Wheeler v Hamilton Harbour Management Pty Ltd t/as Hamilton Harbour Residences

[2013] QCAT 654

CITATION:	Wheeler v Hamilton Harbour Management Pty Ltd t/as Hamilton Harbour Residences [2013] QCAT 654
PARTIES:	Bennett Wheeler (Applicant)
v
Hamilton Harbour Management Pty Ltd t/as Hamilton Harbour Residences (Respondent)

APPLICATION NUMBER: MCDT1305-13

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Adjudicator Gordon

DELIVERED ON: 29 October 2013

DELIVERED AT: Brisbane

ORDERS MADE:	1.   Application for directions is refused.
CATCHWORDS:	Minor Civil Dispute – Section 429 Residential Tenancies And Rooming Accommodation Act

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

1. The Respondent applied to the Tribunal in an “Application for Miscellaneous Matters” dated 15 October 2013 (received in the Tribunal on 16 October 2013) for “a decision regarding” a Tribunal order made on 26 June 2013.

2. The order of 26 June 2013 required the Respondent to repair or replace the oven and the bedroom ceiling fan at the premises let to the Applicant tenant by a certain date.  The order also provided that there would be a rent reduction until these things were done. That was a final order and after it was made the file was closed.

3. The Respondent said in its application that it believed it had fulfilled the obligations in the order of 26 June 2013 and it appeared also to say that the tenant disagreed that the repairs or replacement had been done and wanted the rent reduction to continue.

4. Although the Respondent did not say in the application what decision it would like the Tribunal to make about this matter, it would appear that the Respondent was asking the Tribunal to resolve the issue between it and the tenant as to whether the order had been complied with and whether the rent reduction continues.

5. The Tribunal has no jurisdiction to decide this issue until an attempt has been made to conciliate it with the RTA.  This is because any application to the Tribunal to decide whether or not the order has been complied with and whether the rent reduction continues would be an application made under the Residential Tenancies and Rooming Accommodation Act 2008[1]  and it is therefore an “issue” about which a person cannot apply to the Tribunal unless that person has first made a dispute resolution request about the issue[2].

   [1] It would be an application made under section 429.

   [2]        As required by section 416.

6. The reason why this issue can only be dealt with by the Tribunal under the 2008 Act is that the Tribunal is unable to enforce its own orders[3].  Further, it may only alter them if they cannot be complied with or there are problems with interpreting, implementing or enforcing them[4] or to correct a mistake[5]. None of these things apply here. There is no jurisdiction conferred on the Tribunal by the QCAT Act 2009 to decide whether its orders have been complied with. It follows that the only jurisdiction to decide such a thing must arise from the 2008 Act.

   [3]Instead they must be enforced by the Magistrates Court under section 132 of the QCAT Act 2009.

   [4] By renewal under section 133 of the QCAT Act.

   [5] Under section 135 of the QCAT Act.

7. If the RTA conciliation is not effective to resolve the issue then either the Applicant or the Respondent would be able to apply to the Tribunal for the issue to be resolved.  This would need a fresh application on Form 2.