Lowe v Aspley
[2010] QCATA 59
•7 October 2010
| CITATION: | Lowe v Aspley [2010] QCATA 59 | |
| PARTIES: | Mr Timothy William Lowe (Applicant) | |
| v | ||
| Ray White Aspley (Respondent) | ||
| APPLICATION NUMBER: | APL193-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 4 October 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President |
| DELIVERED ON: | 7 October 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Leave to appeal is granted. 2. The Appeal is allowed. 3. The orders made by QCAT on 31 August 2010 are set aside. 4. The application to QCAT in Minor Civil Dispute matter no. Brisbane 2205/10 for a termination order is dismissed. 5. Declaration made that, as at 5 October 2010 rent of $599.50 is payable by Mr Lowe pursuant to the tenancy agreement. 6. Mr Lowe must provide Ray White Aspley, at their premises at Aspley Arcade, 1374 Gympie Road, Aspley, with a set of keys to the premises by close of business 11 October 2010. Ray White Aspley must reimburse Mr Lowe for the expense of copying the keys upon production of an invoice showing the sum paid. |
| CATCHWORDS : | APPEAL – APPLICATION FOR LEAVE TO APPEAL – where error of law RESIDENTIAL TENANCIES – TERMINATION OF TENANCY – where notice to remedy breach issued – where tenant remedied breach within time – where breach waived by payments – where notice to leave issued for failure to remedy breach – whether proceedings could be brought for failure to leave – whether tenancy wrongfully terminated Residential Tenancies and Rooming Accommodation Act 2008, ss 278, 280, 281,293, 415, 416 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Timothy William Lowe |
| RESPONDENT: | Ray White Aspley represented by Paul Hodkinson Kim Buchanan |
REASONS FOR DECISION
These proceedings raise questions about whether a lessor or agent can commence proceedings in QCAT to terminate a tenancy after a tenant has paid rent in the amount and by the date demanded in a Notice to Remedy a Breach of the tenancy agreement.
Mr Lowe rented premises at Silver Ash Court Warner managed by an agent, Hodking Pty Ltd trading as Ray White Aspley. He fell behind in rent. The agent, on behalf of lessor, took action to recover the rent and commenced proceedings before QCAT to terminate the tenancy.
On 31 August 2010, in Mr Lowe’s absence, a member of QCAT made an order terminating the tenancy and issued a warrant for possession of the premises.
[4] Mr Lowe applied for leave to appeal (and, if successful to appeal) the decision. Mr Lowe argued, on a proper interpretation of the relevant provisions of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA), the agent could not commence the proceedings and QCAT should have dismissed its application.
In the course of the appeal, an application to stay the warrant was refused and Mr Lowe and his family were evicted. Mr Lowe then unsuccessfully applied to reopen the original proceedings.[1] During that hearing, the learned adjudicator heard from a representative of Ray White Aspley who confirmed the amounts and dates of payments Mr Lowe said he had made. At that hearing, Mr Lowe requested an urgent hearing by a QCAT Appeal Tribunal of an application to stay the order terminating the tenancy.
[1] Because an appeal had been brought, the proceedings could not be reopened: Queensland Civil and Administrative Tribunal Act 2009 section 138(5)
I heard that application the same day. On the evidence that Mr Lowe had paid the rent demanded, I stayed the order which had terminated the tenancy and declared the warrant of possession, which had been issued pursuant to the order now stayed, had no further force or effect. I made other orders to facilitate Mr Lowe and his family re-entering into possession of the premises that night.
There are no disputes between the parties about the relevant facts. Nor did the agent argue for a different interpretation of the law than that put forward by Mr Lowe. Rather, it requested a ruling from the QCAT Appeal Tribunal about that. Ray White Aspley submitted, and I accept, that the agent acted in the belief that it was entitled to take the action that it did.
