Du Preez v Linda's Homes Pty Ltd

[2010] QCATA 2

CITATION: Du Preez v Linda’s Homes Pty Ltd [2010] QCATA 2

PARTIES:	Mr Gary and Mrs Charlotte Du Preez (Applicant)
v
Linda’s Homes Pty Ltd (Respondent)

APPLICATION NUMBER:            APL010-10               

MATTER TYPE: Appeal

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: President

DELIVERED ON:       22 March 2010  

DELIVERED AT:   Brisbane

ORDERS MADE:

1. Application for leave to appeal granted

2. Appeal dismissed

CATCHWORDS : 

RESIDENTIAL TENANCIES – NOTICE TO LEAVE FROM LESSORS AGENT TO TENANTS – NOTICE WITHOUT GROUNDS – Whether notice affected because fixed term tenancy agreement coming to an end – Whether notice retaliatory – Residential Tenancies and Rooming Accommodation Act 2008, s 291 – Where tenants alleged that notice to leave was retaliatory pursuant to s 291

Residential Tenancies and Rooming Accommodation Act 2008, ss 70, 291 and 292

APPEARANCES and REPRESENTATION (if any):

APPLICANT: 

RESPONDENT: 

REASONS FOR DECISION

[1]      Mr and Mrs Du Preez are tenants in a home unit at Wakerley.  Linda’s Homes Pty Ltd is the owner’s agent. Around 16 December 2009 Mr and Mrs Du Preez were served with a notice to leave the unit by 16 January 2010. They brought an application in QCAT to set that notice aside. Their application was heard by an adjudicator on 6 January 2010, but dismissed. This is their application for leave to appeal against the adjudicator’s decision.

[2]      Leave to appeal is necessary: Queensland Civil and Administrative Tribunal Act 2009, s 142 (3) (a) (i).

[3] The notice to leave was given ‘without grounds’, under s 291 of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA). Mr and Mrs Du Preez’ application to the adjudicator to set aside the notice was brought under s 292. They also filed an application to stay the adjudicator’s decision, but did not proceed with it.

[4]      The documents before the adjudicator included a General Tenancy Agreement for the premises for a fixed term of six months between Saturday 6 July 2009 and Friday 1 January 2010. The material also included a large number of notices passing between the agent and the tenants in Form 11 under the RTRA, the Notice to Remedy Breach, alleging breaches commencing on 18 July 2009 (for the non payment of a bond) and, in later documents, allegations that Mr and Mrs Du Preez did not properly supervise their children; illegally parked their vehicle; improperly used facilities associated with the unit; smoked in the garage at the unit; allowed their children to swim unaccompanied in a pool; and many like complaints.   

[5] In their application to the adjudicator Mr and Mrs Du Preez asserted that the agent’s notice to leave was ‘retaliatory’ and, therefore, offended s 291 (3) of the RTRA. It is appropriate to set out s 291 and s 292:

291 Notice to leave without ground

(1)        The lessor may give a notice to leave the premises to the tenant without stating a ground for the notice.

(2)        However, the lessor must not give a notice to leave under this section because –

(a)   the tenant has applied, or is proposing to apply, to a tribunal for an order     under this Act: or

(b)   the tenant –

(i)    has complained to a government entity about an act or omission of                    the lessor adversely affecting the tenant: or

(ii) has taken some other action to enforce the tenant’s rights: or

(c )       an order of a tribunal is in force in relation to the lessor and tenant.

(3)        Also, the lessor may not give a notice to leave under this section if the giving                 of the notice constitutes taking retaliatory action against the tenant.

(4)        A notice to leave under this section is called a notice to leave without ground.

292 Application to tribunal about notice to leave without ground

(1)        This section applies if –

(a) the tenant is given a notice to leave without ground; and

(b) the tenant reasonably believes the notice was given in contravention of section 291.

(2)        The tenant may apply to a tribunal for an order to set aside the notice.

(3)        The application must be made within 4 weeks after the notice was given.

(4) On an application under this section, the tribunal may make the order sought if it is satisfied the notice was given in contravention of section 291.

[6]      The adjudicator considered these provisions but concluded that, regardless whether the notice was retaliatory or not, the owner and the owner’s agent could lawfully give it because it did not require the tenant to leave before the expiration of the fixed period set out in the tenancy agreement.

[7]      He also concluded that that there was no ‘explicit evidence of any retaliatory action of the lessor’ and, in the absence of that evidence, that the notice was not, in truth, retaliatory.

[8] Written submissions have been received from Mr Martinsen of the Bayside Tenancy Advice and Advocacy Service, who also appeared with Mr and Mrs Du Preez at the hearing before the adjudicator. His primary contention is that the mere lapse of the term of a fixed term tenancy agreement does not extinguish the operation s 291; and his secondary contention that the notice to leave given here was, in truth, retaliatory.

