SBT v Bernats Lewis Real Estate
[2022] QCATA 71
•3 June 2022
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION
SBT v Bernats Lewis Real Estate & Ors [2022] QCATA 71
PARTIES: SBT (applicant)
v
bernats lewis real estate, roxanne wagner and jose navas (respondents)
APPLICATION NO:
APL279-21
MATTER TYPE:
Residential tenancy matters
DELIVERED ON:
3 June 2022
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Dr J R Forbes
ORDERS:
The application for leave to appeal is dismissed
CATCHWORDS:
APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where claim for compensation by lessor – where lessor alleges damage to premises by tenant – where cross-claim by tenant alleging premises unfit for habitation – where lessor’s claim reduced – where lessor’s evidence defective for want of entry report and claim substantially reduced - where tenant’s cross claim dismissed as out of time - where tenant seeks leave to appeal dismissal of her cross claim – whether jurisdiction to hear and determine cross claim
Queensland Building and Construction Commission Act 1991 (Qld) s 77
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 61, s 143
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 419
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Baxter v NSW Clickers Association (1909) 10 CLR 114
David Grant & Co Pty Ltd v Westpac Banking Corporation & Anor (1995) 184 CLR 265Drew v Bundaberg Regional Council [2011] QCA 359
Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330
Hope v Brisbane City Council [2013] QCA 198
McGarry v Coates [2013] QCATA 32
MW v CGW (1982) 151 CLR 491
Nunn v Baker (1987) 518 So Jo 711
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369
Queensland Building Services Authority v Robuild Pty Ltd [2013] QCATA 238
Queensland Building and Construction Commission v Watkins [2014] QCA 142QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113
Thorpe v Charles Sturt City Corporation (1999) 103 LGERA 395
Wall v the Queen; Ex parte King Won (No 1) (1927) 39 CLR 245
Watkins v Queensland Building Services Authority [2013] QCAT 535Wickson v Hunter Builders Pty Ltd [2019] QCATA 154
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
Introduction
In 2020-2021 the applicant (`SBT’) was lessee of a residence at Beenleigh (`the property’) owned by the respondents Wagner and Navas and managed by estate agents Bernats Lewis Real Estate. For convenience I shall refer to the respondents collectively as `Bernats’.
The landlord-tenant relationship was not particularly amicable. In August 2021 Bernats began action against SBT, claiming $1,280[1] for neglect of and damage to the property.[2]
[1]The full amount of the rental bond.
[2]Application by Bernats for minor civil dispute (residential tenancy dispute) dated 20 August 2021 (`the original claim’).
SBT denied liability and counterclaimed $25,000[3] on this basis:
During tenancy [SBT] and her children were exposed to unsatisfactory and non-compliant living conditions. [SBT] was deceptively locked into a lease on the property ... [at] Beenleigh by the real estate [sic] who knew the condition, lack of maintenance and health exposure risks. The real estate failed to provide what they advertised, refused to fix any issues or rehouse SBT. SBT and her family were left financially burdened, at loss of assets and under duress, stress and health condition. [sic] Failed to comply with insurance company and re records.
[3]Response filed 23 September 2021.
Complaints particularised
Those complaints were elaborated by SBT in a memorandum dated 21 October 2021, from which the following excerpts are taken:
During my stay the property continued to flood, each time I expressed my concerns I was ignored by the property manager ... the flooding created great stress for me and my family often became sick ... being treated for severe asthma ... I continued to find mould covering things throughout the house ... it always smelt damp and musty, there were electrical issues, rusted bathtub ... Everything had to be replaced ... I had a material loss of approximately $15,000 ... I also had an asbestos report done ... which found exposed asbestos throughout the property ...
Hearing and orders
Claim and counterclaim were heard and decided on 20 October 2021. The adjudicator was not greatly impressed by Bernats’ claim and allowed only a small part of it. Of particular concern was the absence of a proper entry report.[4] The orders made at first instance are as follows:
1 The Residential Tenancy Authority [is to] release $200 from bond money to the lessor.
2 The remainder of the bond money is to be released to the Tenants.
[4]Transcript of hearing 20 October 2021 (`T’) page 7 lines 22, 27.
