Jim McKeering Real Estate v Buchanan
[2014] QCATA 109
•6 May 2014
| CITATION: | Jim McKeering Real Estate v Buchanan [2014] QCATA 109 |
| PARTIES: | John Walter McKeering t/as Jim McKeering Real Estate (Applicant/Appellant) |
| v | |
| Scott Nathan Buchanan (Respondent) |
| APPLICATION NUMBER: | APL096-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 6 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 10 January 2014 is set aside. 4. John Walter McKeering shall file and serve submissions as to what order he now seeks from the Tribunal by 21 May 2014. 5. Scott Nathan Buchanan may file and serve submissions in reply by 4 June 2014. 6. The application will be determined by a member of the Tribunal by written submissions from the parties, without an oral hearing, not before 4 June 2014. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where notice to leave without grounds – where tenant alleged retaliatory action – where no application to set aside notice – where lessor not at the hearing to give evidence – whether breach of procedural fairness – whether tenant still had right to argue retaliatory action – whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 291, 292, 341(2) 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
Mr Buchanan was a long term tenant of a property managed by Mr McKeering. By September 2013, he was on a periodic tenancy. On 27 September 2013, Mr McKeering and the owner inspected the premises. Later that day, Mr McKeering issued a notice to leave without grounds.
Mr Buchanan did not leave, so Mr McKeering filed an application for termination of Mr Buchanan’s tenancy. An Adjudicator dismissed that claim because, at the hearing, Mr Buchanan gave evidence that the notice to leave was retaliatory.
Mr McKeering wants to appeal the learned Adjudicator’s decision. He says that, if Mr Buchanan truly thought the notice was retaliatory, he should have applied to the tribunal under s 292 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). He says that, if Mr Buchanan had followed that course, he would have been in a position to present evidence from the owner in response to Mr Buchanan’s evidence.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:
There are numerous authorities, in varying language but with unvarying emphasis, that 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.
[1][2005] QCA 294 at [3].
The discretion to terminate a tenancy agreement for failure to leave without ground is very wide. The only guidance from the Residential Tenancies and Rooming Accommodation Act is that the tribunal must be ‘satisfied it is appropriate to make the order’[2].
[2]Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 341(2).
By contrast, the tenant’s rights when faced with retaliatory action are specific. If Mr Buchanan reasonably believed that the notice was given in breach of s 291 of the Residential Tenancies and Rooming Accommodation Act, he had the right to apply to the tribunal for an order to set aside the notice[3]. He had to make that application within four weeks after the notice was given[4].
[3]Ibid s 292(2).
[4]Ibid s 292(3).
The tribunal has previously stated that the Residential Tenancies and Rooming Accommodation Act is proscriptive[5]. If a tenant must make an application to set aside a notice to leave without grounds within four weeks after it was given, by implication, if the tenant does not bring such an application, he loses the right to argue retaliatory behaviour.
[5]Lowe v Aspley [2010] QCATA 59 at [10].
The rationale for limiting the right to challenge the notice is obvious, as illustrated by this dispute. If Mr Buchanan had filed an application under s 292 within time, Mr McKeering would have received notice of it and arranged for his lessor to give evidence. Further, the application could have been heard and determined before the notice period expired.
Mr Buchanan did not bring an application, either in time or at all. He therefore lost the right to argue that the notice was retaliatory.
If the learned Adjudicator thought that the evidence was relevant to the exercise of his discretion to terminate the tenancy agreement, he should have been aware that Mr McKeering had no notice of the point and, therefore, was not in a position to give meaningful evidence about that issue. The principles of natural justice required that the learned Adjudicator adjourn the hearing to enable Mr McKeering to provide that evidence.
In summary, the learned Adjudicator should have either refused to accept Mr Buchanan’s evidence or, if it was a matter that was relevant to the exercise of his discretion, adjourned the hearing so that Mr McKeering could present evidence from the lessor.
Leave to appeal should be granted and the appeal allowed. The decision of 10 January 2014 should be set aside.
The appeals tribunal can substitute its own decision or return the matter to the original tribunal for rehearing. Many months have passed since the learned Adjudicator’s decision. It may be that a termination order is no longer necessary. I will therefore direct that Mr McKeering file and serve submissions as to what order he now seeks and give Mr Buchanan an opportunity to respond. I will make further orders on receipt of those submissions.
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