Joint Products Australia Pty Ltd v Jot Investment Holdings Pty Ltd
[2014] QCATA 87
•14 April 2014
| CITATION: | Joint Products Australia Pty Ltd v Jot Investment Holdings Pty Ltd [2014] QCATA 87 |
| PARTIES: | Joint Products Australia Pty Ltd (Appellant) |
| v | |
| Jot Investment Holdings Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL515-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Forbes, Member |
| DELIVERED ON: | 14 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The order made on 26 November 2013 is set aside. 4. The appellant may, if it so desires, apply, on 7 days’ notice, in writing to the Tribunal, and the respondent for the original application to be relisted for hearing and determination, according to law. |
| CATCHWORDS: | APPEALS – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where notice to remedy submitted from lessee – where lessor failed comply – where lessee sought termination order – whether termination order may be sought without notice of intention to leave – whether dismissal of application on that basis an error of law – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32 Adams v Scowcroft [2012] QCATA 25 Electricity Commission of NSW v Yates (1993) 30 NSWLR 351 Pokarier v Rental Express [2010] QCATA 16 |
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
The appellant company (“Joint Products”) leases (or leased) residential premises at Marina Beach Parade, Mackay Harbour, from the respondent (“Jot”).
By Notice of Dispute, filed on 1 November 2013 (“the original application”) Joint Products sought an order terminating that lease for Jot’s failure to comply with notices to remedy[1] served on 27 August 2013 and 21 October 2013 respectively. The first notice complained of an inoperable garage door, a defect which compelled Joint Products to park not one, but two Jaguar motor cars in the street, causing them to be exposed to dust and saline breezes.
[1]Residential Tenancies and Rooming Accommodation Act 2008 (Qld), (RTRAA), ss 301, 309, 325, 328.
The original application was heard, and dismissed, on 26 November 2013. Joint Products now seeks leave to appeal against that decision, on the basis of section 335 of the RTRAA.[2]
[2]Application for leave to appeal, filed 27 November 2013.
The question may now be academic; as the copy lease tendered by the appellant is expressed to run from 15 March 2013 to 14 March 2014. The application for leave was referred to me just one day ago.
However, the Tribunal’s reason for dismissing the original application can be shortly stated: In the Adjudicator’s opinion, the application was incompetent because the appellant did not serve a notice of intention to leave.[3]
[3]RTRAA s 327; Transcript of hearing 26 November 2013 page 4, line 18, page 5 line 2, page 8, lines 2, 11-13.
In the course of the hearing, the Adjudicator referred to sections 302, 307 and 331 of the RTRAA. He also referred to the decision of Wilson P in Big4 Brisbane Northside Caravan Village v Schliebs[4] as authority for the general proposition that the RTRAA is “prescriptive in its requirements about issuing notices, and commencing proceedings”.[5]
[4][2012] QCAT 277; see also Adams v Scowcroft [2012] QCATA 25.
[5][2012] QCAT 277 at [23].
Unfortunately, in the absence of professional assistance, and in the pressure-cooker conditions under which Adjudicators so often work, the Tribunal was not referred to section 335 of the Act, or to the presidential decision in Pokarier v Rental Express.[6]
[6][2010] QCATA 16.
Materially, section 335 sub-section (2) provides:
An application may be made to a tribunal for a termination order by the tenant, without giving a notice of intention to leave the premises to the lessor if the application is made because of ... the matter mentioned in section 309 [i.e. failure of lessor to remedy breach].[7]
[7]RTRAA s 335(2)(a).
In Pokarier (above) Wilson P observed:
[15] … [A] tenant who believe[s] “on reasonable grounds” that the lessor [has] breached a term of the agreement and [has] not remedied the breach can give a Notice to Remedy: s 301. If the lessor fails to remedy the breach ... the tenant may apply for a termination order.
...
[17] Such an application may be brought under s 335(1) without giving a notice [of intention] to leave.[8]
[8][2010] QCATA 16 at [15], [17].
It follows that, in dismissing the original application, the Tribunal erred in law. It is true that the section 335 point was not raised at the trial, but the appellant was not legally represented, and even in the courts, a “fatal objection” – that is, a point of law that could not have been cured by evidence at the trial – may be argued on appeal.[9] The present point is of that kind.
[9]Electricity Commission of NSW v Yates (1993) 30 NSWLR 351; Robinson v Campbell (No 2) (1992) 30 NSWLR 503 at 508; Corliss v Gibbings-Johns [2010] QCA 233 at [48].
For the foregoing reasons, leave must be granted, and the appeal allowed. However, for the reason stated in paragraph [4] above, the termination order sought by the appellant may no longer be necessary. But in case that is not so, I shall order that the appellant be at liberty to apply, on 7 days’ notice in writing to the Tribunal, and to the respondent, for the matter to be relisted for hearing and determination, according to law.
ORDERS:
1. Leave to appeal is granted.
2. The appeal is allowed.
3. The order made herein on 26 November 2013 is set aside.
4. The appellant may, if it so desires, apply on 7 days’ notice, in writing to the Tribunal and the respondent, for the original application to be relisted for hearing and determination, according to law.
0
7
0