Lowe v Aspley

[2010] QCATA 59

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
Queensland Civil and Administrative Tribunal Act 2009, ss 47, 138(5), 146(b)

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Timothy William Lowe (self represented)
RESPONDENT:	Ray White Aspley represented by Paul Hodkinson Kim Buchanan

REASONS FOR DECISION

1. 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.

2. 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. 

3. 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.

1. 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…