Southport Realtor Pty Ltd t/as Shores Realty v Rostas
[2014] QCATA 13
•28 January 2014
| CITATION: | Southport Realtor Pty Ltd t/as Shores Realty v Rostas [2014] QCATA 13 |
| PARTIES: | Southport Realtor Pty Ltd t/as Shores Realty (Applicant) |
| v | |
| Anthony Rostas (Respondent) |
| APPLICATION NUMBER: | APL440 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 28 January 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: |
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| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where notice to remedy breach – where notice to leave – where application for termination – where breach not remedied until the date for hearing – where multiple breaches – whether termination for repeated breaches appropriate – where member failed to exercise discretion Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 278, 299, 337 Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Rostas rents a luxurious four-bedroom penthouse apartment at Southport through Southport Realtor Pty Ltd t/as Shores Realty. He should pay $1,500 per week rent but he has a history of arrears. On 30 August 2013, Shores Realty issued its eighth notice to remedy breach because, once again, Mr Rostas was behind in his rent. On 7 September 2013, it issued a notice to leave. On 16 September 2013, Shores Realty applied for a termination order.
By the time of the hearing on 1 October 2013, Mr Rostas had paid his rent up to 7 October 2013. The learned Member therefore dismissed Shores Realty’s application.
Shores Realty wants to appeal that decision. It says that the learned Member did not apply s 278 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). It also says that, because Mr Rostas was continually in breach of the tenancy agreement, the learned Member should have terminated the tenancy for repeated breaches under s 299 of the Act.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The Act is explicit about the operation of s 299. If the lessor gives two notices to remedy breach of the same provision, and the tenant remedies each breach within the allowed period, the tenant commits a further breach of the same provision and this all happens within the prescribed period, then the lessor can apply for termination.
There is a common misconception in the industry about the use of this section. Eight breach notices are not more deserving of action than two. The section is designed to be a “short sharp shock” to those tenants who, like Mr Rostas, are inclined to test the lessor. If, like Shores Realty, the lessor allows the breach behaviour to continue past two breaches then the tenant may have a legitimate expectation that the lessor will conduct business this way and that the lessor will tolerate minor breaches.
The learned Member was in error when she stated that, unless rent was owing at the time of the hearing, she could not order termination. It is enough that Mr Rostas was in breach at the time of the notice to leave and at the time of the application.[5] Leave to appeal should be granted.
[5] Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 337(2)(a).
Shores Realty correctly points out that s 278 states an acceptance of rent does not operate as a waiver of a tenant’s breach. However, the tribunal need not order termination even if the lessor can establish a breach.
The tribunal can consider[6] whether the breach justifies termination. In deciding that question, it can consider:[7] the seriousness of the breach; any steps taken to remedy the breach; whether the breach was recurrent and the frequency of the recurrence; the detriment to the lessor; whether the lessor had acted reasonably; and any other issues the tribunal considers appropriate. The learned Member did not turn her mind to these matters.
[6] Ibid s 337(2)(c).
[7] Ibid s 337(3).
In deciding an appeal, the appeals tribunal can confirm the tribunal’s decision or substitute its own decision.[8] Therefore, I may exercise the discretion available to me under s 337 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). By issuing eight notices to remedy breach, without a notice to leave, Shores Realty was signalling to Mr Rostas, perhaps unintentionally, that it was not serious about enforcing the terms of the tenancy agreement. Although the amount outstanding was large, the delay in payment was short. The rent was up-to-date at the time of the hearing. There are sufficient grounds to refuse the exercise of the tribunal’s discretion to issue a termination order. The learned Member’s decision should be confirmed, albeit for different reasons. The appeal, therefore, should be dismissed.
[8] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146(c).
I note Shores Realty’s submission that Mr Rostas has not paid rent since the hearing. I cannot consider that in this application. However, Mr Rostas is now clearly on notice that Shores Realty expects the rent to be paid promptly and his failure to do so may not have such a happy outcome for him in the future.