Miller v Bridgebury Real Estate Pty Ltd
[2020] QCATA 178
•7 February 2020
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Miller & Ors v Bridgebury Real Estate Pty Ltd [2020] QCATA 178
PARTIES: COREY MILLER, SARAH ROSSITER, EMILY ROSSITER (applicant/appellant)
v
BRIDGEBURY REAL ESTATE PTY LTD (respondent)
APPLICATION NO/S:
APL104-19
ORIGINATING APPLICATION NO/S:
Pine Rivers MCDT0378/18
MATTER TYPE:
Appeals
DELIVERED ON:
7 February 2020
HEARING DATE:
5 February 2020
HEARD AT:
Brisbane
DECISION OF:
Dr J R Forbes, Member
ORDERS:
1. The application for leave to appeal is granted.
2. The appeal is allowed.
3. The order made herein by the Tribunal on 2 April 2019 is set aside.
4. If the Applicants have in fact paid the amount of the primary judgment to Bridgebury, the latter must refund that amount to the appellant within fourteen days of notice of this decision.
CATCHWORDS:
APPEAL – APPLICATION FOR LEAVE TO APPEAL – tenancy agreement – application for arrears of rent –whether landlord received insurance against tenants’ default – whether any insurance received stands to the tenants’ credit – whether application brought within time – whether claim statute barred by section 419 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) – whether position modified by section 417 of that Act – whether error of law shown – whether leave to appeal should be granted – whether appeal should be allowed – where leave to appeal granted and appeal allowed
Queensland Civil and Administrative TribunalAct 2009 (Qld) s 32
Residential Tenancies and Rooming AccommodationAct 2008 (Qld) s 362, s 402, s 417, s 419.
Bourke v Kenjad Rentals [2019] QCATA 81
Cleak v Hirt [2013] QCATA 321
Daminato v Ingle & Ors [2012] QCATA 233
Durrand & Anor v Karaolis & Anor [2012] QCATA 182
Hughes & Anor v Garnett [2017] QCATA 26
Parktrent Properties Group & Ors v Hancox [2018] QCATA 90
Raymond v Doidge [2012] QCAT 163
Realgo Investments Pty Ltd v Daley [2013] QCATA 81
Routley v Philip & Anor [2019] QCATA 119
Sunners v Define Property Mooloolaba & Ors [2013] QCATA 289Scholefield v High Surf Resorts Pty Ltd [2013] QCATA 157
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
In September 2017 the applicants Cory Miller, Sarah Rossiter and Emily Rossiter (`the Applicants’) leased 13 Wingara Grove Ferny Hills, Brisbane, from Matthew Klauss for 12 months. However, that arrangement did not run its full course. The Applicants defaulted, principally in the matter of rent, and left the premises on or about 22 March 2018. [1]
[1]Transcript of hearing 2 April 2019 (`T’) page 6 line 28.
The present respondent Bridgebury Real Estate Pty Ltd (`Bridgebury’), as managing agent, commenced these proceedings on the landlord’s behalf [2], but not until 8 December 2018.
[2]Pursuant to Clause 43 of the standard REIQ agreement.
By the time of the trial [3] the dispute was focused upon a claim for arrears of rent from 5 March 2018 to 10 April 2018, [4] allegedly amounting to $2683.02. [5]
[3]2 April 2019.
[4]T page 21 lines 26-29; page 29 line 44.
[5]Dispute application filed 8 December 2018 page 3 Part C.
In the event, Bridgebury was awarded $2315.57.
The Applicants now seek leave [6] to appeal that decision. Their proposed grounds of appeal are:
(a)That Bridgebury has recovered the amount of its claim from its insurer;
(b)That Bridgebury’s claim is statute barred; and
(c)That Bridgebury failed in a duty to mitigate its claim. [7]
[6]There is no appeal as of right; leave to appeal is required by s 142(3)(a)(i) of the QCAT Act.
[7]Application for leave to appeal filed 30 April 2019 page 3.
Ground (a) An insurer has already paid the landlord
This submission accuses Bridgebury of `double dipping’. Incidentally, it ignores the fact that insurance may cost the insured a substantial amount of money, which is not refundable when a valid claim is paid out. But further, the Applicants face practical problems of proof. There is some evidence that a claim was made [8] , but no evidence of payment, or the amount (if any) of such payment. [9]
[8]Submissions of Applicants to tribunal 2 April 2019.
[9]T page 25 lines 41-45 (Smith).
An appeal to the doctrine of subrogation is more rhetorical than enlightening:
`The law of subrogation protects us against this application ... The law of subrogation protects us’. [10]
[10]T page 25 lines 25, 46.
But to the extent that an insurer indemnifies its insured, any related right of action effectively passes to the insurer, to whom the insured, in principle, is accountable if the insurer does not formally take charge of the action. [11] Whether such an accounting actually occurs is a matter between insurer and insured.
[11]Meagher, Gummow and Lehane Equity, Doctrines and Remedies 2nded Butterworths 1984 paragraphs 930, 932.
