• 14 Sep 2020
  • 5 min read
  • By Andrew Persijn, Special Counsel, Carter Newell Lawyers

QCAT update: Retaliatory action

Notice to Leave, QCAT Ruling

In the recent decision of De Bruyne v Ray White Waterford [2020] QCATA 113, the QCAT Appeals Tribunal (the Appeals Tribunal) considered the operation of section 291 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the RTRA Act) and whether a landlord had engaged in retaliatory action.

Background

The Appellant, Brigette de Bruyne, was the tenant of a property managed by the Respondent, Ray White Waterford. On 19 July 2019, the Appellant filed an Application for minor civil dispute - residential tenancy dispute in QCAT, seeking:
  1. An order that a Notice to leave issued by the Respondent be set aside under section 291 of the RTRA Act;
  2. An order that fences and a dam on the property be repaired; and
  3. Compensation in the amount of $1,048.72.
The Appellant's application was dismissed by QCAT following a hearing on 22 August 2019.

The Appellant sought leave to appeal QCAT's decision in relation to setting aside the Notice to leave.

Appeal

The Appellant submitted that the Notice to leave without ground, which was issued by the Respondent two days after the Appellant's solicitor had sent a letter to them outlining several complaints about the property, should be set aside as retaliatory.

Section 291(3) of the RTRA Act 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.

The Appellant argued that the Notice to leave constituted retaliatory action and that the Respondent was seeking to evict her for using the property to run a business, in breach of the tenancy agreement.

The Appeals Tribunal, noting that the RTRA Act does not define 'Retaliate', looked to determine its meaning from ordinary language, with assistance from previous decisions. The Appeals Tribunal referred to observations in an earlier decision of Du Preez v Linda's Homes Pty Ltd,[1] which provides:

"Section 291(3) requires careful consideration of the particular circumstances in each case in which it is raised. If `retaliatory' is considered too broadly, almost any complaint by a tenant to an agent or landlord, or even a less than amicable exchange between them, might qualify ... It is improbable that the legislature intended that effect. Rather, the section appears to be designed to protect the tenant who has justifiably taken action ... and is then served with a Notice which is apparently responsive to the tenant's acts, but also ... unreasonable, excessive or vindictive.

In each case the decision-maker is required to consider the particular facts and circumstances which arise, and determine whether or not they can fairly be categorised as falling within the section."[2]

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Du Preez was followed by the Appeals Tribunal in Donovan v Inkster[3] and in Cook v Southern Cross Consultancy Pty Ltd (t/a Beechmont Mountain Sales).[4]

The Appeals Tribunal considered that a decision-maker should be careful to avoid establishing a causal connection on the sole basis that the initiating act preceded the allegedly retaliatory action.

The Appeals Tribunal considered the relationship between the Appellant and the Respondent, and observed that there had been complaints about the property, which were included in the letter from the Appellant's solicitor two days before the Notice to leave was issued. The Appeals Tribunal agreed with the QCAT Adjudicator that the letter "contains nothing provocative of a vindictive response. It did not threaten litigation".[5] The Appeals Tribunal held that the response to the letter by the Respondent was also "non-aggressive".

While there was a history of tension between the parties, the Appeals Tribunal stated that "a degree of unhappiness with a tenant does not ipso facto prove retaliation".[6]

The Appeals Tribunal noted that the Respondent could have issued a Notice to remedy breach to the Appellant for her alleged breach of the tenancy agreement, and a Notice to leave if the Appellant failed to remedy the breach. However, the Respondent chose to issue a Notice to leave without ground, with the Appellant to vacate the property at the end of the fixed term tenancy agreement.

The Appeals Tribunal held that the Respondent "chose the path of peace"[7]

Accordingly, the Appeals Tribunal held that the decision of the QCAT Adjudicator was entirely appropriate and the Application for leave to appeal was dismissed.

Conclusion

This appeal decision is a timely reminder for property managers to ensure that they are familiar with the RTRA Act, in particular the provisions that may lead to residential tenancy claims in QCAT.

Whilst all parties involved in residential tenancy disputes before QCAT must represent themselves (some exceptions apply), they are, of course, always able to seek legal advice in regard to all aspects of a dispute. If property managers have any concerns about a residential tenancy dispute, including compliance with the RTRA Act and any other relevant legislation, it is strongly recommended that they seek legal advice.

[1] [2010] QCATA 2.

[2] Ibid [16-18].

[3] [2015] QCATA 147.

[4] [2018] QCATA 20.

[5] [2020] QCATA 113 [23].

[6] Ibid [28].

[7] Ibid.

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