The facts are:
a)Ray White Aspley issued a Notice to Remedy Breach (form 11) to Mr Lowe on 16 July which stated the amount required to be paid to remedy the breach was $760.00 and the date by which the breach must be remedied as 25 July 2010.[2]
b)Mr Lowe made payments of $380 each, a total of $760.00, on 20 and 22 July 2010, before the date stated in the Notice to Remedy Breach (form 11).
c)Ray White Aspley issued a Notice to Leave (form 12) on 28 July 2010 for failure to remedy the breach.[3] It stated that the rent had been paid to 21 July 2010. The notice specified the handover date expired at midnight on 6 August 2010.
d)Mr Lowe did not vacate the premises on that date.
e)Ray White Aspley commenced proceedings in QCAT on 18 August 2010, relying on Mr Lowe’s failure to leave.
f)The application claimed rent arrears of $380.00 plus the QCAT application fee of $20.50, a total of $400.50.
[2] Residential Tenancies and Rooming Accommodation Act 2008 s280
[3] Residential Tenancies and Rooming Accommodation Act 2008 s281
The application brought by Ray White Aspley depended upon Mr Lowe’s failure to leave the premises in accordance with the Notice to Leave[4]. The Notice to Leave was issued on the basis that Mr Lowe failed to remedy the breach[5]. Acceptance by Ray White Aspley of the two (2) payments of $380.00 made within the remedy period operated to waive Mr Lowe’s breach of the tenancy agreement.[6]
[4] Residential Tenancies and Rooming Accommodation Act 2008 s 293
[5] Residential Tenancies and Rooming Accommodation Act 2008 s 281(2)
[6] Residential Tenancies and Rooming Accommodation Act 2008 s 278(2)(3)
[10] While Mr Lowe owed further rent after he remedied the breach that had been notified, that did not provide the factual basis for commencing proceedings to terminate the tenancy agreement. The RTRA is prescriptive about the requirements for issuing Notices and commencing proceedings. The consequences that can flow from a tenant’s failure to comply with Notices issued under the RTRA explains the degree of prescription. If the tenant fails to comply with validly issued notices, the agent is entitled to commence urgent proceedings,[7] without the need to enter into discussions with the tenant in an effort to resolve the dispute[8]. The end point of that process is an order to terminate the tenancy.
[7] Residential Tenancies and Rooming AccommodationAct 2008 section 415
[8] Residential Tenancies and Rooming Accommodation Act 2008 section 416
[11] The requirements are not merely a matter of form; they are preconditions to QCAT’s jurisdiction to grant relief under the RTRA. The path that the agent took to proceedings in QCAT in this case required a series of steps to be taken in order. Each stood like one in a line of dominos. If one fell it brought the others down with it.
[12] The Notice to Leave was not validly issued because it relied on a breach that had been remedied and which, pursuant to the RTRA, had been waived. QCAT was not able to make the orders it did. The member who made the orders erred in doing so. Mr Lowe is granted leave to appeal and his appeal is upheld.
[13] The orders made by the learned member on 31 August 2010 are set aside and the application by the agent is dismissed.
[14] Since these proceedings commenced circumstances have changed for both parties. It is appropriate that, on appeal, I make those orders necessary to restore the parties to the position they should have been in had the orders not been made[9]. In doing so, I take into account the factors raised by the parties at the hearing. I also take into account that Mr Lowe did not attend the hearing before the member or seek to place any evidence or argument before him.
[9] Queensland Civil and Administrative Tribunal Act 2009 s 146(b)
[15] Mr Lowe argued the application by Ray White Aspley was frivolous, vexatious or misconceived and should have been dismissed.[10] I see no basis for finding it was either frivolous or vexatious. It is true that it was misconceived.
[10] Queensland Civil and Administrative Tribunal Act 2009 s 47
[16] Mr Lowe sought an order to compensate him for his reasonable costs, expenses, loss, inconvenience and embarrassment resulting from these proceedings. He relied on section 47(2)(c) of the QCAT Act. That permits the Tribunal to make a cost order. Regardless of the purpose for which a costs order may be made, the order relates to the costs of the proceedings.[11] As a self represented party, Mr Lowe has not incurred costs that could be awarded under a costs order.
