McLachlan v Real Tenants Real Property Management ACN 130683297
[2011] QCAT 665
•13 December 2011
| CITATION: | McLachlan v Real Tenants – Real Property Management ACN 130683297 [2011] QCAT 665 |
| PARTIES: | Mr Richard McLachlan |
| (Applicant) | |
| v | |
| Real Tenants – Real Property Management ACN 130683297 | |
| (Respondent) |
| APPLICATION NUMBER: | MCDT1222/11 |
| MATTER TYPE: | Residential tenancy matters |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Williams, Adjudicator |
| DELIVERED ON: | 13 December 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Tribunal dismisses the application. |
| CATCHWORDS: | Minor Civil Dispute – Residential Tenancy – Where application about a breach of a tenancy agreement must be made within six months after party becomes aware – Where application to have Notice to Leave set aside must be made within four weeks after notice was given – Whether the Tribunal has power to waive compliance with or extend the time limit imposed by Residential Tenancies and Rooming Accommodation Act Queensland Civil and Administrative Tribunal Act 2009, s 61 |
REASONS FOR DECISION
Introduction
The applicant tenant filed a claim in the Registry on 31 May 2011 and sought:
a)Compensation for the loss of amenity or standard of the property arising from the respondent’s failure to repair:
· The main bathroom shower, which allegedly “could not be used for almost 4 months due to a leaking rotten floor”;
· The exhaust fan in the kitchen, which allegedly “has not worked in the whole time of occupation and is still not operable”;
· The living room windows, which allegedly “have never had latches and when asked to be made secure and after almost 9 months the agent had the windows nailed shut.”
b)The Notice to Leave issued by the respondent be set aside; and
c)A determination on the amount of rent payable, in the event of the lease agreement being extended, in consideration of the outstanding repairs.
Relevant Facts
The parties entered into a general tenancy agreement for a fixed period of twelve months, from 8 May 2010 to 7 May 2011.
Notwithstanding the statutory obligation upon tenants to complete an Entry Condition Report and return same to the lessor or lessor’s agent within three days of occupation;[1] there is no evidence before the Tribunal that this was done. Instead shortly after occupying the premises the applicant and his wife emailed the respondent’s agent, Ms Ros Hurn on 15 May 2010 to raise a number of concerns:
[1] Section 65 Residential Tenancies and Rooming Accommodation Act2008.
“We note the matters you said would be fixed before we moved in have not been, including ie.
1) Floorboard on the deck,
2) Vanity bench in the ensuite, and
3) Taps in the bathroom off their spindle.
Sonia texted you re the oven seals. We have not had a reply. Also, the dishwasher power button does not work, and the upper tray slide catch is broken, causing the rotating washer to not work as the whole top deck sags. So I guess the dishwasher does not work. I texted you re the outside light at the front. Would be helpful if you know where the switch is.”
The brief of evidence filed by the applicant documents ongoing requests made to the lessor’s agent for repairs. Many of these requests were eventually attended to, however for the purposes of the compensation aspect of this claim, Mr McLachlan seeks a remedy for three specific fittings (as detailed above in paragraph 1 (a)) which he argues, have yet to be repaired.
Further there is no evidence of a Form 11 Notice to Remedy Breach served upon the respondent by the applicant during the course of the fixed term tenancy.[2]
[2] Namely 8 May 2010 to 7 May 2011, as stated in the written tenancy agreement.
As the term of the fixed tenancy neared expiry, the respondent wrote to the tenants on 10 March 2011 offering a lease renewal, with an increase in weekly rent from $1,075 to $1,225. The applicant replied via email on 6 April 2011 indicating an intention to stay in the property for a further 12 months, however rejected the essential term of the contract – namely the rental increase – arguing it was excessive. Mr McLachlan also noted “issues like the exhaust fan in the kitchen and the shower in the second bathroom have still not been fixed and expect no rent increase will apply until these matters are repaired.”
It appears by 29 April 2011 there was no successful negotiation between the parties of the weekly rent for the proposed tenancy. Subsequently the respondent wrote to Mr McLachlan and advised “to date we have not received your lease renewal therefore we have issued a Form 12, Notice to Leave.”
The Notice to Leave was dated 29 April 2011 and given on the stated grounds of “end of lease.”
