Staveley v Jagg Holdings Pty Ltd
[2014] QCATA 193
•26 May 2014
| CITATION: | Staveley v Jagg Holdings Pty Ltd [2014] QCATA 193 |
| PARTIES: | Roslynne Staveley (Applicant/Appellant) |
| v | |
| Jagg Holdings Pty Ltd t/as Harcourts Beenleigh and Ormeau (Respondent) |
| APPLICATION NUMBER: | APL553 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 26 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 16 October 2013 is set aside. 4. The proceeding is remitted to the tribunal for rehearing. 5. Roslynne Staveley may file and serve any additional documents on which she relies by 4:00pm on 9 June 2014. 6. Jagg Holdings Pty Ltd t/as Harcourts Beenleigh and Ormeau may file and serve any documents in response by 4:00pm on 23 June 2014. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where dispute arose in 2012 – where dispute referred to RTA shortly thereafter – where RTA issued NURD – where 11 months without action by either lessor or tenant – where tenancy agreement ended – where lessor application for compensation – where tenant counterclaim – whether tenant’s claim excluded by s 419(3) RTRA Act - whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 416(2), 419(3), 420(1) Pickering v McArthur [2005] QCA 294 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
On 4 July 2012, Ms Staveley moved into premises rented through Jagg Holdings Pty Ltd t/as Harcourts Beenleigh and Ormeau. Almost immediately, she encoutered problems. On 16 July 2012, she served a notice to remedy breach. Soon after, she lodged a dispute resolution request with the Residential Tenancies Authority. On 4 Septemebr 2012, the RTA issued a notice of unresolved dispute.
On 19 August 2013, Harcourts filed an application for compensation. It claimed $1,697.14 arrears of rent, $209 for carpet and pest treatment, $913 repairs and cleaning and $71.19 for water charges. The tribunal ordered Ms Staveley pay $1,309.73, of which $1,008.33 was uncontested rent arrears.
Ms Staveley wants to appeal that decision. She says the learned Adjudicator erred in not considering her counterclaim. She also says the learned Adjudicator erred in not applying the bond to the rent arrears.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3] per Keane JA.
The learned Adjudicator found that Ms Staveley’s counterclaim was made more than six months after she became aware of the breach[3] and, therefore, the tribunal had no jurisdiction to consider it[4]. In fact, Ms Staveley did take action within time. The breach occurred in July 2012 and Ms Staveley lodged a dispute resolution request within a couple of weeks. A dispute resolution request is an application for the purposes of the tribunal’s jurisdiction[5]. The learned Adjudicator was in error. He should have considered Ms Staveley’s counterclaim.
[3]Transcript page 1-35, lines 33-40.
[4]Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 419(3).
[5]Ibid s 416(2).
Because the learned Adjudicator’s error was one of law, I may return the matter to the tribunal for re-hearing. It is the appropriate course. The tribunal has discretion about the orders it may make in applications about a breach of agreement[6] and the parties should have an opportunity to speak to their submissions and evidence. In particular, the parties should have the opportunity to address the tribunal about the consequences of any delay between receipt of the notice of unresolved dispute and Ms Staveley’s application for compensation.
[6]Ibid s 420(1).
Leave to appeal should be granted and the appeal allowed. The decision of 16 October 2013 is set aside. The proceeding is remitted to the tribunal for rehearing. Ms Staveley may file and serve any additional documents on which she relies by 9 June 2014. Jagg Holdings Pty Ltd t/as Harcourts Beenleigh and Ormeau may file and serve any documents in response by 23 June 2014.
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