Kelly v Healey & Shearer
[2023] QCATA 146
•23 October 2023
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Kelly v Healey & Shearer [2023] QCATA 146
PARTIES:
PRUDENCE KELLY (applicant/appellant)
v
OWEN HEALEY
(FIRST RESPONDENT)AND
JESSICA SHEARER
(second respondent)
APPLICATION NO/S:
APL190-23
ORIGINATING APPLICATION NO/S:
MCDT33/23 (Beaudesert)
MATTER TYPE:
Appeals
DECISION MADE:
23 October 2023
REASONS DELIVERED ON:
6 November 2023
HEARD AT:
Brisbane
DECISION OF:
Member Lember
ORDERS:
IT IS THE DECISION OF THE APPEAL TRIBNAL THAT:
1. The application for miscellaneous matters filed 28 September 2023 by the applicant is refused.
2. The application for leave to appeal or appeal filed 23 June 2023 is dismissed pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where application for a termination order based on repeated breaches – where tribunal refused to make the order because the repeated breaches were not remedied – where grounds of appeal assert error of law – where application for leave to appeal or appeal lacks substance as it is based upon the applicant’s misunderstanding of sections 293 and 299 of the Residential Tenancies and Rooming Accomodation Act 2008 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 47, s 143
Residential Tenancies and Rooming Accomodation Act 2008 (Qld) s 184D, s 184E, s 281, s 293, s 299, s 325, s 326, schedule 1
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
What is this application about?
Ms Kelly sought to evict her tenants, Mr Healey and Ms Shearer, for having up to three dogs at the property they rented from her, including at least one living inside the home, where the tenancy agreement only permitted the tenants to have one outside dog.
Several Form 11 Notices to remedy breach were issued to the tenants alleging breach of the tenancy agreement for exceeding the number of approved pets residing at the tenancy, including notices dated 7 February 2023, 6 March 2023, 21 March 2023, and 9 May 2023.
By an application for a minor civil dispute – residential tenancy dispute, filed on 12 May 2023 Ms Kelly sought a termination order and warrant pursuant to section 299 based upon the tenants’ repeated breaches.
Although Mr Healey and Ms Shearer denied breaching their agreement, saying that any excess animals seen at the property were only temporarily visiting:
(a)photographs attached to the application clearly establish that more than one dog was residing at the tenancy, and
(b)they filed a counter-application seeking approval to have three dogs at the home.
By a decision made 29 May 2023 (MCDT233/23), the tribunal below dismissed both Ms Kelly’s application and her tenants’ counter-application (the decision).
Ms Kelly seeks leave to appeal[1] the decision on the grounds that:
(a)A Form 12 was not required to be issued to the tenants prior to the urgent application being made for repeated breaches.
(b)The adjudicator said the tenancy would have been terminated on the spot if a Form 12 had been issued.
(c)A Form 12 states that it is not to be used for repeated breaches.
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 143(3) (‘QCAT Act’); Application for leave to appeal or appeal filed 23 June 2023.
Upon reviewing the application, the MCDT file and the transcript of proceedings, it was apparent to the Appeal Tribunal that Ms Kelly has, with respect, confused two separate and distinct bases for applying to the tribunal for a termination order, namely:
(a)A failure by tenants to leave following receipt of a Form 12 notice to leave (which can in turn be based upon a Form 11 notice to remedy breach that has not been remedied within the time allowed) – section 293; and
(b)Repeated breaches by a tenant which are remedied within the time allowed (which in turn prevents a lessor form issuing a Form 12 Notice to leave for failing to remedy the breach) – section 299.
By directions made 25 August 2023, on its own initiative, the Appeal Tribunal invited submissions from the parties as follows:
1. The Appeal Tribunal intends to consider whether to dismiss the application for leave to appeal or appeal pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) on the basis it appears to be futile/lacking in substance because:
(a) The appeal grounds are stated as follows:
1.A Form 12 was not required to be issued to the tenants prior to the urgent application being made for repeat breaches;
2.The member said the tenancy would have been terminated on the spot if a Form 12 had been issued.
3.A Form 12 states that it is not to be used for repeated breaches.
(b) The submissions as to the error are similar: that a Form 12 was not necessary to terminate for repeat breaches and that the tenants never complied with their obligation to reduce the number of dogs on the property to one.
(c) The grounds of the application to terminate the tenancy were stated as being for “repeat breaches” pursuant to section 299 of the Residential Tenancies and Rooming Accomodation Act 2008 (Qld) (RTRAA).
(d) ‘Repeat breaches’ does not mean ‘many breaches’. Instead, it means ‘repeated remedied breaches’ that is, two remedied breaches which are the subject of a notice to remedy breach followed by a third breach of the particular provision, all happening within 12 months. See section 299(1)(c):
(c) the tenant remedies each breach within the relevant allowed remedy period;…
(e) The intention of this provision is to stop tenants practising brinkmanship. This is because a lessor cannot issue a Form 12 if the Form 11 has been complied with. But if this happens twice and then there is another breach (all within a space of 12 months) the lessor can apply to terminate. There is no need for a Form 12 in that case.
