Naserpour v F
[2024] QCATA 62
•13 June 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Naserpour v F & Ors [2024] QCATA 62
PARTIES:
AMIN NASERPOUR
(APPLICANT/APPELLANT)
v
LI F (first respondent)
and
LI ZHANG
(second respondent)
and
CENDANA PROPERTY GROUP PTY LTD
(third respondent)
APPLICATION NO/S:
APL088-24
ORIGINATING APPLICATION NO/S:
Q4010-23 (Brisbane)
MATTER TYPE:
Appeals
DELIVERED ON:
13 June 2024
HEARD AT:
Brisbane
DECISION OF:
Member Lember
ORDERS:
1. Leave to appeal granted.
2. Appeal allowed.
3. The decision of 5 March 2024 is set aside.
4. The application in Q4010-23 (Brisbane) is remitted to the minor civil dispute jurisdiction for rehearing.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where a dispute resolution request was made within thirty days of a new tenancy agreement being signed – where residential tenancy dispute grounded upon section 71 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) dismissed as having been filed out of time – application of section 417
Queensland Civil and Administrative Tribunal Act2009 (Qld), s 32, s 143
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 71, s 415, s 416, s 417, s 419
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Grebeneva & Anor v Ray White Deception Bay & Ors [2024] QCATA 16
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld).
REASONS FOR DECISION
What is this application about?
On 20 June 2023 the applicants signed a residential tenancy agreement agreeing to a weekly rent of $1,400.00. They applied to the Residential Tenancies Authority (‘RTA’) for dispute resolution on 29 June 2023, received a Notice of Unresolved Dispute (‘NURD’) on 20 July 2023 and applied to the tribunal for relief under section 71 of the Residential Tenancies and Rooming Accomodation Act 2008 (Qld) (‘RTRAA’) by an application made 8 August 2023.
On 5 March 2024 the application was dismissed by the Tribunal below on the basis that it was filed out of time.
The applicants seek leave to appeal, and to appeal the decision to dismiss their application.[1]
[1]QCAT Act, s 143(3).
In determining whether to grant leave, the Appeal Tribunal must be satisfied that:
(a)there is a reasonably arguable case of error in the primary decision;[2]
(b)there is a reasonable prospect that the appellant will obtain substantive relief;[3]
(c)leave is needed to correct a substantial injustice caused by some error;[4] or
(d)there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[5]
[2]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3]Cachia v Grech [2009] NSWCA 232, 2.
[4]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.
Error in the primary decision
Under section 71 of the RTRAA, a tenant may apply to the tribunal about a significant change in their tenancy agreement, and, if it relates to rent, may seek an order reducing the rent payable. The application must be made within 30 days after the tenant enters into the new agreement.
RTA dispute resolution process must have been completed (not merely requested) before the application is made to the tribunal.[6]
[6]RTRAA, section 416.
Importantly, section 417(2) of the RTRAA deems an application to the tribunal to have been made on the date a dispute resolution request is made to the RTA.
On 8 April 2024 directions invited submissions as follows:
As the application for leave to appeal cites, among other things, an error with respect to dismissing the claim under section 71 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) as being out of time, the Appeal Tribunal notes:
(a) the time limit for bringing such a claim is within 30 days of signing the new agreement,
(b) the new agreement was signed by the tenant on 20 June 2023 and by the lessor on 23 June 2023,
(c) according to the Notice of Unresolved Dispute filed in the proceeding, a dispute resolution request was made on 29 June 2023, and
(d) section 417(2) applies such that the application is deemed to have been made on 29 June 2023,
It therefore appears that the application with respect to section 71 was made within time and ought to have been considered by the Tribunal below. Rather, the decision of 5 March 2024 dismissed the application as having been filed out of time on 8 August 2023 (when the minor civil dispute application was filed). As this appears to be an error of law, the Appeal Tribunal is considering granting leave to appeal, allowing the appeal, setting aside the dismissal and remitting the matter back to the minor civil dispute jurisdiction to be reheard. See: Grebeneva & Anor v Ray White Deception Bay & Ors [2024] QCATA 16.
The respondents dispute the application of section 417(2) and say that the RTRAA does not permit the applicants to lodge a dispute resolution request within thirty days of the new tenancy being entered into in order to satisfy the section 71(4) time limit.
They say that section 416, which requires dispute resolution to commence tribunal proceedings, is clearly intended as a pre-requisite to an application being filed with the tribunal and not as a commencement point of such proceedings.
They further say that Grebeneva was decided in error, and incorrectly applied the deeming provision in section 417(2) to time constraints rather than to the ‘dispute issue’.
The Appeal Tribunal is not with the respondents on their submissions.
The express words of section 417(2) are (emphasis added):
417 Reference to making of tribunal application includes making of dispute resolution request
(1) This section applies if—
(a) an application about an issue (the dispute issue) may be made to a tribunal by—
(i) the lessor or tenant under a residential tenancy agreement; or
(ii) a provider or resident under a rooming accommodation agreement; and
(b) under a provision of this Act, the question whether the application has been made is relevant to an issue.
(2) 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.
Note—
Section 419 provides for the time in which the lessor or tenant, or provider or resident, may apply to the tribunal for an order about a breach of the agreement.
Respectfully, the respondents’ submissions contradict the express words of section 417(2) and its example note. The significant change in rent is the dispute issue in this case. Other times, it’s about the breach of an agreement. Just as section 419 permits an application to be made to the tribunal about a breach of an agreement, section 71 permits an application to be made to the tribunal for an order about a significant change in a residential tenancy agreement. Each requires that the application is made within a certain period, therefore, whether and when the application is made is a relevant issue. Section 417(2) provides that making an application includes a making a dispute resolution request. To apply otherwise would put all parties at risk of being unjustly denied the tribunal’s jurisdiction on account of RTA dispute resolution delays beyond their control.
There is a clear case of error in the primary decision of the Tribunal because:
(a)The new agreement was signed on 20 June 2023.
(b)The tenants made their dispute resolution request on 29 June 2023.
(c)Section 417(2) of the RTRAA deems the application under section 71 to have been made on 29 June 2023.
(d)The application was filed within time, namely, within thirty days of the new agreement being signed.
Substantial injustice on account of the error
The application has not been considered on its merits and it remains unresolved as to whether the rent increase is reasonable, having regard to the matters to be considered under section 71(6).
This requires consideration of the factual evidence put forward by both parties, something the Appeal Tribunal is not able to do.
The erred dismissal of the tenants’ application has, therefore, led to substantial injustice.
Leave to appeal is granted on that basis.
Appeal
The appeal is allowed, the dismissal decision of 5 March 2024 is set aside, and the tenants’ application is returned to the minor civil dispute jurisdiction to be reheard.
0
2
2