There is no substance in this ground of appeal.
Ground (b) Is the landlord’s action statute barred?
Section 419 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) deals with actions by lessors and tenants for breaches of residential tenancy agreements. Clearly a failure to pay rent as it becomes due is such a breach. However, subsection 419(3) provides that any such application must be made within 6 months after the lessor (in this case) `becomes aware of the breach’. As keeper of the landlord’s accounts Bridgebury was no doubt well aware in mid-April 2018 of the arrears for the period ending on 10 April 2018. [12]
[12]Bridgeway’s diligent scrutiny of accounts is evidence by a series of Notices to Remedy Breach; see e.g. Notice dated 3 April 2018.
Section 419(3) (`the time limit’) is a mandatory, substantive provision, not a mere matter of procedure that the Tribunal may relax. Appellate decisions of this Tribunal to that effect, including judgments of judicial members, are legion. [13]
[13]See for examples Bourke v Kenjad Rentals [2019] QCATA 81 at [4], Cleak v Hirt [2013] QCATA 321at [6] (Deputy President), Daminato v Ingle & Ors [2012] QCATA 233 at [6], Realgo Investments Pty Ltd v Daley [2013] QCATA 81 at [4]. Durrand & Anor v Karaolis & Anor [2012] QCATA 182 at [6] (Wilson J, President).
The Applicants expressly raised the time limit issue at the trial. [14]
[14]T page 24 line 45ff. Page 25 lines 9-10.
The Adjudicator responded:
But an application to the RTA [15] is considered to be an application to the tribunal. There are appeal decisions on that which confirm that. [16]
[15]Residential Tenancies Authority. As to applications to the RTA see Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (`RTRA Act’) s 402.
[16]T page 25 lines 12-13.
There the issue rested, as submissions on a different point were made. The learned Adjudicator did not cite any relevant decision, but it is evident that he had in mind, primarily, the recondite [17] section 417(2) of the RTRA Act:
A reference in the provision to the making of an application about the dispute issue includes a reference to the making of a dispute resolution request to the authority about the dispute issue.
[17]`This provision could be better worded’: Parktrent Properties Group & Ors v Hancox [2018] QCATA 90 at [13] per Member Howe.
There does not appear to be any higher authority on that provision, but it appears well settled by appellate and other decisions of this tribunal that when section 417 is engaged –
It follows that where the rent dispute has been referred to the RTA, the clock stops on the date of that reference and not when the claim for rent arrears is made to the Tribunal. [18]
[18]Raymond v Doidge [2012] QCAT 163 at [35].
And further:
Making a dispute resolution request to the Residential Tenancies Authority is deemed to be making an application about the matter to the Tribunal. [19]
[U]nder s 417(2) the relevant date for calculating the limitation period under s 419(3) ... is when a dispute resolution request is made to the Residential Tenancy Authority. [20]
[19]Parktrent Properties Group & Ors v Hancox [2018] QCATA 90 at [13]
[20]Routley v Philip & Anor [2019] QCATA 119 at [10]. See also Sunners v Define Property Mooloolaba & Ors [2013] QCATA 289 at [6], Scholefield v High Surf Resorts Pty Ltd [2013] QCATA 157 at [7], Hughes & Anor v Garnett [2017] QCATA 26 at [10].
What is the factual position in this case? The initiating process was filed on 8 December 2018. Bradbury was aware, or should have been aware of the breach relied on within a few days of 10 April 2018, that is, the terminal date of the relevant rent period. [21]
[21]As recorded in T page 21 lines 26-29; page 29 line 44.
The time lapse between mid-April 2018 and the filing in the Tribunal on 8 December 2018 is manifestly in excess of six months. However, the effect of section 417 must also be considered.
A significant document in evidence is a letter from the Residential Tenancies Authority to Bridgebury, dated 15 November 2018, and noting:
Date Dispute resolution request received: 13/11/2018.
In effect, that document backdates the commencement of proceedings to mid-November 2018, but that is of no assistance to Bridgebury, for it still follows that the proceedings were commenced out of time. The `strict’ [22] requirements of section 419 still bar the action.
[22]Realgo Investments Pty Ltd v Daley [2013] QCATA 81 at [7] per Horneman-Wren Deputy President.
Accordingly the award of $2315.57 to Bridgebury cannot stand. Leave to appeal must be granted and the appeal allowed.
It is unnecessary to consider the third ground of appeal, alleging failure to mitigate. Suffice it note that section 362 is not concerned with claims for arrears of rent.
According to an email from Bridgebury to QCAT dated 19 June 2019, and notwithstanding the application for leave filed on 30 April 2019, the Applicants have already paid the amount of the primary judgment to Bridgebury. If that is so, the amount so paid will now be refundable to the Applicants as moneys had and received to their use.
ORDERS
The application for leave to appeal is granted.
The appeal is allowed.
The order made herein by the Tribunal on 2 April 2019 is set aside.
If the Applicants have already paid the amount of the primary judgment to Bridgebury, that company must refund that amount to the Applicants within fourteen days of notice of this decision.
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