A Notice to Remedy Breach dated 31 May 2011 was served on the respondent by the tenant and coincided with the filing date of the applicant’s QCAT claim. The breaches listed in the notice requiring remedy were:
“1. Failure to repair exhaust fan in kitchen at any time during the lease, causing smoke alarms and house alarm to be triggered regularly and therefore restricting tenants ability to use the kitchen; and
2. Failure to secure windows in living room in such a way that they are openable (sic) and closable in a secure manner as expected at the commencement of the lease.”
[10] The applicant and his family continue to occupy the property on a periodic basis awaiting the decision of the Tribunal.
Jurisdiction
[11] The Tribunal has jurisdiction to hear and decide this matter pursuant to sections 11 and 12 of the Queensland Civil and Administrative Tribunal Act 2009 (the ‘QCAT Act’). This was a claim by the applicant against the respondent for relief under the Residential Tenancies and Rooming Accommodation Act 2008 (‘the Act’).
Issues and Findings of the Tribunal
[12] The standard of proof required to support a claim in the minor civil dispute jurisdiction is not as high as the standard – ‘beyond a reasonable doubt’ required in criminal matters. Instead the ‘civil standard’ requires the applicant (or respondent, in regards to her counter-application) to provide on the ‘balance of probabilities’ that the other party contravened the Act.[3] The High Court case of Briginshaw v Briginshaw[4] is the leading case concerning the ‘civil standard of proof.’ In this instance the Tribunal must, on hearing the evidence and in consideration of the seriousness and gravity of the case, be ‘reasonably satisfied’ or feel ‘comfortably satisfied’ it can reach ‘a correct and just conclusion’ for each complaint as alleged.
A. Is the applicant’s claim impeded by any time limitations imposed by the Residential Tenancies and Rooming Accommodation Act 2008?
[3] Residential Tenancies and Rooming Accommodation Act (Qld).
[4] (1938) 60 CLR 336.
(i) Claim for compensation
[13] By virtue of section 419, a lessor or tenant may apply to the Tribunal for an order about a breach of a tenancy agreement. However subsection three (ss 3) requires the application must be made within six months after the party became aware of the breach.
[14] The applicant’s claim for compensation, arising from the alleged failure of the respondent to repair certain items, was filed on 31 May 2011. The wording of the Notice to Remedy Breach and the QCAT claim, suggests the applicant first became aware of the need for rectification work to the exhaust fan, main bathroom and living room windows, upon moving into the property (or shortly thereafter). The documentary evidence before the Tribunal supports this finding; as does it demonstrate knowledge on the part of the respondent, given the persistent requests by the applicant to have these items repaired.
[15] Therefore the applicant’s claim for compensation appears to have been filed outside the six months time limitation imposed by section 419(3) of the Act.
Claim to have Notice to Leave Set Aside
[16] The respondent issued a Notice to Leave upon the applicant, dated 29 April 2011. The notice here purports, on its face, to be a Notice to Leave ‘with grounds’ – those grounds being: ‘End of Lease’.
[17] In Alikhan v Mian Prestige Real Estate t/as Ray White Runaway Bay [2010] QCATA 21, where a Notice to Leave was issued on similar grounds, his Honour Justice Wilson held:
“That ground is not available as a basis for a notice to leave in any of the provisions contained in Subdivision 2 (ss 281-292). It follows that the notice was, in truth, one without grounds and, therefore, s 291 [of the Residential Tenancies and Rooming Accommodation Act] applied.”
[18] In the present matter, the Tribunal therefore finds the Notice to Leave, issued by the respondent to be a notice given without grounds and is subject to the application of section 291.
[19] Section 292(2) allows a tenant to apply to the Tribunal for an order to set aside the notice, which is the case here. However, subsection (3) requires “application must be made within four weeks after the notice was given.”
[20] Section 32CA, subsection (2) of the Acts Interpretation Act 1954 provides: “[i]n an Act, the word must, or a similar word or expression, used in relation to a power indicates that the power is required to be exercised.” Hence, the making of an application to set aside a Notice to Leave without grounds must occur within four weeks after the notice was given.
[21] Mr McLachlan filed his application to set aside the notice in Registry on Tuesday 31 May 2011. The Notice to Leave was issued on Friday, 29 April 2011 – therefore the applicant has sought relief from the Tribunal outside the period required under the Act.
B. Can the time limitations baring the applicant’s claim be waived or extended by virtue of section 61 of the Queensland Civil and Administrative Tribunal Act 2009?
