Templin v Heritage

[2017] QCAT 21

CITATION:

Templin v Heritage [2017] QCAT 21

PARTIES:

Michelle Templin
(Applicant)

v

Mechelle Heritage

(Respondent)

APPLICATION NUMBER:

MCDO2072-16

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Bertelsen

DELIVERED ON:

25 January 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1.   The application for default decision is refused.

2.   The application is dismissed for lack of jurisdiction.

CATCHWORDS:

Residential tenancy – rent claim – Residential Tenancies and Rooming Accommodation Act 2008 (Qld) mandatory pre-conditions to Tribunal application – effect of non-compliance

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 416(1)

Amos v Fett & Anor [2016] QCATA 120

APPEARANCES:

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

1. The applicant, Michelle Templin, claims as a debt $8,021.00 for unpaid rent in respect of a residential premises rented by the respondent, Mechelle Heritage, from her. There is no indication in her application as to the location of the rented premises, the rent payable, or any calculation of the period for which rent was payable but unpaid. Nor is there any evidence of the prerequisite dispute resolution process required pursuant to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) having been conducted, or at least attempted. The application merely references the issue of a notice to leave.

2. Where an application for unpaid rent is made in the Tribunal it is the case that the RTRA Act’s prerequisite procedures must be followed as stated in the Appeal Tribunal’s decision of Amos v Fett & Anor:[1]

   …the RTRA Act’s stipulated pre-application procedures have limited range. They only govern non-urgent disputes that a party to a residential tenancy agreement applies to the tribunal about. They do not apply to court-based proceedings or tenancy matters transferred from a court to the tribunal.

   [1][2016] QCATA 120.

3. Here the application in respect of unpaid rent arising out of a residential tenancy has been made directly to the Tribunal. Therefore, the RTRA Act’s stipulated pre-application procedures apply. Section 416(1) of the RTRA Act has the practical effect of making unsuccessful conciliation a precondition to Tribunal proceedings about a non-urgent residential tenancy issue, here being unpaid rent. There is no evidence of successful or unsuccessful conciliation.

4. In addition, the application has been incorrectly filed as a minor debt application. That defect could be cured by the Tribunal accepting the application as a minor civil dispute tenancy application. However such, would not in any event, cure the application’s fatal defect which here is lack of conciliation or attempted conciliation through the Residential Tenancies Authority.

5. In summary, if an application about a residential tenancy is brought in the first instance in the Tribunal the conciliation pre-conditions set out in the RTRA Act must be complied with. As those preconditions have neither been followed nor complied with, the application must fail in its entirety. The Tribunal has no jurisdiction to entertain the claim.

6. The Tribunal orders that firstly the application for default decision be refused. Secondly, that the application be dismissed for lack of jurisdiction.