Raymond v Doidge

Case [2012] QCAT 163
CITATION: Raymond v Doidge [2012] QCAT 163
PARTIES: Richard Raymond
(Applicant)
v
Anthony Doidge
(Respondent)
APPLICATION NUMBER: MCDT2442-11
MATTER TYPE: Residential tenancy matters
HEARING DATE: 16 January 2012
HEARD AT: Brisbane
DECISION OF: Tammy Williams, Adjudicator
Jeremy Gordon, Adjudicator
DELIVERED ON: 12 April 2012
DELIVERED AT: Brisbane
ORDERS MADE:

1.    The Applicant’s claim for rent arrears to be regarded as, and proceed as, a minor debt claim, and the procedural requirement to use Form 3 instead of Form 2 for that claim is waived.

2.    It is declared that the tenant abandoned the premises on 8 November 2011 and the residential tenancy agreement terminated on that date.

3.    The Respondent shall pay to the Applicant the sum of $8,692 to be paid in instalments at the rate of $50 per week.  If any instalment is unpaid the whole amount shall become due.

4.    Leave to either party to apply to the Tribunal to vary the instalment order.
CATCHWORDS:

Minor Civil Dispute – Residential tenancy – Breach of agreement by tenant – Rent arrears – Defect in proceedings – Claim for rent arrears regarded as a minor debt claim – Arrears time-barred – Arrears started 10 years before application made – Sporadic payments never clearing arrears – Running account of rent arrears – Arrears at hearing representing more than 6 months’ rent – Time limit for bringing application – Whether there is power to enlarge that time – Exercise of that discretion – Correct order for rent arrears

Residential Tenancies and Rooming Accommodation Act 2008, ss 70, 249, 355, 357, 359, 360, 362, 416, 417, 419, 429
Queensland Civil and Administrative Tribunal Act 2009, ss 3, 11, 13, 28, 33, 61, 241, Schedule 3

Limitation of Actions Act 1974, ss 35, 43A

Queensland Civil and Administrative Tribunal Rules 2009, r 7
Acts Interpretation Act 1954, s 38

Delahoy and Grevell v Wuiske & Wuiske [2006] QDC 276, applied
Clayton’s Case (Devayne v Noble) (1816) 1 Mer 572, applied
Beachquest Pty Ltd v Interstate Mortgage And Investments Pty Ltd & Ors [2001] QSC 512, applied
Macdav Pty Ltd v Alliswell Pty Ltd [2001] VCAT 2436, applied
Quadrascan Graphics Pty Ltd v Crosfield Electronics Anz Pty Ltd & anor [1995] FCA 1248, applied
Redondo Property Investments Pty Ltd v Bennett & Anor [2011] QCAT 282, distinguished
Ryan v Cornwall [2010] QCAT 212, not followed McLachlan v Real Tenants – Real Property Management [2011] QCAT 665 not followed Aurisch v Millsons Pty Ltd & Ors [2011] QCAT 245, followed
Reynolds v Aluma-Lite Products Pty Ltd (No 2) [2010] FCA 914, applied
Commonwealth v Mewett [1997] HCA 29, considered
Adams v Scowcroft [2012] QCATA 25 considered

APPEARANCES and REPRESENTATION (if any):

APPLICANT: In person
RESPONDENT: In person, with Christine Tolintyre (sister)

REASONS FOR DECISION

Tammy Williams

  1. The panel consisted of Adjudicator Jeremy Gordon and myself.  I have asked Jeremy Gordon to give the reasons of the Tribunal. 

Jeremy Gordon

  1. In these…

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AGLC
Raymond v Doidge [2012] QCAT 163
Case
[2012] QCAT 163
Decision Date

CaseChat Overview and Summary

The parties in this matter were the Applicant, Raymond, and the Respondent, Doidge. The dispute arose out of a residential tenancy agreement between the parties, with the Applicant claiming that the Respondent had breached the agreement by failing to pay rent. The Applicant sought a judgment for rent arrears, and the matter was heard in the Civil and Administrative Tribunal of New South Wales. The legal issues before the Tribunal were whether the claim for rent arrears should be regarded as a minor debt claim, whether the requirement to use Form 3 instead of Form 2 for that claim should be waived, and whether the time limit for bringing the application had passed. The Tribunal considered whether there was power to enlarge the time limit and whether that discretion should be exercised. The Tribunal found that the claim for rent arrears should be regarded as a minor debt claim, and the requirement to use Form 3 instead of Form 2 should be waived. The Tribunal also found that the time limit for bringing the application had passed, but that there was power to enlarge the time limit. However, the Tribunal did not exercise that discretion. Instead, the Tribunal ordered that the Respondent pay the Applicant $8,692 in instalments of $50 per week, with the whole amount becoming due if any instalment was unpaid. The Tribunal also granted leave to either party to apply to vary the instalment order. This decision highlights the importance of understanding the procedural requirements for bringing a claim and the potential consequences of failing to comply with those requirements. It also demonstrates the Tribunal's willingness to consider the circumstances of each case when determining whether to exercise its discretion to enlarge the time limit for bringing an application.

Orders

Orders of the court

1. The Applicant’s claim for rent arrears to be regarded as, and proceed as, a minor debt claim, and the procedural requirement to use Form 3 instead of Form 2 for that claim is waived.

2. It is declared that the tenant abandoned the premises on 8 November 2011 and the residential tenancy agreement terminated on that date.

3. The Respondent shall pay to the Applicant the sum of $8,692 to be paid in instalments at the rate of $50 per week. If any instalment is unpaid the whole amount shall become due.

4. Leave to either party to apply to the Tribunal to vary the instalment order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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