeba, and wish to correct an amend the mistake on the previous lodged application T 7-14. Ms Malvina Cuda is aware of the current tribunal hearing and has authorised Mareeba Property Management verbally to lodge the termination order”
“The documents, I, Sam Robert Cavanagh refered to for the original application only displayed Mr John Cuda as the current owner, however was a document error and when referred to the General Tenancy Agreement and signed PAMD, Ms Malvina Cuda was present as part owner. The error was caused by a misrepresentation of information provided during lodgement.”
No other documentation has been lodged to support the application to join Ms Cuda as a party to the current application. As was pointed out to Mr Cavanagh I would have expected there would have been an appointment of agent form which could have been lodged to support the grounds of the application.
It became obvious during the hearing that Mr and Mrs Cuda are separated, it is therefore very important that proper authority be established for the application, particularly as there are allegations made by the Respondents that the lessors are happy with their occupancy of the premises and that they have no control over the real estate agent bringing this application.
It appears obvious the parties have dug themselves into their respective trenches and now are content to throw hand grenades at one another. There are allegations by the Respondents that the agents are taking retaliatory action against them because of their insistence on the agents complying with the legislative provisions when it comes to giving notices for inspection of the property.
As was pointed out to the Respondents it is very difficult to prove claims of retaliatory action.
Although there is insufficient evidence to establish the agent’s motive as being retaliatory, the fact the notice to leave was given a short time after the Respondents had requested the agent reconsider an inspection notice, which the Respondents believe had been given inappropriately, does support an argument that the agent was being retaliatory.
Although the actions of the agent may raise the suspicion of retaliatory action there is no evidence to support a finding that the notice to leave was given in retaliation for the Respondent’s stance in respect of the various actions taken to that stage by the agent.
Additionally the notice to leave is expressed as being given “with grounds” and is therefore not subject to s 291 considerations.
I am satisfied the Notice to leave (Form 12) was issued by the agent on 17 October 2013 and served on that date.
I am satisfied the notice allows sufficient time in accordance with the Act for the Respondents to vacate the premises. Having said that if the notice is to be a valid notice for termination of the tenancy at the expiration of the term of the tenancy, the notice period should comply with s 329(2)(k).
As the tenancy expired on 25 January 2014 the notice should have been expressed to provide vacant possession on that date.
I am satisfied that the Applicant has filed the application in the Tribunal within the time set out in s 293(2) of the Act.
The question to be determined is whether the Notice to leave (Form 12) is a valid notice.
The Respondents argue that the notice is not a valid notice and rely on the decision of Lamont v Ray White Birkdale [2011] QCATA 235 where QCAT member Ms Stilgoe said at [7]:
“Although the notice to Mr Lamont was expressed to be a notice to leave with grounds, the only ground nominated was that the lease agreement was coming to an end. It is, in fact, a notice without grounds and therefore is invalid. A landlord cannot avoid the application of s 291 of the RTRA Act simply by placing a cross in the “with grounds” box rather than the “without grounds” box. Similarly, the learned adjudicator had no power to “convert” it to a valid notice.” [Italics added]
I’m not required to give consideration to provisions to s 291 however a similar principle as referred to by Ms Stilgoe is relevant to my consideration of the validity or otherwise of the Notice to leave (Form 12) in this matter.
The Applicant’s submission in respect of the validity of the Notice to leave (Form 12) is somewhat confused and difficult to follow however the Applicant says in part:
“Mareeba Property Management concludes the Tribunal will consider the Form 12 as acceptable in accordance with s 349(1) of the RTRA Act. If an application is made to a tribunal by a lessor for a termination order because of a failure to leave, the tribunal may make the order if it is satisfied it is appropriate to make the order in all circumstances of the case, even though the notice to leave contains a defect”
The tenancy agreement entered into between the parties was a tenancy agreement for a fixed term. The landlord is entitled to expect the tenant will remain in possession during the term of the agreement and the tenant is entitled to expect the landlord will give the tenant quiet enjoyment of the premises during the full term of the tenancy.
