Lea v Place West Rentals
[2010] QCATA 107
•15 December 2010
| CITATION: | Lea v Place West Rentals [2010] QCATA 107 |
| PARTIES: | Mr Darren Robert Lea |
| v | |
| Place West Rentals |
| APPLICATION NUMBER: | APL070-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 15 December 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: |
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| CATCHWORDS : | Residential Tenancy matter; failure to remedy breach to pay arrears of rent; where rent paid after the Notice to Leave and 4 days prior to hearing; exercise of discretion whether to make a termination order; whether exercise of discretion miscarried. Procedural Fairness; where recording equipment failed and transcript not produced; where no written reasons provided; whether denial of natural justice and whether the decisions should be set aside for rehearing. Queensland Civil and Administrative Tribunal Act 2009, ss 3, 4, 28,121,123,146 Residential Tenancies and Rooming Accommodation Act 2008 s 337 Edwards v Laraby Pty Ltd t/a Cruising Car Rental (No2) (2010) QCAT 005 followed |
REASONS FOR DECISION
Mr Lea was a tenant of a home unit at unit 10, 7 Prospect Street, Red Hill. That tenancy was managed by the respondent, Place West Rentals. Mr Lea became a tenant of the premises pursuant to a general tenancy agreement entered into on 29 May 2009. The period of the tenancy was for 12 months from 13 June 2009 to 13 June 2010. The rent was $290 per week.
On 25 February 2010, Place West Rentals gave to Mr Lea a Notice to Remedy Breach for arrears of rent in the sum of $495.71. The notice stated that:
“Rent is currently paid to 12/02/2010
Please pay all outstanding rent up to and including the rent due date as per your general tenancy agreement.”
The notice advised Mr Lea that the arrears had to be paid by 6 March 2010.
Mr Lea did not pay the arrears, and on 9 March 2010 the Respondent gave Mr Lea a Notice to Leave.[1]
[1] Pursuant to section 326 of the Residential Tenancy and Rooming Accommodation Act 2008 (“RTRA Act”)
The arrears of rent still not having been paid, the respondent filed an application in QCAT for a termination of the tenancy agreement on the grounds that Mr Lea failed to comply with the Notice to Leave.
The matter came on for hearing in QCAT on 16 April 2010 and a QCAT adjudicator made a decision terminating the tenancy agreement, issuing a Warrant for Possession requiring Mr Lea to vacate the premises by midnight on 30 April 2010.
In his defence, Mr Lea maintained that by the hearing date, that is 16 April 2010, he had paid all arrears of rent and this does not seem to be contested.
On 7 May 2010 Mr Lea filed an application for leave to appeal in which he set out the grounds of the appeal being that, as I have stated, that all arrears or rent were paid up to 30 April 2010 “prior to the Tribunal date of 16 April” 2010. The contention therefore seems to be that because he had paid the arrears by the hearing date, the learned adjudicator erred in making the termination order.
Unfortunately, in this matter, through technical error, the actual recording of the hearing is not available. As a consequence no transcript is available nor are the reasons for the Tribunal adjudicator’s decision. This is a rare occurrence but it has happened in the past and the consequences of it have been considered by the President[2]. In Edwards the President made these observations.
[2] Michael Edwards v Laraby Pty Ltd t/a Cruising Car Rental [2010] 005 at para 9-14
Under s 121 of the QCAT, Act the Tribunal must give reasons for its final decision in a proceeding either orally, or in writing (s 121(4)). If the Tribunal makes a final decision but does not give written reasons any party may, within 14 days after the decision takes effect, request written reasons. The Tribunal must comply with that request within 45 days. Under s 123 it is sufficient, however, for the Tribunal to satisfy the request by giving a party a written transcript or an audio recording of the part of the proceeding in which the decision or reasons are given orally.
Ordinarily, an applicant for leave to appeal must show a prima facie case of error in the primary decision, and that there is a question of importance upon which further argument and a decision of the appeal court would be to the public advantage[3]. As Dr J R S Forbes has observed[4], there is a strong case for treating reasons as an incident of natural justice; and: ‘a failure to give reasons adds insult to the injury of an adverse decision. Without reasons, how can a party be confident that the case was understood and properly considered?’
[3] 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 577.
[4] Justice in Tribunals (3rd Ed) (The Federation Press, Sydney, 2010) at p 249, para 13.2.