(f) To be clear, section 299 is only available if breaches the subject of a Form 11 Notice to Remedy breach are remedied within the time specified in the notice.
(g) Section 299 is not available for termination applications relying on unremedied breaches.
(h) For unremedied breaches, in the case of failure to pay rent, where a tenant is in breach and the lessor has properly issued a Form 11 and Form 12, the lessor is entitled to a termination order subject to the Tribunal’s discretion.
(i) According to the partial transcript filed by the applicant and her submissions, the tenants did not remedy the breach (as there were three dogs and the tenants only removed one, leaving them in breach of the obligation to only have one dog) – see lines 40-48 on page 1-2. On the following page 1-3 this was clearly explained to the applicant.
(j) This means that on the applicant’s own evidence, the adjudicator correctly applied section 299, because there were no remedied breaches to trigger relief under that section. A Form 12 was needed if the applicant relied on unremedied breaches to terminate and no Form 12 issued.
2. (a) Both parties must file in the Tribunal one (1) copy and give to the other party one (1) copy of written submissions addressing whether the application for leave to appeal or appeal should be dismissed pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and if not, why not, by:
4:00pm on 22 September 2023.
(b) Unless otherwise ordered, the Appeal Tribunal will decide whether to dismiss the application for leave to appeal or appeal on the papers, based on written submissions from both parties and without an oral hearing, not before:
4:00pm on 22 September 2023.
Each party filed submissions in reply to the directions:
(a)The tenants tendered Council regulations for the keeping of animals and raised concerns regarding a dispute between the parties regarding water and electricity costs.
(b)Ms Kelly insisted that the tenants had committed repeat breaches and alleged subsequent breaches in the non-payment of water invoices issued to the tenants.
Each submission purported to introduce new evidence not relevant to the issue at hand.
Neither party requested an oral hearing.
Application for leave to appeal
In determining whether to grant leave, the Appeal Tribunal must be satisfied that:
(a)there is a reasonably arguable case of error in the primary decision;[2]
(b)there is a reasonable prospect that the appellant will obtain substantive relief;[3]
(c)leave is needed to correct a substantial injustice caused by some error;[4] or
(d)there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[5]
[2]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 (‘QUYD’).
[3]Cachia v Grech [2009] NSWCA 232, 2.
[4]QUYD.
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.
As to the first question of error, on Ms Kelly’s own evidence, respectfully, there is none.
Where a tenant is in breach of a tenancy agreement
(a)A notice to remedy breach (Form 11) must be given to a tenant in the approved form, nominating the date by which the breach must be remedied.[6]
[6]RTRAA, section 325.
Where the tenant does not remedy the breach within the time permitted
(b)If a tenant does not remedy the breach within the time permitted, a notice to leave (Form 12) for unremedied breach may be given in the approved form, nominating a handover day.[7]
[7]RTRAA, sections 281 and 326.
(c)The lessor may, within 14 days of the handover day, apply to a tribunal for a termination order because:
(i) the lessor gave a notice to leave the premises to the tenant; and
(ii) the tenant failed to hand over vacant possession of the premises to the lessor on the handover day.[8]
[8]RTRAA, section 293.
Where the tenant remedies the breach wtihin the time permitted
(d)Where the tenant remedies the breach within the time permitted, a notice to leave based upon an unremedied breach cannot be given, and, therefore, an application for a termination order based upon a tenant’s failure to leave cannot be brought.
(e)However section 299 of the RTRAA provides that (emphasis added):
299 Application by lessor for termination for repeated breaches by tenant
(1)This section applies if—
a.the lessor gives 2 notices to remedy breach to the tenant for breaches of a particular provision in relation to the agreement; and
b.each notice relates to a separate breach of the particular provision; and
c.the tenant remedies each breach within the relevant allowed remedy period; and
d.the tenant commits a further breach of the particular provision after the breaches mentioned in paragraph (a); and
e.all breaches happen within the period prescribed under a regulation for this section.
(2)The lessor may apply to a tribunal for a termination order.
(3)An application under this section is called an application made because of repeated breaches.
(f)The apparent intention of section 299 is to prevent tenants practising brinkmanship. This is because a lessor cannot issue a Form 12 if the Form 11 has been complied with. But if this happens twice and then there is another breach (all within a space of twelve months) the lessor can apply to terminate. It is correct that there is no need for a Form 12 in that case.
(g)To be clear, section 299 is only available if breaches the subject of a Form 11 Notice to Remedy breach are remedied within the time specified in the notice.
(h)Section 299 is not available for termination applications relying on unremedied breaches.
The evidence before the tribunal
According to the transcript of the 29 May 2023 hearing:
(a)The learned adjudicator spent some time with Ms Kelly when the proceeding opened clarifying with respect to each notice to remedy breach the animals it referred to and wheher or not the breach was remedied.