For a tenancy to be terminated by the lessor the provisions of the Act need to be strictly complied with. The relevant provisions are s 277, 281 et seq, 291, 293 et seq, 326, 328, and 329.
The Act does not make it entirely clear what the correct procedure to adopt is when the lessor wants to give notice of termination of the tenancy at the expiration of the term of the tenancy. Is a notice to leave which is given at the end of a tenancy, a notice to leave “with” or “without” grounds? There is nothing in the Act to suggest the end of the tenancy amounts to grounds for the termination of the agreement. Section 277 of the Act does not specifically state an agreement ends on the last day of the tenancy.
Assistance in determining the correct procedure to be adopted may be found in s 329 (similar provisions set out in s 331(2) (g)).
Section 329(2)(k) appears to suggest that the procedure for giving notice to leave at the end of a fixed term tenancy, where no other grounds exist, is a notice without grounds.
In Lowe v Aspley [2010] QCATA 59 at [10] Judge Kingham said:
“While Mr Lowe owed further rent after he remedied the breach that had been notified, that did not provide the factual basis for commencing proceedings to terminate the tenancy agreement. The RTRA is prescriptive about the requirements for issuing notices and commencing proceedings. The consequences that can flow from the tenants failure to comply with notices issued under the RTRA explains the degree of prescription. If the tenant fails to comply with validly issued notices, the agent is entitled to commence urgent proceedings, without the need to enter into discussions with the tenant in an effort to resolve the dispute. The end point of that process is an order to terminate the tenancy.”
“The requirements are not merely a matter of form; they are preconditions to QCAT’s jurisdiction to grant relief under the RTRA. The path that the agent took to proceedings in QCAT in this case required a series of steps to be taken in order. Each stood like one in a line of dominoes. If one fell it brought the others down with it.” [italics added]
The same line of reasoning is often seen in applications where the Notice to remedy breach (Form 11), the Notice to leave (Form 12), and the application to the Tribunal do not comply with the strict time requirements calculated in accordance with the Acts Interpretation Act.
The effect of terminating a tenancy is a serious matter and one which cannot be taken lightly or in circumstances where strict compliance with the law has not been followed.
Section 326 of the Act provides amongst other things that a notice to leave premises must state;
(1) the ground on which notice is given; or
(2) the notice is given without ground;
(3) and unless the notice is given without ground - give particulars of the ground on which the notice is given.
It is apparent from the wording of the Act that it is intended a Notice to leave issued at the expiration of the tenancy agreement should be given as a notice without ground.
Section 349 allows the Tribunal to make a termination order if satisfied it is appropriate to make the order in all of the circumstances of the case, even though the notice to leave contains a defect.
This application has been commenced in the name of Mr Cuda only; the agent has applied to the Tribunal to amend the application by including Ms Cuda to the application.
If the amendment of the application by including Ms Cuda was the only matter that required consideration, then subject to other orders which would allow the Respondents time to consider the amended application and file any further material in reply; the application would probably be granted.
In this case the real issue is whether or not the Notice to leave (Form 12) is valid and whether or not the Tribunal may Act under s 349 notwithstanding any defect.
The Notice to leave (Form 12) is said to be with grounds being “the owner wants vacant possession of the abovementioned property”
The fact that “the owner wants vacant possession” is not of itself a ground as envisaged by the Act.
The evidence supports a finding that the notice was issued because the tenancy was coming to an end and the lessor did not with to renew the tenancy agreement.
The notice should have been given without grounds pursuant to s 329(2) (k) and s 326(1) (e), and (f).
I find that the Notice to leave (Form 12) to be invalidly issued.
The next question to be determined is whether or not the Tribunal may make an order under s 349 notwithstanding that the pre-jurisdictional requirements of issuing a valid notice have not been complied with.
It appears to me that s 349 does not apply in circumstances where the fault in the process goes to the very heart of the matter and where the process fails at first instance to enliven the jurisdiction of the Tribunal.
Additionally in all of the circumstances of the case it would be inappropriate to make a termination order.
For the reasons expressed above the application is dismissed.