[9] The learned adjudicator gave oral reasons at the conclusion of the hearing which do appear to reflect a conclusion that a notice to leave without ground could lawfully be given simply because the fixed term of the lease would have expired by the time the period referred to in the notice had expired. If that conclusion was also intended to mean that sections 291 and 292 did not apply, it was incorrect.

1. The tenancy agreement was one to which s 70 applied, because it was a residential tenancy for a fixed term. That section provides that if no notice to leave (among other things) has been given before the end of the fixed term, the agreement continues to apply on the basis the tenant is holding over, under a periodic agreement: s 70(2)(b).

1. The reference to a ‘Notice to leave’ in s 70(1)(b)(i) must be a reference to the various kinds of notices referred to in Chapter 5, Part 1, Division 2 Subdivision 2 of the RTRA. Because the notice here was one of those kinds of notice, but one given ‘without ground’, sections 291 and 292 apply.

1. S 291 provides that a lessor may give a notice to leave without stating a ground, but cannot do so simply because the tenant has brought proceedings under the legislation, complained to a government entity about an act or omission of the landlord, taken some other action to enforce the tenants rights, or because some order has already been made. The notice must also not, of course, be ‘retaliatory’.

1. As the reasons of the adjudicator record, there was no ‘…explicit evidence of any retaliatory action of the lessor in terms of the reason why the notice to leave was given’. There was evidence of a large number of notices from the agent to the tenants to remedy breaches and several notices to leave for failure to remedy them, most in relation to the alleged behaviour of the tenants’ children. There was no evidence, however, of any action on the part of the tenant referable to s 291(2) – ie, no evidence the tenants had applied or were proposing to apply to the tribunal for an order under the RTRA, or of complaints to a government entity or of some other action to ensure the tenants rights.

1. The written submissions provided on the tenants behalf by Mr Martinsen in support of the application for leave to appeal say that his clients: ‘reasonably believe that their residential tenancy agreement is being terminated because of the general disputes which have arisen over the applicant’s children and that such termination is retaliatory in nature…’

1. Although provisions similar to s 291(3) have now appeared on legislation governing the landlord/tenant relationship for some time (Residential Tenancies Act (Qld) 1994, s 165; (Vic) 1997, s 266; (NSW) 1987, s 65), it does not appear that their meaning and effect has received judicial attention. There have been some decisions in the NSW Consumer, Trader and Tenancy Tribunal concerning s 65 which focus upon the ‘motivation’ of the landlord in giving the notice; they reflect the wording of the NSW section, which asks whether the ‘…landlord was wholly or partly motivated to give notice of termination by …’ the kinds of matters set out in (Qld) s 291(2)[1].

   [1] Nuta v Fahey [2002] NSWCTTT 10; Short v Fedderson [2000] NSWRT 239; Harris Tripp P/L v Sinanovic [2005] NSWCTTT 303; Ni & Ngo v Kovska [2005] NSWCTTT 106; Harken & Cavanagh v Moon [2007] NSWCTTT 465; Public Trustee of NSW v Gourley [2008] NSWCTTT 788; Ferguson v Borg [2009] NSWCTTT 673

1. Section 291(3) requires careful consideration of the particular circumstances of each case in which it is raised. If ‘retaliatory’ is construed too broadly, almost any complaint by a tenant to an agent or landlord, or even a less than amicable exchange between them, might qualify in the sense that if the owner or its agent then gives a notice to leave the notice may be categorised as retaliatory. It is improbable the legislature intended that effect.

1. Rather, the section appears to be designed to protect the tenant who has justifiably taken action of the kind set out in s 291(2) (or something similar has occurred, like non-compliance with an unwarranted or unjustified notice to remedy under s 281) and has then been served with a Notice which is apparently responsive to the tenant’s acts but also, in the prevailing circumstances, unreasonable, excessive or vindictive.

1. In each case the decision-maker is required to consider the particular facts and circumstances which arise, and determine whether or not they can fairly be categorised as falling within the section.

1. Here there was a long history of signs of discontent, on the part of the owner’s agent, with the conduct of the tenants in the course of the tenancy agreement. The evidence before the adjudicator, the transcript of the proceedings and his Reasons point to the conclusion that this alleged misconduct may well have been material to the agent’s decision to give a notice to leave. On any view it suggests the agent did not wish the tenant to remain in occupation. That does not necessarily point, however, to the conclusion that the notice was retaliatory in the sense intended by s 291(3).

1. Section 291(2) provides guidance about the nature of the conduct which is likely to qualify as retaliatory under s 291(3). It will usually involve conduct on the part of the tenant to assert rights, to which a subsequent notice to leave has some obvious connection.

1. That is not the case here. There has not been, in short, any assertion of a right by the tenants followed by a retaliatory act. This is simply a case in which the tenants conduct may explain the agent’s determination not to extend the term of the tenancy agreement.

1. The learned adjudicators apparent conclusion that s 291 and 292 did not apply here was erroneous, and an error of law, and for that reason leave to appeal should be granted. However, he properly proceeded to address the question arising under s 291(3) and, for the reasons I have explored, reached the correct decision. The appeal should, then, be refused.