[11] Queensland Civil and Administrative Tribunal Act 2009 schedule 3
[17] In any case, I have accepted that Ray White Aspley brought these proceedings in good faith in the belief that it was entitled to do so. Their error was compounded by the decision of this Tribunal at first instance. Mr Lowe has not provided any material to quantify his claim. I decline to make an order under section 47.
[18] It is appropriate to declare what rent Mr Lowe owes at the date of this decision. The parties agree that as at 5 October[12] Mr Lowe owed $840. That calculation takes into account the $400.50 received from the bond dispersed by the Residential Tenancies Authority in accordance with the member’s order, $380 of which was credited to Mr Lowe’s rental arrears.
[12] Pursuant to the tenancy agreement rent falls due on the Tuesday each week
[19] Mr Lowe and his family were evicted on 28 September and resumed possession at around 8pm on 29 September. The agent properly conceded Mr Lowe did not have the benefit of the premises for two (2) days. Rent for seven (7) days is $380 or $59.99 per day. $120 should be deducted from the arrears as should the QCAT filing fee of $20.50 which was deducted from the bond refunded to the agent. Reducing the rent to account for the filing fee and the 2 days he was not able to occupy the premises, I declare that, as at 5 October, Mr Lowe owes rent of $599.50.
[20] Ray White Aspley requested I make a number of further orders:
a)That Mr Lowe immediately reinstate the bond of $1,520.00, which had been dispersed in accordance with the member’s order;
b)That Mr Lowe pay rent arrears immediately;
c)That Mr Lowe pay rent when due in accordance with the tenancy agreement;
d)That the existing lease under the same terms and conditions be reinstated;
e)That Mr Lowe provide Ray White Aspley with a copy of the keys to the premises, Ray White Aspley to reimburse him for the costs of doing so.
[21] Mr Lowe did not dispute those orders but sought time to pay the bond and arrears of rent. Ray White Aspley opposed that request.
[22] The effect of setting aside the decision of the Member is that the tenancy agreement remains on foot subject to its terms and conditions. It is not necessary to make further order about it.
[23] I accept Mr Lowe should be given a reasonable time to reinstate the bond. In deciding what is reasonable, I have taken into account that on or about 15 September Mr Lowe received $1,139.50 from the bond refund, the balance after deducting the sum of $400.50 paid to the agent. Mr Lowe did not explain why he needed a month to raise the bond. In the circumstances, I allow Mr Lowe until Monday 18 October (6 working days from the date of this order) to reinstate the bond.
[24] Apart from the two (2) days he was out of the property, he has received the benefit of the tenancy throughout the period to which the rent relates. The declaration made about the rent accounts for those two days. Pursuant to the tenancy agreement, that sum is payable immediately. I decline to make any further order about the rent.
[25] I order Mr Lowe provide Ray White Aspley, at their premises at Aspley Arcade, 1374 Gympie Road, Aspley, with a set of keys to the premises. This must be done by close of business on Monday 11 October. I direct Ray White Aspley to reimburse Mr Lowe for the expense of copying the keys upon production of an invoice showing the sum paid.
Orders:
Leave to appeal is granted.
The Appeal is allowed.
The orders made by QCAT on 31 August 2010 are set aside.
The application to QCAT in Minor Civil Dispute matter no. Brisbane 2205/10 for a termination order is dismissed.
Declaration made that, as at 5 October 2010 rent of $599.50 is payable by Mr Lowe pursuant to the tenancy agreement.
Mr Lowe must provide Ray White Aspley, at their premises at Aspley Arcade, 1374 Gympie Road, Aspley, with a set of keys to the premises by close of business 11 October 2010. Ray White Aspley must reimburse Mr Lowe for the expense of copying the keys upon production of an invoice showing the sum paid.
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