Jean v Bill Hooper Real Estate
[2014] QCATA 200
•29 July 2014
| CITATION: | Jean & Anor v Bill Hooper Real Estate [2014] QCATA 200 |
| PARTIES: | Wayne Jean Ana Trajkovska (Applicants/Appellants) |
| v | |
| Bill Hooper Real Estate (Respondent) |
| APPLICATION NUMBER: | APL190-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 29 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where both tenant and lessor filed application to terminate tenancy – where tribunal terminated tenancy – whether tribunal had power to terminate tenancy – whether tribunal erred in failing to consider matters relating to conduct of tenancy – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100 Residential Tenancy and Rooming Accommodation Act 2008 (Qld) ss 111, 298, 299, 328, 329, 247, 349, 416, 420, 426 Pickering v McArthur [2005] QCA 294 |
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
The Residential Tenancy and Rooming Accommodation Act 2008 (Qld) (‘RTRA Act’) is a difficult piece of legislation. The Act provides many pathways to the tribunal and each pathway has a specific set of rules. In this dispute, both parties chose a difficult, seldom travelled path to the tribunal and neither party fully complied with the procedural requirements. The learned Adjudicator is not to be criticised for directing the parties towards more familiar dispute resolution pathways.
Mr Jean and Ms Trajkovska were tenants in a house managed by Bill Hooper Real Estate. On 18 March 2014, they filed an application for termination of the tenancy under s 298 of the RTRA Act. The basis of their application was that Bill Hooper Real Estate was harassing them and issuing invalid and inaccurate breach notices. They also submitted that the house did not comply with necessary building and safety codes.
On 17 April 2014, Bill Hooper Real Estate filed an application for termination under s 299 of the RTRA Act. On 29 April 2014, the tribunal terminated the tenancy on the grounds of repeated breaches.
Mr Jean and Ms Trajkovska want to appeal that decision. They say that the notices to leave were invalid. They say they were not given a fair hearing because none of their concerns was heard. They say that the officer appearing for Bill Hooper perjured herself without consequences. They say the learned Adjudicator did not look at their evidence; in particular, they say that the learned Adjudicator did not look at their photos.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1] QCAT Act s 142(3)(a)(i).
[2] Pickering v McArthur [2005] QCA 294 at [3] per Keane JA.
Although Mr Jean and Ms Trajkovska may have had legitimate concerns with the state of the tenancy, their application had difficulties. Section 298 of the RTRA Act allows for an application for termination for incompatibility for short tenancies in moveable dwellings. Therefore, the section did not apply to the tenants’ particular circumstances. They could have applied to terminate the tenancy for an unremedied breach under s 309, as they had issued the necessary Forms 11 and 12 but they did not.
At the start of the hearing, the learned Adjudicator asked Mr Jean when he wanted to move out[3]. Only then did Mr Jean tell the learned Adjudicator that, despite the terms of the application, they didn’t really want to move out[4]. Instead, Mr Jean and Ms Trajkovska wanted compensation[5] and they wanted the tribunal to decide ‘if the breaches were lawful given the minimum requirement is 14 days’[6]. The learned Adjudicator rightly turned his attention to Bill Hooper’s application for termination, as that was the application the subject of Mr Jean’s inquiry.
[3]Transcript page 1-3, line 3.
[4]Transcript page 1-3, line 10.
[5]Transcript page 1-3, lines 27 – 28.
[6]Transcript page 1-3, lines 46 – 47.
Section 328 of the RTRA Act provides that the allowed remedy period for a notice to remedy breach must no end earlier than 7 days after the notice is given. Both of the notices Bill Hooper issued complied with that requirement.
Section 329(2)(b) of the RTRA Act provides that a notice to leave for a breach that does not relate to non-payment of rent, must nominate a handover date not earlier than 14 days after the date the notice is given. Bill Hooper admitted that the notices to leave did not comply and it did not rely on them.
That may have been a mistake by the agency. Section 349(1) of the RTRA Act provides that, on the lessor’s application to terminate for failure to leave, the tribunal may terminate a tenancy if it is appropriate in all the circumstances, even if the notice to leave is defective. It would be an appropriate exercise of the tribunal’s to terminate a tenancy in circumstances where the tenants are also seeking a termination order.
Section 299 of the RTRA Act allows a lessor to terminate if:
§ The lessor has given 2 notices to remedy breach;
§ Each notice relates to a separate breach of a particular provision;
§ The tenant remedies each breach within the allowed remedy period;
§ The tenant commits a further breach of the particular provision;
§ All breaches happen within 12 months.[7]
[7]Residential Tenancy and Rooming Accommodation Regulation 2009 (Qld) s 25.
Clause 14 of the Special Terms required Mr Jean and Ms Trajkovska to maintain the lawns, gardens and nature strip in a neat and tidy manner. It did not matter that the trees were declared pests. It did not matter that the trees were planted some time ago. By accepting the tenancy agreement, Mr Jean and Ms Trajkovska assumed responsibility for keeping the trees neat. Bill Hooper accepted that Mr Jean and Ms Trajkovska were not required to trim trees if that work could not be done easily and from ground level[8]. It does not matter that the nature strip is Council land and that the Council has now assumed responsibility for mowing it. When Mr Jean and Ms Trajkovska entered into the tenancy agreement, the owner was responsible for mowing the nature strip and, by the tenancy agreement, they accepted that responsibility.
