King v TIC Realty
[2011] QCATA 56
•14 March 2011
| CITATION: | King v TIC Realty [2011] QCATA 56 |
| PARTIES: | Mr Ashley King (Applicant/Appellant) |
| v | |
| TIC Realty (Respondent) |
APPLICATION NUMBER: APL306-10 & APL307-10
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member |
DELIVERED ON: 14 March 2011
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal is refused.
| CATCHWORDS: | Minor Civil Dispute – Notice to Leave where retaliatory conduct alleged – insufficient reasons but not decisive of application – failure to obtain lessor’s consent to sublet – failure to remedy breach Queensland Civil and Administrative Tribunal Act 2009, s 142(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
These two appeals relate to Mr King’s occupation of rented premises at 2/68 Longland Street, East Brisbane. APL306-10 relates to Mr King’s application to set aside a Notice to Leave without Grounds which was dismissed on 18 October 2010. APL307-10 relates to an Order of the Tribunal made on 8 November terminating Mr King’s tenancy from midnight on 15 November 2010.
Mr King has sought leave to appeal the Tribunal’s decisions. Leave is necessary[1] in both cases. I propose to deal with each application for leave to appeal sequentially.
[1] QCAT Act section 142(3).
In Mr King’s originating application, the reason given to have the Notice to Leave without Grounds (“Notice”) set aside is that Mr King alleges that the Notice was “retaliatory” within the meaning of section 291 of the Residential Tenancies and Rooming Accommodation Act 2008 (“the Act”). The basis of this allegation is that at the time the notice was issued on 6 September 2010 Mr King had previously resisted an application by the respondent to terminate the tenancy[2], had filed a complaint with the Residential Tenancies Authority on 10 September 2009[3] and was handed the Notice in the QCAT hearing room on the day when the previous hearing concluded, being 6 September 2010.
[2] In minor civil dispute proceeding 2179/10.
[3] Letter from Retail Tenancies Authority 27 September 2010.
Retaliatory conduct is provided for in the Act and section 291 provides:
(1) The lessor may give a notice to leave the premises to the tenant without stating a ground for the notice.
(2) However, the lessor must not get a notice to leave under this section because:-
(a) The tenant has applied, or is proposing to apply, to a Tribunal for an order under this Act; or
(b) The tenant:-
(i) Has complained to a government entity about an Act or omission of the lessor adversely affecting the tenant; or
(ii) Has taken some action to enforce the tenants rights; or
(c) An order of the Tribunal is in force in relation to the lessor and the tenant
(3) Also, the lessor may not give a notice to leave under this section if the giving of the notice constitutes taking retaliatory action against the tenant.
In Du Preez v Linda’s Homes Pty Ltd[4] the President considered the meaning of retaliatory conduct as contemplated by subsection 3. He said:
[4] [2010] QCATA 2.
“[16] Section 291(3) requires careful consideration of the particular circumstances of each case in which it is raised. If ‘retaliatory’ is construed too broadly, almost any complaint by a tenant to an agent or landlord, or even a less than amicable exchange between them, might qualify in the sense that if the owner or its agent then gives a notice to leave the notice may be categorised as retaliatory. It is improbable the legislature intended that effect.
[17] Rather, the section appears to be designed to protect the tenant who has justifiably taken action of the kind set out in s 291(2) (or something similar has occurred, like non-compliance with an unwarranted or unjustified notice to remedy under s 281) and has then been served with a Notice which is apparently responsive to the tenant’s acts but also, in the prevailing circumstances, unreasonable, excessive or vindictive.
[18] In each case the decision-maker is required to consider the particular facts and circumstances which arise, and determine whether or not they can fairly be categorised as falling within the section.”
It therefore becomes clear that in determining whether the conduct is retaliatory, the Tribunal member must look at all the facts and circumstances and make an assessment as to whether the giving of the Notice to Leave under section 291 was because the tenant has done one of the things referred to in subsection 2.
When the matter came on before the learned Member, Mr King argued his case consistent with the matters set out in his application. On any view of the objective facts, the conduct of the respondent does seem to be responsive to its failure to succeed in having a termination order made in 2554/10 (the earlier application) and Mr King’s complaint to the Residential Tenancies Authority. The respondent was aware of this complaint and was asked to provide documents to the RTA[5]. The learned Member, in the very brief reasons given did not turn his mind to a consideration of the facts constituting the retaliatory conduct complained of by Mr King. He did say however he accepted that there was “a failure of communication between the parties rather than anything retaliatory”[6].
[5] Transcript page 10 line 1.
[6] Transcript page 8 line 20.
It is unfortunate that the Tribunal member did not descend into any detail in his reasoning consistent with that of the type suggested in Du Preez. It would have been of assistance, having found that there was a breakdown in communication, to properly deal with Mr King’s contention that he was subjected to retaliatory conduct, so at very least he would have a better understanding of the ruling against him. However, this will not be decisive of these applications for the reasons set out below.
In the subsequent minor civil dispute proceeding,[7] the respondent served on Mr King a notice to remedy breach on 8 September 2010. The notice related to Mr King subletting the rented premises to third parties without the landlord’s consent, through its agent, the respondent.
[7] 2715/10.
The respondent relies on section 238 of the Act which effectively prohibits subletting without the landlord’s consent. Subsection 2 provides:
“The tenant may transfer all or part of the tenants interest under the agreement, or sublet the premises, only if:-
(a) The lessor agrees in writing to the transfer or subletting; or
(b) The transfer or subletting is made under an order of the Tribunal.”
Consistent with the general law, the landlord’s consent to subletting must not be unreasonably withheld. Sublet has a simple enough meaning in that the tenant receives rent from a third person for that person’s right to occupy the premises. It is analogous to a residential tenancy agreement the definition of which is that the agreement gives a person a right to occupy residential premises at a residence[8].
[8] RTRA section 12.
Mr King acknowledged in the transcript in both applications that he was in fact subletting the premises and had done so from time to time in the past since the commencement of the tenancy. In fact, at the time the learned Member made the termination order, Mr King expressed concern that he had to “give notice to two other people”. He had not in the past sought the permission of the landlord prior to the issuing of the notice to remedy breach. Subsequent to the notice being issued, Mr King did apply for permission to sublet but was somewhat coy in that his application did not seek approval for individuals but simply sought a general right to sublet. This of course does to some extent fly in the face of section 238, because the lessor has an obligation to act reasonably and would obviously be fettered in the discharge of this responsibility, if the lessor was not given any information about the proposed sub tenant.
In any event, the notice to breach was not remedied within the required time and when the matter came on before the learned Member on 8 November 2010 the ground for terminating the tenancy was failure to leave pursuant to section 293 of the Act consequent upon Mr King’s failure to remedy the breach in accordance with the form 11 notice.
Given Mr King’s admissions as to subletting without the lessor’s consent, any allegation of retaliatory conduct in respect of the earlier Notice becomes irrelevant to the matters for consideration before the learned Member on 8 November 2010.
For leave to be granted, the applicant Mr King, must identify some error on the part of the learned Member[9]. No error is apparent from a perusal of the transcript, or the material that was put before him on 8 November 2010. Therefore, in the circumstances leave to appeal is refused.
[9] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
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