The orders as formally recorded do not expressly deal with Bernats’ counterclaim. However, in delivering judgment the adjudicator stated, in relation thereto:
[T]hese asserted breaches [by SBT] were outside the statutory time frame for bringing claims, which is six months prior to the commencement of the claim[5] ... The tribunal therefore dismisses the counter-claim[6] ... I don’t have power to extend that.
[5]T page 11 lines 7-9.
[6]T page 11 line 22.
Those remarks are a reference to section 419(3), as set out below.
Application for leave to appeal
On 22 October 2021 SBT filed an application for leave[7] to appeal. It does not contest the award of $200 to Bernats – a substantial reduction of the latter’s claim[8]. Nor does it explicitly attack the dismissal of the counterclaim under s 419. But under the heading: `Specify briefly the grounds of appeal’[9] it reads:
To investigate previous evidence and amend the time from to (March 2021 to August of 2021 to see as a matter of law SBT has until February 2022 to seek compensation from both the real estate and owner. This aligns in the 6 month time frame lawfully.
[7]As required by s 143(3) of the QCAT Act.
[8]T page 10 line 45.
[9]Heading on Form 39.
And the application for leave proceeds to ask the appeal tribunal to make these orders, including a robust expansion of the amount originally sought:
To comply with compensation request of both real estate and owner ... to the total of $83,750. Bernats Lewis $25,000 owner Roxanne $55,000. And to cover the cost of my claim, legal fee $550, reports $330, admin $350, miscellaneous $2,500.
Effectively the present application seeks a retrial of the matter, on existing or additional evidence. That is not the purpose of an application for leave, which is properly confined to a search for arguable errors of law in the primary decision.[10]
[10]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v
Bundaberg Regional Council [2011] QCA 359 at [18]; Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19].
However, it is appropriate to examine the implications of section 419 of the RTA for the present case.
The jurisdictional issue
Section 419 materially reads:
Applications about breach of agreements. (1) This section applies if any of the following claim there has been a breach of a term of a residential tenancy agreement ... (a) a lessor or tenant under a residential tenancy agreement ...
(2) The lessor or tenant ... may apply to a tribunal for an order about the breach.
(3) The application must be made within 6 months after the lessor or tenant ... becomes aware of the breach.[11]
[11]Emphasis added.
In principle section 419 resembles a provision of the building Act[12], which makes failure to contact the Building and Construction Commission before filing a building dispute a fatal error.[13]
[12]Queensland Building and Construction Commission Act 1991 (Qld) s 77.
[13]Compare Queensland Building and Construction Commission Act 1991 (Qld) s 77; Hope v Brisbane City Council [2013] QCA 198; Queensland Building Services Authority v Robuild Pty Ltd [2013] QCATA 238; Wickson v Hunter Builders Pty Ltd [2019] QCATA 154; Watkins v Queensland Building Services Authority [2013] QCAT 535, upheld by the Court of Appeal in Queensland Building and Construction Commission v Watkins [2014] QCA 142.
The counterclaim was submitted to QCAT on 23 September 2021.
When was SBT first aware?
Documents in evidence show that SBT became aware of the conditions which, in her view, amounted to a breach of her residential agreement, a considerable time before she launched her counterclaim in September 2021.
On 19 August 2021 her then solicitors wrote on her behalf:
Our client entered a General Tenancy Agreement ... commencing in or around 2018 ... [U]pon moving into the property ... she noticed the smell of mould in the back bedroom ... and that there was mould/flooding in the property ... On or around 17 February 2020 our client renewed [her] annual lease.
According to Bernats – and this undisputed – SBT’s first annual lease began on 19 February 2018, some three and a half years before she filed her counterclaim.[14]
[14]Submissions of Bernats filed 7 October 2021.
Also on 19 August 2021 SBT wrote to Bernats:
Now when I moved in [the] carpet was filthy and smell [sic] ... It took me three months to deodorise the back bedroom so it was bearable and spent the rest of the tenancy deodorising and steam cleaning regularly to make it liveable. ... The flooding issue I was given every excuse under the sun ... Both the owners and yourselves knew the property flooded before my tenancy began ...
