Te Nahu v Allen
[2016] QCAT 460
•8 April 2016
| CITATION: | Te Nahu v Allen [2016] QCAT 460 |
| PARTIES: | Sonya-Lee Te Nahu (Applicant) |
| v | |
| David Allen Debbie Allen (Respondents) |
| APPLICATION NUMBER: | MCDT462-16 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 5 April 2016 |
| HEARD AT: | Southport |
| DECISION OF: | Adjudicator Mewing |
| DELIVERED ON: | 8 April 2016 |
| DELIVERED AT: | Southport |
ORDERS MADE: | 1. The Application to set aside the notice to leave issued on 9 March 2016 is dismissed. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – Where notice to leave without grounds was given to tenant – where notice to leave was issued directly after a previous notice was found to be invalid – where tenant took action to enforce rights before notice to leave was given – whether notice to leave was retaliatory Residential Tenancies and Rooming Accommodation Act (Qld) 2009 ss 291, 292 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Sonya-Lee Te Nahu |
| RESPONDENT: | David Allen |
REASONS FOR DECISION
Background
Sonya-Lee Te Nahu and her six children live in a house owned by David and Debbie Allen pursuant to a periodic lease. Ms Te Nahu is the former de facto partner of Mr and Mrs Allen’s son, Bradley. Bradley vacated the premises at some time in 2015, but prior to that he shared the house with Ms Te Nahu and their children for approximately nine years.
On 1 December 2015 Mr Allen issued Ms Te Nahu with a Form 12 Notice to Leave Without Grounds (‘the First Form 12’), asking her to vacate the premises by 1 February 2016. When Ms Te Nahu didn’t leave, Mr Allen applied to the Tribunal for an Order for failure to leave, which was successfully defended by Ms Te Nahu on the basis that the First Form 12 was invalid because it gave her less than two months to leave in contravention of s 329(2)(j) of the Residential Tenancies and Rooming AccommodationAct (Qld) 2008 (‘RTRA Act’).[1]
[1] Claim MCDT252/16 heard at Southport on 8 March 2016.
Between 3 December 2015 and 2 March 2016, Ms Te Nahu issued two Form 11 Notices to Remedy Breach to the Allens seeking repairs, made a dispute resolution request to the Residential Tenancies Authority, and applied to QCAT to compel Mr and Mrs Allen to make repairs.[2]
[2] Claim MCDT301/16 heard at Southport on 8 March 2016.
On 9 March 2016—the day after Mr Allen’s application about the First Form 12 was dismissed—Mr and Mrs Allen issued another Form 12 Notice to Leave without Grounds seeking vacant possession by 16 May 2016 (‘the Second Form 12’).
Ms Te Nahu now applies to have the Second Form 12 set aside because she says it was given to her in retaliation for asserting her rights.
Basis of Application to Set Aside the Second Form 12
In written and oral submissions to the Tribunal Ms Te Nahu claims that the Second Form 12 was given in retaliation for her asking for repairs to be carried out on the house.[3] She relies on s 291(3) of the RTRA Act, which provides that a lessor may not give a notice to leave without ground if the giving of the notice constitutes taking retaliatory action against the tenant.
[3]Orders were made in claim MCDT301/16 between Ms Te Nahu and the Allens compelling the Allens to attend to repairs of specific dilapidated areas of the house, but it is acknowledged by the parties that the house is generally in poor repair.
Section 292(2) of the RTRA Act allows a tenant to apply to QCAT for an order to set aside a notice to leave without ground if the tenant reasonably believes the notice was given because the lessor has contravened s 291(2) or (3).
What constitutes ‘retaliatory action’ was explained by His Honour Justice Wilson, a former President of QCAT, in these terms:
[16] `Section 291(3) requires careful consideration of the particular circumstances of each case in which it is raised. If ‘retaliatory’ is construed too broadly, almost any complaint by a tenant to an agent or landlord, or even a less than amicable exchange between them, might qualify in the sense that if the owner or its agent then gives a notice to leave the notice may be categorised as retaliatory. It is improbable the legislature intended that effect.
[17] Rather, the section appears to be designed to protect the tenant who has justifiably taken action of the kind set out in s 291(2) …. and has then been served with a Notice which is apparently responsive to the tenant’s acts but also, in the prevailing circumstances, unreasonable, excessive or vindictive.
………
[20] Section 291(2) provides guidance about the nature of the conduct which is likely to qualify as retaliatory under s 291(3). It will usually involve conduct on the part of the tenant to assert rights, to which a subsequent notice to leave has some obvious connection.[4]
[Words in bold are my emphasis.]
[4] Du Preez v Linda’s Homes Pty Ltd [2010] QCATA 2.
Applying His Honour’s reasoning, Ms Te Nahu must show that she took action under s 291(2) after which the Allens issued the Second Form 12 in response to that action, in circumstances that were unreasonable, excessive or vindictive. There must also be some obvious connection between the action and the Form 12.
Was the Second Form 12 Retaliatory?
This matter is complicated by the fact that two Forms 12 were issued by the Allens. While Ms Te Nahu had complained to Mr Allen about repairs in text messages, she had taken none of the steps noted in s 291(2) before receiving the First Form 12. She had undoubtedly taken steps to enforce her rights by the time she received the Second Form 12. The question is whether the Second Form 12 was, in the words of Justice Wilson, “apparently responsive”, “unreasonable, excessive or vindictive”, and had “some obvious connection” to Ms Te Nahu’s actions.
If a landlord does not wish for a tenant to remain in occupation it does not necessarily point to the conclusion that a notice to leave is retaliatory in the sense intended by s 292(3).[5]
[5] Ibid, at para [19].
Mr Allen says he issued the Second Form 12 on 9 March 2016 only because the First Form 12 was ruled invalid by QCAT on 8 March. He says he and Mrs Allen had resolved in September 2015 to sell the house as it had become a burden they could no longer afford. They needed vacant possession to do it up for sale, but didn’t want Ms Te Nahu to have to find a new house right before Christmas, so waited until 1 December to issue the First Form 12. Mr Allen says he is now in financial distress and needs to sell the house soon to avoid losing his own home. He denies Ms Te Nahu’s suggestion that he was motivated by Ms Te Nahu’s repair requests or [redacted].
I am persuaded by the oral testimony of Mr Allen that the Second Form 12 was issued only because the First Form 12 was invalid. I find that any action taken by Ms Te Nahu of the kind listed in s 291(2) was taken after her receipt of the First Form 12 and the Second Form 12 was not issued in response to that action nor obviously connected to it. I also find that the Allens’ intention to bring an end to the periodic lease was motivated by financial need to sell the premises and not by retaliation for Ms Te Nahu’s Forms 11, dispute resolution requests or QCAT application.
The application to set aside the notice to leave issued on 9 March 2016 requiring vacant possession by 16 May 2016 is dismissed.
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