Trimble v Babet

[2013] QCATA 81

CITATION: Trimble v Babet [2013] QCATA 081

PARTIES:	Margaret Trimble (Applicant/Appellant)
v
John Babet (Respondent)

APPLICATION NUMBER: APL279-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 11 March 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.     Leave to appeal granted.

2.     Appeal allowed.

3.     The Tribunal’s decision of 23 July 2012 ordering Margaret Trimble pay compensation to John Babet fixed in the sum of $25 per week, a total of $800, is set aside.

4.     John Babet must file a Dispute Resolution Request with the Residential Tenancies Authority before applying to the Tribunal for a rent decrease.  

CATCHWORDS:

APPEALS – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY –- where the respondent entered into a tenancy agreement with the applicant – where there was existing water damage to cupboards and drawers in the kitchen – where the water damage was not rectified for 32 weeks – where the Magistrate ordered the applicant pay the respondent $800 for rent reduction – where the applicant seeks leave to appeal that decision on the grounds the Magistrate erred in law – where the claim was filed as an urgent application – where the applicant also sought compensation which was not a type of urgent application – whether the Tribunal when dealing with ‘urgent applications’ under the Residential Tenancies and Rooming Accommodation Act 2008 can also determine non-urgent claims – where leave to appeal granted

Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277, applied

Cachia v Grech [2009] NSWCA 232, cited
Campbell v Donker [2013] QCATA 6, applied
Glenwood Property Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, cited
Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited

Queensland Civil and Administrative Tribunal Act 2009, s 32, s 142
Residential Tenancies and Rooming Accommodation Act 2008, s 70, s 94, s 292, s 311, s 402, s 415, s 416, s 419

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 (‘QCAT Act’).

REASONS FOR DECISION

Background

[1]John Babet entered into a General Tenancy Agreement with Margaret Trimble on 6 April 2011. Godwin Witten Realty (‘the agent’) was the managing agent for the property.

[2]The Entry Condition Report, dated 5 April 2011, shows the cupboards and drawers in the kitchen as ‘clean’, ‘undamaged’ and ‘working’. However, the report includes comments by the agent which state:

CHIPS TO DRAWERS & BASE OF CUPBOARDS SWELLING AND LIFTING & SHELF UNDER SINK IS WATER DAMAGED & CHIPBOARD IS CHIPPED, 2 CUPBOARD DOORS NEED REPLACING – WATER DAMAGED

[3]The report also shows John Babet’s request of Mrs Trimble to ‘replace [the] damaged parts’.

[4]Mr Babet claims the water damage in the kitchen caused mould to grow and the property to smell.[1] These facts are disputed by the agent.

[1]        Transcript of Proceedings (Queensland Civil and Administrative Tribunal, APL279-12, Magistrate Pinder, 23 July 2012) 2.

[5]The General Tenancy Agreement ended on 4 October 2011 and continued on the basis Mr Babet was holding over under a periodic agreement.[2] Notwithstanding Mr Babet bringing the unrectified damage to the attention of the agent on a number of occasions during the course of the tenancy, the cupboards and drawers were only replaced in early January 2012.

[2]        Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 70(2)(b) (‘RTRA Act’).

[6]The agent claims the 32 week delay was because ‘Cyclone Yasi happened in February… [and] [t]rying to get tradesmen… was particularly hard.’[3] 

[3]        Transcript of Proceedings (Queensland Civil and Administrative Tribunal, APL279-12, Magistrate Pinder, 23 July 2012) 5.

[7]A Notice to Leave, dated 1 June 2012, was served on Mr Babet requiring vacant possession of the premises on or before 5:00 pm on 6 August 2012 (‘the handover expiry’).

Application for minor civil dispute

[8]On 28 June 2012, Mr Babet began proceedings in the Minor Civil Dispute jurisdiction of the Queensland Civil and Administrative Tribunal (‘the Tribunal’) seeking compensation for a reduction in rent due to defects in the property; compensation for removal expenses and inconvenience for a retaliatory eviction; and, an order extending the handover expiry specified in the Notice to Leave.

[9]On 23 July 2012, the matter was heard and decided by a Magistrate sitting as a Tribunal member. The learned Magistrate ordered Mrs Trimble pay Mr Babet compensation fixed in the sum of $25 per week over 32 weeks, a total of $800 for ‘a reduction in rent’ due to defects in the property. The learned Magistrate held that the Notice to Leave was not retaliatory and simply a wish by Mrs Trimble to ‘re-take possession with a view to completely refurbishing the unit as is [her] entitlement.’[4] As such, the application for compensation, on that basis, and the extension of time beyond the handover expiry was dismissed.

[4]        Ibid 6.

Appeal

[10]Mrs Trimble seeks leave to appeal the compensation order. Leave is necessary under s 142(3)(a)(i) of the QCAT Act.

[11]In the grounds of appeal, the agent, on behalf of Mrs Trimble, submitted ‘the Tribunal made an error of law’. First, the agent claims Mr Babet’s application did not qualify as an ‘urgent application’ and should have been dismissed until the parties participated in the conciliation process pursuant to s 416 of the RTRA Act. Secondly, the agent submits the Tribunal had no jurisdiction to make a compensation order because the application was not made within 6 months of Mr Babet becoming aware of the water damage.

