QCAT Update: ending a tenancy agreement under the RTRA Act

In the recent decision of Symes v Kahler [2022] QCATA 35 the Queensland Civil and Administrative Tribunal, in its appellate jurisdiction (Appeal Tribunal), considered the procedures for ending a tenancy agreement under the Residential Tenancies and Rooming Accommodation Act 2014 (Qld) (RTRA Act).

Background

The Appellant was the tenant of a property in Middlemount, in central Queensland. The Respondent is the owner of the property.

The Appellant’s lease commenced in February 2019 and in February 2021, the tenancy became a periodic agreement. At this time, the rent for the property was increased from $130 per week to $250 per week.

Shortly after, the Appellant fell into rental arrears resulting in the Respondent issuing a Notice to Remedy Breach for unpaid rent and a water bill on 26 April 2021. The Appellant was required to remedy the breach by 5 May 2021.

However, on 27 April 2021, the Respondent issued a Notice to Leave without grounds, stating that the handover day was 5 May 2021.

The Appellant did not vacate the property and on 25 May 2021, the Respondent filed an application in the Queensland Civil and Administrative Tribunal (Tribunal) seeking a termination order and a warrant of possession.

At first instance, the Tribunal ordered that the tenancy be terminated on the grounds of failure to leave and a warrant of possession was issued.

The Appellant filed an application for leave to appeal to Tribunal’s decision on 13 June 2021.

The Appeal

The Appeal Tribunal refers to section 329(2)(j) of the RTRA Act, which provides that the handover day for a Notice to Leave without grounds for a periodic tenancy must not be earlier than 2 months after the notice is given.

In this instance, the handover day in the Notice to Leave issued by the Respondent was only 7 days.

The Appeal Tribunal states that the effect of the Tribunal’s order was to abbreviate the prescribed notice period under the RTRA Act. However, the Appeal Tribunal held that the timeframe under section 329(2)(j) of the RTRA Act cannot be varied under section 61 of the Queensland Civil and Administrative Act 2009.

The Appeal Tribunal referred to a similar case of Lowe v Aspley[1] where Senior Member Stilgoe stated:

The path that the agent took to proceedings in QCAT required a series of steps to be taken in order. Each stood like on in a line of dominos. If one fell it brought the others down with it”.[2]

Accordingly, the Appeal Tribunal held that the Tribunal’s decision was made without jurisdiction and should be set aside.

In circumstances, where the above ground of appeal was not raised during the initial hearing, the Appeal Tribunal also had to consider whether it was open to be taken on appeal.

The Appeal Tribunal states that “courts tend to discourage appeals raising issues not mentioned below, particularly when the new plea, if raised at the trial, could have been the subject of contrary evidence, and it is now ‘too late to deal with [the issue] …fairly’ ”.[3]

In this instance, the ground of the appeal was purely a question of law where no evidence at the initial hearing could have been of assistance.

Accordingly, the Appeal Tribunal held that in view of the defective Notice to Leave, the decision and orders of the Tribunal must be set aside.

The Appeal Tribunal added that it would be pointless to remit the matter for rehearing in circumstances where the Respondent’s initial application is “fatally infected by the invalid notice and so cannot be resurrected.[4]

The Appeal Tribunal also states that if the Respondent was to “begin afresh he would not be debarred by this decision. A case that fails for jurisdictional or procedural reasons, as distinct from a decision on the merits remains res integra”.[5]

Conclusion

While it seems a straightforward decision, it is important to highlight the delay that can result from not getting the process correct the first time. The Appeal Tribunal set aside the Tribunal’s initial decision and dismissed the original application, placing the Respondent in the same situation he was in almost 10 months earlier.

Whilst all parties involved in residential tenancy disputes before the Tribunal must represent themselves (some exceptions apply), they are of course, always able to seek legal advice regarding 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.

References:

[1] [2010] QCATA 182.

[2] Ibid [10].

[3] Park v Brothers (2002) 222 ALR 421 [47].

[4] Ibid [26].

[5] Ibid [27].

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