Madsen v Wiltshire

[2010] QCATA 11

CITATION: Madsen v Wiltshire [2010] QCATA 11

PARTIES:	Richard Madsen (Applicant)
v
Kristie Wiltshire (Respondent)

APPLICATION NUMBER:            APL014-10               

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: President

DELIVERED ON:   30 April 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Application for leave to appeal is refused.    

CATCHWORDS : 

RESIDENTIAL TENANCIES – TERMINATION OF TENANCY – where agent applied for termination order – where tenant paid full arrears of rent by date of hearing – where Magistrate dismissed application – whether erroneous exercise of discretion

Residential Tenancies and Rooming Accommodation Act 2008, ss 293, 337

APPEARANCES and REPRESENTATION (if any):

APPLICANT: 

RESPONDENT: 

REASONS FOR DECISION

1. Mr Madsen is the owner of a property at 1 Denchley Street, Tannum Sands. Ms Wiltshire has been a tenant in the property since 16 October 2009 under a General Tenancy Agreement in Form 18(a) under the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA).

1. On 14 December 2009 real estate agents who managed the property for Mr Madsen served Ms Wiltshire with a Notice to Remedy Breach in Form 11 alleging that she was 20 days in arrears with rent, and must remedy that breach by 11 January 2010.

1. On 12 January the agents served Ms Wiltshire with a Notice to Leave in Form 12 demanding that because she had not paid the arrears she must quit the premises within seven days i.e. by midnight on 19 January 2010.

1. When Ms Wiltshire continued to occupy the premises Mrs Nicole Nation of the managing agents (Elders Real Estate, Gladstone) began proceedings on Mr Madsen’s behalf seeking an order that the tenancy be terminated under s 293 of the RTRA because of the tenant’s unlawful failure to leave.

1. The application originally came on for hearing before a Magistrate sitting as a QCAT adjudicator on 1 February 2010. After some enquiries from the Magistrate of Mrs Nation about the times which had been allowed to the tenant under the notices, the matter was adjourned until 8 February.

1. On that day, a hearing was conducted. The learned Magistrate has provided reasons for his decision after the hearing, in which he observed that Ms Wiltshire had paid the arrears of rent one day late (in terms of the Form 11), on 12 January; and, when the matter first came before him on 1 February 2010 the rent was up to date.

1. He then referred to s 337 of the RTRA (“Failure to Leave for Unremedied Breach”) which empowers this Tribunal to make an order terminating a tenancy because of a failure to leave if that notice has been properly given in reliance upon an unremedied breach. The learned Magistrate concluded that the tenant had committed the breach of agreement stated in the Notice to Remedy and that the agent had established, on the lessor’s behalf, the grounds of the application and the notice to leave.

1. He then referred himself to s 337(2)(c) which attaches some discretion to the decision whether an order to terminate should be made: “The Tribunal may make the order if it is satisfied - … the breach justifies terminating the agreement”.

1. The nature of that discretion is amplified in s 337(3) which says that, in deciding if the breach justifies terminating the agreement, the Tribunal may have regard to its seriousness; any steps taken by the tenant to remedy it; whether the breach was recurrent and, if it was, the frequency of the recurrences; the detriment caused or likely to be caused to the lessor by the breach; whether the lessor has acted reasonably about the breach; and, any other issues it considers appropriate.

1. The learned Magistrate, after reviewing the background to the Notice to Remedy and the Notice to Leave, said:

In the circumstances, having regard to the seriousness of the breach, the steps taken by the tenants to remedy the breach, I am not satisfied at this stage that there is a recurrent breach and given that the tenant has now brought all arrears up to date and has the rent paid to date as of last Monday, and again today, in my opinion it would be unjust to issue a warrant against the tenant, and in the circumstances, the application is dismissed. (sic)

1. Because the proceeding before the learned Magistrate was what the QCAT Act calls a minor civil dispute, the applicant must seek leave to appeal: Queensland Civil and Administrative Tribunal Act 2009, s 142(3). The applicant is obliged to show that some important point of principle, or a matter going to the public benefit, warrants the grant of leave.

1. Nothing in the circumstances raised by the applicant or, otherwise in the transcript of the proceedings or the learned Magistrate’s reasons suggests that he misdirected himself about the proper application of s 337(3). As the reasons show, he took relevant issues into account and chose, in all the circumstances of the case, to give particular weight to his conclusion that the breach was not a serious one and that the tenant had taken satisfactory steps to remedy it. He did so after quite a lengthy hearing (the transcript takes up 16 pages) in which both parties were able to explain the history of the tenancy and rent payments at length.

1. The exercise of the discretion in the manner adopted by the learned Magistrate was, plainly, reasonably open. No error of law in construing s 337 or in applying the discretion arising under it has been made out. The application for leave does not compel any further analysis, consideration or construction of s 337 and no important question of principle, about any aspect of it, arises. For these reasons the application for leave to appeal is refused.