Yu Chung Wei v Yunhu Su
[2018] QCATA 69
•21 May 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Yu Chung Wei v Yunhu Su [2018] QCATA 69
PARTIES:
YU CHUNG WEI
(appellant)v YUNHU SU
(respondent)
APPLICATION NO:
APL355-17
ORIGINATING APPLICATION NO:
MCDT1746/17
MATTER TYPE:
Appeals
DELIVERED ON:
21 May 2018
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Gordon
ORDERS:
Leave to appeal is refused. The appeal therefore fails.
CATCHWORDS:
LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – JURISDICTION – where tenant claimed that resident landlord was responsible for a burglary at a residential tenancy because he had not locked the door – where the Adjudicator decided there was no jurisdiction to hear the claim – whether it is arguable that the tribunal has jurisdiction to hear such a claim – whether there is an arguable point on appeal
Residential Tenancies and Rooming Accommodation Act 2008 (Qld)
REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
The applicant was a residential tenant in the respondent’s house. There was a burglary and certain things were stolen from the tenant’s room. The tenant brought an application under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’) claiming compensation from the respondent for his loss. His claim alleged that the respondent had failed to secure the premises.
There was a hearing before an Adjudicator. The Appeal Tribunal has obtained a transcript of the hearing but for cost and copyright reasons this cannot be given to the parties.
The applicant and the respondent and their families lived in the house. The respondent had gone out shopping leaving the house empty. A burglar or more than one burglar had gained entry to the house through the sliding doors at the rear. There were two sliding doors – a glass inner door and an outer screen door.
At the hearing the applicant said that the police report showed that the locks were not damaged. Therefore, it appeared that the relevant door was not locked. Since the respondent was the last person to leave the house, this was his responsibility. The implication in what was being said was that if the respondent had locked the door then the burglary would not have happened.
The respondent told the Adjudicator that he had locked the outer door but not the inner door because it was made of glass and could easily be smashed to gain entry. Afterwards he discovered that the lock on the outer door had been damaged in the break-in, and he produced an invoice for its repair.
The applicant disputed that the lock on the outer door needed repair after the burglary.
The Adjudicator decided that she had no jurisdiction to hear the claim. As a claim under the RTRAA, it would have to be based on a contractual or statutory duty under which the landlord had responsibility for a tenant’s property, and there was no such contractual or statutory duty. And, as a claim for damages it was not within the tribunal’s jurisdiction in any other way. The Adjudicator therefore dismissed the claim.
In this appeal, the applicant was directed to identify an alleged error of fact or law made by the Adjudicator. The only error identified in the submissions made in the appeal is that the Adjudicator made the wrong decision because she misunderstood the police report. This is a reference to the Adjudicator referring in the hearing to entries in the police report stating that the burglar had gained entry into the house by cutting through the screen of the sliding screen door at the rear, and then reaching through to unlock it so it could be opened. The report confirmed that the inner glass sliding door was not closed. The Adjudicator rightly thought that the police report indicated that the outer sliding screen door had in fact been locked.
This was not however, the reason why the Adjudicator dismissed the claim. That was solely on the grounds of lack of jurisdiction.
In deciding that she had no jurisdiction to hear the claim, the Adjudicator did not consider something that had been raised by the applicant at the hearing. This was mentioned in a written statement handed up by the applicant which the Adjudicator read.[1] The applicant said in that statement that there was an inner door to his part of the premises which was in disrepair. Because of this, it could not be locked. He said that he had asked the respondent to fix this and waited over a year for this to be done but it was never done. There was short discussion about this in the hearing. The respondent said that the applicant did in fact lock the door in question. The matter was then left there.[2]
[1]Transcript 1-3, line 4.
[2]Transcript 1-4, line 28.
The question arises as to whether the disrepair of the inner door was a claim before the Adjudicator. The Adjudicator must have thought not. I think she was correct in this view. There was no mention of the disrepair to the inner door in the application itself, and at the hearing the applicant seemingly mentioned it only in passing. Instead, throughout the hearing he concentrated on the respondent’s failure to lock the sliding doors as showing that his claim should succeed.[3]
[3]Transcript 1-2, lines 23-36; 1-4, line 19, 40; 1-5, line 37; 1-10 lines 14-33.
That the applicant did not intend the disrepair claim to be decided by the Adjudicator at the hearing is also shown by the fact that there is no mention of it in this appeal. This is despite the applicant providing to the Appeal Tribunal four separate statements about the appeal.[4] None of them raise this issue. It is not being said for example, that the Adjudicator failed to deal with this claim.
[4]For completeness, any such disrepair claim would have been faced with an insurmountable difficulty because it would clearly have been out of time. The applicant said he had waited for over a year for the repair to be done after notifying the respondent about the problem. The time limit for bringing such claims is effectively 6 months from the expiry of a reasonable time for the landlord to repair, after being notified of the disrepair.[5] This time had clearly expired. Even if the claim had been before the Adjudicator and even if it had been in time, there was a difficulty that it would have been a new case mentioned for the first time at the hearing. The fact of any disrepair was in dispute because the respondent was saying that the applicant did in fact lock the door. That might have required further evidence to resolve. But also there would have been considerable difficulties in proving that the failure to repair the inner door caused any loss. This is because the applicant’s possessions would be vulnerable anyway once the burglar was inside the house, bearing in mind the house was empty.
[5]This being the date when the tenant would be aware of the breach. This time limit appears in section 419(3) of the RTRAA.
Conclusions
There is nothing which demonstrates that the Adjudicator may have been wrong about not having jurisdiction to hear the claim that was before her. The tribunal only has jurisdiction under the RTRAA to hear an application which can be made under that Act.[6] Although the RTRAA covers many types of claims, a landlord’s negligence by not leaving the premises secure is not one of them. And the claim was not another type of ‘minor civil dispute’, that is, one for a debt or liquidated demand of money, or one which arose out of a contract between a consumer and trader, or between 2 or more traders.[7]
[6]Section 12(4)(f) of the RTRAA; definition of ‘tenancy matter’ in Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).
[7]This being a ‘minor civil dispute’ as defined in Schedule 3 of the QCAT Act.
This type of appeal needs leave to appeal,[8] but, in the circumstances this is refused. The appeal therefore fails.
[8]Section 142(3)(a) of the QCAT Act.
Parts C and D of the application to appeal, statement in support of appeal, statement received on
4 December 2017 and email of 28 January 2018.
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