Section 121 contains passages making it tolerably clear that the requirement to give a final decision in writing, and reasons for that final decision either orally or in writing, is an exercise intended, at least in part, to ensure that appeals may be conducted in an orderly fashion. For example, s 121(2) provides that the Tribunal must also give each party a written notice explaining the appeal process under Chapter 2, Part 8 of the QCAT Act; and, in particular, s 121(2)(c) provides that if the final decision does not include the Tribunal’s reasons, the party must be informed that it may request those reasons under s 122.
While the proceedings themselves do not involve complex questions of fact or law, a combination of the Tribunal’s inability to meet its own statutory guidelines and, separately, the implicit denial of natural justice arising from the absence of reasons means the consequences involve a question of importance of the kind warranting leave to appeal.
As to the appeal itself, the QCAT Act distinguishes between appeals against a decision on the question of law only, and those on questions of fact, or mixed law and fact: ss 142, 146 and 147. For the reasons already explored the Tribunal’s inability to provide reasons involves, here, both an apparent denial of natural justice and a breach of the legislation governing tribunal procedure – on any view, under both heads, an error of law.
Although there is no evidence on the file that Mr Lea has formally requested reasons and a transcript, it is evident that there has been telephone communication between registry staff and Mr Lea which reasonably leads to the assumption that he has an expectation he will be provided with the reasons and a copy of the transcript. It therefore follows, similarly to the Edwards case, that there has been an error of law and leave to appeal should be granted. The question then arises as to whether or not the appeal should be allowed and whether the matter should be remitted for rehearing. In my view, this course would not result in any utility having regard to the ground of the substantive appeal, which seems to be that the adjudicator’s exercise of discretion miscarried.
[10] The notes from the file indicate that Mr Lea had paid all arrears of rent by 12 April 2010. This was approximately 1 month after he was required to do so by reason of the Notice to Remedy Breach. Had he complied with the Notice to Remedy Breach, there would be no basis to make the termination order. However, section 337 of the RTRA Act provides:-
“Failure to leave for unremedied breach
(1) This section applies if—
(a) an application is made to a tribunal for a termination order because of a failure to leave; and
(b) the notice to leave was given because of an unremedied breach.
(2) The tribunal may make the order if it is satisfied—
(a) the lessor has established the ground of the application and notice to leave; and
(b) the tenant committed the breach of the agreement stated in the notice to remedy breach about which the notice to leave was given; and
(c) the breach justifies terminating the agreement.
(3) In deciding if the breach justifies terminating the agreement, the tribunal may have regard to—
(a) the seriousness of the breach; and
(b) any steps taken by the tenant to remedy the breach; and
(c) whether the breach was recurrent and, if it was recurrent, the frequency of the recurrences; and
(d) the detriment caused, or likely to be caused, to the lessor by the breach; and
(e) whether the lessor has acted reasonably about the breach; and
(f) any other issues it considers appropriate.”
[11] Clearly, pursuant to subsection 2, Place West Rentals had grounds to give Mr Lea the notice to leave as the breach was not remedied. The payment of the rent on 12 April 2010 did not give Mr Lea a right to have the application for the termination order dismissed. What it did create, was a basis upon which the adjudicator could exercise the discretion provided for in subsection 3.
[12] In the application filed, and in the submissions of Mr Lea, he does not identify any basis upon which it can be said that the adjudicator’s discretion miscarried. He simply contends that as he had paid the rent on 12 April 2010 the termination order should not have been made.
[13] Section 3(b) of the QCAT Act provides that the Tribunal must deal with matters in a way that is fair, just, economical, informal and quick. That is done by ensuring that there is an early and economical resolution of disputes and that proceedings are conducted in an informal way that minimises costs.[5] Furthermore, the Tribunal must ensure that the proceedings are conducted in a way that reflects the substantial merits of the case and with as little technicality and formality, and as much speed as the legislation, and a proper consideration of the matters before it permit[6].
[5] Section 4(b)(c)
[6] QCAT Act section 28.
[14] The uncontested facts are that Mr Lea’s rent was in arrears, a notice to remedy breach issued and he still failed to pay the arrears of rent resulting in the notice to leave. In the absence of any basis upon which it can be contended that the exercise of discretion miscarried, to then direct that this matter be returned for further consideration, would offend the aims and objectives of the QCAT Act, particularly in circumstances where there is no basis to conclude that the outcome was not substantially fair and just.
[15] In the circumstances, the decision below should be affirmed and the appeal dismissed.
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