(b)Ms Kelly confirmed that the breaches set out in the Form 11 notices to remedy breach were never remedied.[9] She said that the tenants had three dogs on the properly and only ever removed one, when only one was permitted.[10]
(c)Mr Healey confirmed that there were at least two dogs at the propety at all relevant times, sometimes three.[11]
[9]Transcript, p 1-3 at line 34
[10]Transcript, p 1-4 at lines 10-15.
[11]Transcript, p 1-5 at lines 40-45, p 1-6 at lines 10-20.
This means that on both the applicant and the respondents’ evidence, the learned adjudicator correctly dismissed the section 299 application, because there were no remedied breaches to trigger relief under that section.
Further, he correctly informed Ms Kelly that a Form 12 was needed if she sought relief in relation to unremedied breaches. It was not disputed that no Form 12 had issued pertianing to unremedied breaches. In fact, Ms Kelly gave evidence that she had directed her managing agent to issue a Form 12 but they had refused to. This means that a termination application under section 293 could not proceed.
Put simply, there are no grounds raised by Ms Kelly upon which the application for leave to appeal or appeal might succeed on its merits and her application for a termination order relying upon section 299 was properly dismissed.
Further, there would be no basis, although it has not been alleged, that Ms Kelly ws not adequately guided by the tribunal to understand the process in the hearing. Although sitting in a busy and exacting jurisdiction in which urgent tenancy hearings are only allocated fifteen minutes, the learned adjudicator spent over forty minutes with the parties hearing the matter and giving his decision with reasons.
Acknowledging that the ‘repeated breaches’ provisions of the RTRAA were complex, the learned adjudicator clearly explained:
(a)that the fundamental question upon which the success or failure of the application depends is whether the breaches are remedied in period that the Form 11 allowed;
(b)required procedure and the meaning of the relevant provisions of the RTRAA including that the term “repeated breaches” meant repeated remedied breaches;
(c)to Ms Kelly that she could apply to terminate a lease if she issued a Form 12 when an unremedied Form 11 expires; and
(d)that termination based on repeated remedied breaches is a different category to termination of the lease for failure to leave for unremedied breaches.[12]
[12]Transcript, page 1-2 to 1-4.
The tenants’ counter-application
In dismissing the tenants’ counter-application (to approve two additional dogs), the learned adjudicator noted that a request for approval was made to Ms Kelly via her then appointed managing agent on 6 March 2023. It was agreed by Ms Kelly and by Mr Healey that a response to that request was given within fourteen days of the request.
Section 184E of the RTRAA limits the grounds for a lessor to refuse a tenant’s request for pet approval. If the grounds cited by a lessor for refusing do not fall within section 184E, then section 184D(4) deems the request to have been approved.
Ms Kelly refused the keeping of the extra dogs based on insufficient fencing, but concessions were made in the hearing that fencing was sufficient as the tenants had installed a gate and, rather, Ms Kelly’s objection was because the dogs were “ruining the garden, they’re digging everything up, they’re chewing everything”.
As this is not a section 184E refusal ground the approval was deemed given and the counter-application was dismissed accordingly.
No error in this part of the decision was raised an appeal ground, but, for the sake of completeness, I note that there is no apparent error in the learned adjudicator’s application of section 184E.
Application for miscellaneous matters
By an application for miscellaneous matters filed 28 September 2023 Ms Kelly asked the Appeal Tribunal to ignore the tenants’ submissions pursuant to the Appeal Tribunal directions made 17 July 2023 because they were filed late and because she disputed the correctness and accuracy of the information tendered.
Because the application for leave to appeal or appeal had been dismissed without recourse to that information, the application for miscellaneous matters was also dismissed.
Decision
Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) permits the tribunal to dismiss a proceeding if the tribunal considers it lacking in substance.
In circumstances where:
(a)there is no reasonably arguable case of error in the primary decision;[13]
(b)there is no reasonable prospect that Ms Kelly will obtain substantive relief;[14] and
(c)there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage,[15]
the application for leave to appeal is futile.
[13]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 (‘QUYD’).
[14]Cachia v Grech [2009] NSWCA 232, 2.
[15]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.
There is no prospect of the application for leave to appeal progressing to an outcome where Ms Kelly will obtain substantive relief. If the application was to remain on foot the tribunal would not be meeting its mandate to conduct matters fairly, quickly, and economically, nor to use its resources appropriately for the public as a whole.[16]
[16]Queensland Civil and Administrative Tribunal Act 2009 (Qld), section 4.
I am satisfied for those reasons that the application for leave to appeal or appeal should be dismissed pursuant to section 47 of the QCAT Act.
I note the guidance the learned adjudicator gave to Ms Kelly regarding the different grounds for seeking termination orders and his urging that she seek advice with respect to her ongoing concerns regarding the tenancy. I would reiterate that each party should seek advice about, and consider engaging in alternate dispute resolution for, the ongoing tenancy issues in dispute.
0