Hough v Department of Housing and Public Works

[2012] QCAT 579

CITATION: Hough v Department of Housing and Public Works [2012] QCAT 579

PARTIES:	Helen Maree Hough (Applicant)
v
Department of Housing and Public Works (Respondent)

APPLICATION NUMBER: MCDT1096-12

MATTER TYPE: Residential tenancy matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: J Bertelsen, Adjudicator

DELIVERED ON: 29 August 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The Tribunal has jurisdiction to hear the application.

CATCHWORDS:

MINOR CIVIL DISPUTE – residential tenancy matter – application for compensation – whether Tribunal has jurisdiction when claim over $25,000 – whether tribunal a court

Queensland Civil and Administrative Tribunal Act 2009, s 12(4)(f), 13(2)(b), 13(3)-(4), 164
Residential Tenancies and Rooming Accommodation Act 2008, s 516

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 (QCAT Act).

REASONS FOR DECISION

Tribunal’s jurisdiction

1. In this application the applicant primarily seeks compensation for damage to her goods and chattels as well as consequential expenses. 

2. The applicant was a tenant of the respondent’s premises, Unit 9, 103 Dickenson Street, Carina pursuant to tenancy agreement dated 15 June 2010.  The applicant complained of mould within the premises.  That lead the applicant she says to vacate the premises on or about 2 April 2012.  She asserts that goods and chattels have been damaged by mould.  The quantum of loss pursued by the applicant is some $64,000.

3. When the application came before the Tribunal on 27 July 2012 the respondent raised the issue of jurisdiction asserting that the applicant’s claim be limited to $25,000 or otherwise be transferred to the Magistrates Court being the proper jurisdiction to adjudicate a tenancy dispute involving some $64,000.  Whilst the order to be made on the day was discussed and generally agreed upon particularly in terms of prospective timeframes it was subject to the issue of jurisdiction being determined firstly.  The decision on jurisdiction was reserved.

4. A number of submissions with respect to jurisdiction were made on the day.  No further submissions were sought on the day.  However subsequently the applicant filed in the Tribunal its submissions on jurisdiction.  Those submissions were served on the respondent which objected on the basis that argument on jurisdiction was concluded on 27 July 2012 and that no directions were made by the Tribunal for the filing of further submissions by either party.  The respondent submitted that in the alternative that if the Tribunal was going to consider the applicant’s written submissions then the respondent ought to be given an opportunity to file and serve its own written submissions in response.  Given that the written submissions of the applicant had effectively come to the attention of the Tribunal it then called for written submissions from the respondent with a request being made that such be provided promptly.  Such written submissions have now been received from the respondent. 

Jurisdiction in this instance

1. Section 516 of the Residential Tenancies and Rooming Accommodation Act 2008 (RTA legislation) provides that where an application such as the current application is made and the quantum of the claim exceeds the prescribed amount of $25,000 then “a reference to a Tribunal is taken to be a reference to a Court with jurisdiction for the application amount”. 

2. Section 12(4)(f) of the QCAT Act makes it clear that the Tribunal has jurisdiction in respect of tenancy matters of the nature of the subject claim. Section 13(2)(b) of the QCAT Act makes it clear that the Tribunal can make a final decision with respect to a claim of the nature of the present application. Section 13(3) limits the monetary relief to $25,000. However subsection (4) makes it clear that the limitation on a grant of relief does not apply to a tenancy matter, that is to say relief in excess of $25,000 can be granted by the Tribunal in respect of a tenancy matter where the quantum of the claim exceeds $25,000. The QCAT Act does not place any ceiling on the quantum of any such claim.

3. It seems clear that the purport of section 13 of the QCAT Act is to empower the Tribunal to deal with tenancy issues without imposing a limit on the quantum of any such tenancy claim.

4. Section 516 of the RTA legislation talks of “a reference to a Tribunal is taken to be a reference to a Court with jurisdiction for the application amount.” This section does not talk about for instance “a Court of competent jurisdiction”. The Tribunal is a court of record (section 164 QCAT Act).

5. Section 13 QCAT Act is specific in its exception that is, the limitation of the prescribed amount of $25,000 does not apply to a tenancy matter.

6. There is nothing inconsistent, appropo section 516 of the RTA legislation therefore, in the application of section 13 QCAT Act to the present dispute. Any other conclusion would render section 13(4)(b) purposeless. The wording of section 13 QCAT Act and the exceptions contained within section 13 ought properly be construed as positively and purposefully vesting in the Tribunal jurisdiction to determine tenancy matters irrespective of quantum. Nor can it be said the purpose of section 516 RTA legislation was to divert any tenancy claim over $25,000 away from the Tribunal. That historically was not the case under the former Small Claims legislation. There is nothing in the QCAT Act that serves to diminish jurisdiction in tenancy matters rather the wording of section 13, if anything, confirms the scope of its jurisdiction.

7. Whilst the Tribunal appears not to be given exclusive jurisdiction, it is, when one reads sections 516 RTA legislation with sections 11, 12 and 13 of the QCAT Act the preferred jurisdiction.

8. Based on the above the Tribunal is of the opinion that it has jurisdiction to hear the application.