On 14 June 2021 SBT complained[15] about `requesting the air conditioning to be serviced at every single inspection since I moved in ... they [sic] are unusable due to the mould in them.’
[15]Email SBT to Bernats 14 June 2021.
On the same date SBT added: `I’m writing in regards to the mouldy air conditioning and why it took two years for this service to be rectified’.
On 13 May 2021 SBT declared: `I am disposing of affected items. This is a result of continuous flooding and water damage ... since I moved into the property in 2018’.
In July 2020 SBT complained to the agent about a `grey water issue’.
In submissions for her appeal filed on 12 October 2021 SBT stated:
We each had one bag of clothes left after throwing everything away. Every pillow, sheet, blanket ... Mind you, this was the third time I had to throw out an entire room since March 2018.
In an open letter[16] on 14 September 2021 SBT wrote:
The day I got the keys to the property I went and opened the house and was met with an unholy smell of urine and mould. I rang the real estate ... My two youngest could not use their own bedroom for most of the tenancy ... June 2020: The real estate continues to do their inspections ... and blame me for ... the walls, odour and dishwasher.
[16]Document addressed `To whom it may concern’.
The special time limit
Manifestly SBT did not commence her action for compensation within 6 months after she became `aware of the breach’.
Therefore the Tribunal simply cannot entertain her counterclaim. Compliance with section 419(3) is an essential ingredient of her attempted cause of action, and it is missing. Regrettably, if living conditions were as SBT alleges, she simply waited too long to sue. Unfortunately this is not a situation in which patience was rewarded.
It would benefit the public, particularly unrepresented litigants, to have an accessible, up to date collection of time limits that are more demanding, and less flexible, than those in the traditional statute of limitations.[17]
[17]Compare Limitation of Actions Act 1974 (Qld) ss 10 and 13. The list should include the special limits, even in that Act, applicable to defamation cases and, actions for personal injuries: ibid ss 10AA, 11. See also the Succession Act 1981 s 41(8).
Section 419(3) is not mere rule of practice or procedure that the Tribunal is free to relax.[18] It is a mandatory requirement by which the legislature says, in effect: `If you do not do this you cannot make an application for damages or compensation. Your previous right to do vanishes when the 6 months deadline expires’. Observance of the time limit is an essential element of a valid application.[19]
[18]Distinguish s 61 of the QCAT Act.
[19]Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7; David Grant & Co Pty Ltd v Westpac Banking Corporation & Anor (1995) 184 CLR 265.
The question of jurisdiction was not raised by the parties but by the tribunal, as noted above. In any event, a court or tribunal is entitled, indeed bound, to raise a jurisdictional issue on its own initiative.[20] Courts are bound to take judicial notice of the limits of their powers. Obviously a court should not purport to make orders that it really has no lawful authority to make. It would be undesirable, and a waste of time and resources, to go through the motions of reaching a void decision[21], which an unsuccessful party would simply be free to ignore.[22] Whether a lack of jurisdiction appears immediately, or at a later stage the tribunal must `hold its hand’[23].
[20]Thorpe v Charles Sturt City Corporation (1999) 103 LGERA 395; [1999] SASC 10 at [6]; Nunn v Baker (1987) 518 So Jo 711 at 712; McGarry v Coates [2013] QCATA 32 at [6].
[21]Baxter v NSW Clickers Association (1909) 10 CLR 114 at 126 per Griffith CJ; Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 375; R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113 at 126.
[22]DMW v CGW (1982) 151 CLR 491; [1982] HCA 73 at [8].
[23]Wall v the Queen; Ex parte King Won (No 1) (1927) 39 CLR 245 at 257.
The adjudicator’s finding that SBT’s counterclaim was well out of time is, with respect, clearly correct. Consequently it is unnecessary to deal with the details of that action, or with the application for reception of additional evidence.[24] In the absence of any appellable error leave to appeal must be refused.
[24]Application for Miscellaneous Matters filed on 20 December 2021.
ORDER
The application for leave to appeal is dismissed.
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