[22] Section 61(1)(a) of the Queensland Civil and Administrative Tribunal Act2009 provides the Tribunal may, by order extend a time limit fixed for the start of a proceeding by this Act or an enabling Act.
[23] The issue is whether the Tribunal can use its power pursuant to section 61 to extend the time limits imposed by the Residential Tenancies and Rooming Accommodation Act 2009 upon which Mr McLachlan must file a claim (i) for compensation (as discussed above at paragraphs 13 to 15); and (ii) to set aside the Notice to Leave, without grounds.
[24] In Ryan v Cornwall [2010] QCAT 212 the Tribunal considered a similar issue, namely whether an extension could be granted pursuant to section 61 of the QCAT Act so a party could bring an action under the Domestic Building Contracts Act 2000.[5] In reaching its decision the Tribunal had regard to sections 7 and 43A of the Limitations of Actions Act 1954.
“The effect of section 43A of the LA Act declaring a limitation law of the State to be part of the substantive law of the State is to automatically extinguish the right on which a claim is based, once the limitation period for bringing proceedings to enforce the right has expired.
This is to be compared with a limitation period which (sic) is a procedural limitation period. Usually, procedural limitation provisions provide that an action “shall not be brought” after the limitation period has expired. The effect of a procedural provision is to bar resort to the courts for a remedy, but does not extinguish the right on which the claim is based. The right is still recognised by the law. A person who has other legal remedies, not subject to the limitation period, is able to exercise the right.”[6]
[5]Section 51 of the Domestic Building Contracts Act 2000 provides that a proceeding for breach of a warranty under the Act must be started within 6 years and 6 months after the subject work was finished.
[6] At paragraphs 27 and 28 in the decision of Ryan v Cornwall [2010] QCAT 212.
[25] For similar reasons as discussed in Ryan v Cornwall, the Tribunal finds sections 419(3) and 292(2) of the Residential Tenancies and Rooming Accommodation Act2008 as substantive provisions whereby the underlying right is extinguished on the expiry of the period of limitation. Express statutory authority is required to revive that right; and the Tribunal does not consider section 61 of the Queensland Civil and Administrative Tribunal Act2009 is expressed in sufficiently clear terms to override section 43A of the Limitation of Actions Act 1954.
[26] At paragraphs 30 and 31 in Ryan v Cornwall, the Tribunal gave the example of section 81 of the Supreme Court Act 1991 as being a statutory provision equipped with the power to expressly override section 43A of the Limitation of Actions Act 1954. The former section provides, inter alia, that a court may order an amendment to be made even though a relevant period of limitation, current when the proceeding was started – has ended. No such express overriding terms exist in the present matter.
[27] Furthermore the Tribunal accepts the findings in Ryan v Cornwall that section 61 of the Queensland Civil and Administrative Tribunal Act 2009 is expressed in its heading to be “relief from procedural requirements” and is not intended to be used to revive expired rights of action.
“[Instead] it is rather directed to matters set out in the QCAT Act and its enabling Acts, where time frames are set for machinery provisions of the legislation. The sorts of provisions covered are for example, applications to review a “reviewable decision” which must be made within 28 days. The note to section 33(3) of the QCAT Act indicates this time may be extended by section 61. Similarly it is anticipated by the note to section 143(4) of the QCAT Act that section 61 may be used to extend the 28 day time frame for starting an appeal against a decision of the Tribunal.”[7]
[7] At paragraph 31 in the decision of Ryan v Cornwall [2010] QCAT 212.
[28] The Tribunal therefore does not have the power to waive compliance with or extend the time limit imposed by sections 419(3) and 292(2) of the Residential Tenancies and Rooming Accommodation Act 2008. These are substantive provisions that have the effect of automatically extinguishing Mr McLachlan’s right to claim compensation and have the Notice to Leave set aside once the stated limitation period for bringing an action to enforce these rights has expired.
[29] The Tribunal dismisses both the applicant’s claims for compensation and to have the Notice to Leave set aside. Given there is no valid basis upon which the tenant can remain in the premises after the expiry of the handover date stipulated in the Notice to Leave, the Tribunal is not required to make a determination on the amount of future rent payable under a new lease agreement.
Conclusion
[30] In consideration of the matters mentioned above, the Queensland Civil and Administrative Tribunal is not satisfied Mr Richard McLachlan has established the grounds of his claim and dismisses the application.
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