[12]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?[5] Is there a reasonable prospect that the applicant will obtain substantive relief?[6] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[7] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[8]

[5]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[6]        Cachia v Grech [2009] NSWCA 232, 2.

[7]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[8]        Glenwood Property Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 580.

[13]It is unnecessary to consider the second ground because, for reasons which follow, I am persuaded that the first must succeed.

[14]The claim was filed as an ‘urgent application’[9] for a termination order for damage or injury under s 311 of the RTRA Act and various amounts of compensation. In my view, the application mistakes the real nature of the claim.

[9] A term that has a particular meaning under s 415 of the RTRA Act.

[15]Based on what Mr Babet was seeking from the Tribunal, I believe he mistook the meaning of ‘termination – damage or injury (s296, 311,312,322)’ as it appears on Form 2 (‘Application for minor civil dispute – residential tenancy dispute’). His claim ought to have been filed pursuant to s 292 (i.e. application about notice to leave without ground). The difficulty with that approach is that s 292 is not a provision that authorises the payment of compensation or an order to amend the notice. Section 292 only permits the Tribunal to make an order to set aside the Notice to Leave.

[16]Another difficulty with Mr Babet’s application was that he was also seeking compensation for ‘having to endure mould and smells’ for 32 weeks.

[17]The RTRA Act provides for two ways in which a tenant can obtain relief if the premises fall into disrepair and the lessor does not take steps to remedy the situation. First, the tenant may apply for a decrease in the rent to be paid pursuant to s 94. Secondly, the tenant may make a claim for compensation for breach of the residential tenancy agreement under s 419. Both are separate and distinct causes of action open to the tenant.[10]

[10]        Campbell v Donker [2013] QCATA 6 at [18].

[18]At the hearing, compensation was ordered ‘by way of reduction of rent’[11] purportedly under s 94 of the RTRA Act. It is unnecessary, however, for this Appeals Tribunal to decide whether the water damage and the resulting smell and mould caused the amenity or standard of the premises to decrease substantially.[12]

[11]        Transcript of Proceedings (Queensland Civil and Administrative Tribunal, APL279-12, Magistrate Pinder, 23 July 2012) 6.

[12] RTRA s 94(2)(b).

[19]The fact Mr Babet brought his application under s 311, which was irrelevant to his claim, does not by itself demonstrate a want of jurisdiction by the Magistrate from hearing and deciding the matter.

[20]Chapter 6 of the RTRA Act, in which s 415 appears, allows for certain kinds of applications to brought to the Tribunal as urgent applications. They include an application to the Tribunal about notice to leave without ground. They do not, however, include applications for rent reduction (s 94), which must first be submitted to a conciliation process provided by the Residential Tenancies Authority,[13] a body created under the RTRA Act.

[13] Ibid s 416.

[21]The question for this Appeals Tribunal is whether the Tribunal, when dealing with an urgent application, can also determine non-urgent claims which have not undergone the conciliation process.

[22]The RTRA Act clearly distinguishes between an urgent application and other applications. Unless an application qualifies as urgent, the applicant can only apply to the Tribunal if it has first made a dispute resolution request in the manner set out in s 402 of the RTRA Act. That is apparent from the clear prohibition against an application to the Tribunal unless that request has been made. Section 416(1) of the RTRA Act provides that the lessor or tenant ‘may apply under this Act to a tribunal about an issue only if the applicant has first made a dispute resolution request about the issue’. 

[23]The RTRA Act clearly prescribes the procedures to be followed for non-urgent application. As such, the non-urgent elements of an urgent application can not be heard and determined until s 416 of the RTRA Act has been complied with.[14]

[14]        Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277 at [32].

[24]It follows that the learned Magistrate did not have jurisdiction to hear and determine Mr Babet’s application for compensation by way of a rent reduction. However, he did have jurisdiction to hear the urgent element of Mr Babet’s claim (i.e. the application about notice to leave without ground) and was correct to dismiss the application for an extension of the handover expiry for the reasons he gave at the hearing.

[25]I appreciate the inconvenience caused by s 416(1) where the parties are obliged are submit to two separate hearings in circumstances where commonsense and practicality might suggest that one should be necessary. The RTRA Act is, however, intended to be prescriptive in governing the procedure for determination of disputes arising under residential tenancies. An enabling Act and its provisions and procedures will, if different from those to be applied by the Tribunal under the QCAT Act, prevail.[15] Therefore, Mr Babet must comply with s 416(1) of the RTRA Act and file a Dispute Resolution Request with the Residential Tenancies Authority before applying to the Tribunal for a rent decrease (s 94) or compensation order (s 420). During the conciliation process I would urge Mr Babet to carefully consider which cause of action he wishes to proceed under and whether any limitation periods[16] apply that would bar such an application to be heard and determined by the Tribunal.

[15] QCAT Act s 28.

[16]        See e.g. Campbell v Donker [2013] QCATA 6.

ORDERS

1. Leave to appeal granted.
2. Appeal allowed.
3. The Tribunal’s decision of 23 July 2012 ordering Margaret Trimble pay compensation to John Babet fixed in the sum of $25 per week, a total of $800, is set aside.
4. John Babet must file a Dispute Resolution Request with the Residential Tenancies Authority before applying to the Tribunal for a rent decrease.