[8]Transcript page 1-11, lines 30 – 33.
The learned Adjudicator considered the material filed by Bill Hooper to show that the notices to remedy breach were validly issued. Although Mr Jean told the tribunal that the ‘rubbish’ was not rubbish and was stored neatly[9], the learned Adjudicator was satisfied that the notices were valid. The evidence can support that finding and there is nothing in the transcript to persuade me that the learned Adjudicator should have taken a different view of the facts.
[9]Transcript page 1-7, lines 23 – 32.
Each notice related to separate breaches of the same requirement. The evidence clearly shows[10] that Mr Jean and Ms Trajkovska refused to the remedy the breaches, contrary to the requirements of s 299(1)(c). It might be said that Bill Hooper’s application under s 299 failed at this point.
[10]Transcript page 1-11, lines 19 – 24.
However, section 347(1) of the RTRA Act provides that the tribunal need only consider whether the grounds of the application have been established and whether the respondent committed the breach. The learned Adjudicator was satisfied these two elements were established. The learned Adjudicator was, therefore, entitled to terminate the tenancy for repeated breaches.
In deciding whether to terminate, the learned Adjudicator was obliged to consider: the seriousness of the breach, the time the tenancy had been in existence, the period in which the breaches were committed, the remaining period of the tenancy, and anything else which he considered relevant[11]. The transcript does not demonstrate that the learned Adjudicator turned his mind to these matters. The absence of reasons is normally a ground for leave to appeal being granted. However, given the obvious animosity between the parties, and that both sides initially wanted to terminate the tenancy, I can find no reason to criticise the learned Adjudicator’s exercise of his discretion.
[11]RTRA Act s 347(2).
The learned Adjudicator did not make any orders about the balance of Mr Jean and Ms Trajkovska’s application. They asked the tribunal to stop Bill Hooper harassing them. They asked the tribunal to stop Bill Hooper issuing invalid and inaccurate breaches and notices to leave. They asked the tribunal to order Bill Hooper pay for their relocation costs and to order the lessor comply with building regulations. The learned Adjudicator erred in failing to address these issues.
Mr Jean and Ms Trajkovska were entitled to quiet enjoyment of the tenancy. There is some evidence that people attended the tenancy without notice. That is a breach of a tenant’s quiet enjoyment. If the tenancy had not been terminated, the learned Adjudicator had the power[12] to restrain any further breaches of quiet enjoyment.
[12]RTRA Act s 420(1)(a).
Similarly, if the tenancy had continued, the learned Adjudicator could, perhaps, have ordered that Bill Hooper cease issuing inaccurate breach notices and notices to leave. It is, of course, difficult to restrain a lessor from exercising rights that it considers are legitimate. If there is a dispute about the validity of a notice, the preferable course is to apply to the tribunal under s 426 for an order.
The tribunal can order compensation for a breach of a tenancy agreement and the tribunal might order a lessor to pay a tenant’s removal costs if the tenant’s move was caused by the lessor’s breach. The learned Adjudicator terminated the tenancy because of breaches by Mr Jean and Ms Trajkovska. Therefore, there can be no basis for a claim for removal costs.
It appears that Bill Hooper had addressed Mr Jean’s complaint that the tenancy did not have smoke detectors. It is not clear whether the lessor has addressed other issues regarding the windows, TV antenna or the hot water system.
There is evidence of a non-compliant handrail to the front entry. This was not the subject of the tenants’ notice to remedy breach dated 3 September 2013. It was not the subject of the tenants’ maintenance request form dated 7 April 2014. Although Mr Jean and Ms Trajkovska lodged a dispute resolution request with the Residential Tenancies Authority, I have no evidence that this issue was the subject of that dispute resolution request as required by s 416(1) of the RTRA Act. In the absence of that evidence, the tribunal cannot make an order about a breach of the tenancy agreement. I do agree, however, that the current railing system is inadequate and presents a danger for future tenants. Although the tribunal has no power to order it, the lessor should address that issue.
The tribunal will not compensate a party to a residential tenancy dispute for legal fees. Section 100 of the QCAT Act states that, unless the interests of justice require it, parties should bear their own costs of a proceeding. Section 83 of the QCAT Rules limits the recovery of a party’s costs to the amount of the filing fee. For that reason, the tribunal does not make orders for costs of photocopying or wages lost by taking time off work to pursue legal rights.
Mr Jean and Ms Trajkovska make a number of complaints about Bill Hooper’s conduct during the tenancy. They are issues that might give rise to a claim for compensation. Mr Jean and Ms Trajkovska applied for reimbursement of their bond. That is not normally the subject of an urgent application to the tribunal and it is, therefore, understandable that the learned Adjudicator did not address it. In any event, the bond is intended to be available for the financial protection of the lessor against the tenant breaching the agreement[13]. It would be contrary to that intention to allow disbursement of the bond before Mr Jean and Ms Trajkovska vacated the tenancy.
[13]RTRA Act s 111(1)(b).
Although the learned Adjudicator was in error, caused principally by the complex and incorrect applications filed by both parties, his decision to terminate the tenancy was correct. There is no reasonable prospect of substantive relief on appeal. Leave to appeal should be refused.
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