QCAT Update: Retaliatory Action

Property Management,  Property Managers

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]

Experience counts! Get your full real estate licence with RPL.

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.

Become an REIQ Member

REIQ Accredited Agencies are entitled to free legal advice from our partners, Carter Newell Lawyers (up to 30 minutes per issue), helping you with agency practice issues you’d usually have to take to your own lawyers. The REIQ offers several different categories of membership, each with different benefits packages and eligibility requirements. From large agencies to students just starting out, the REIQ has a membership option tailored to suit. To join, click here.

 

Enrol Today

Here’s what others have to say

Great friendly environment
David Priest
David Priest
22:47 19 Nov 19
Blake Richard
Blake Richard
01:34 05 Mar 18
I cannot recommend REIQ enough. The training, environment & staff were beyond my expectations. A special mention for Rachael who is a trainer at REIQ. Rachael knows her stuff. Her knowledge of the industry and style of delivery helped me get across the line and score my dream job.
Paul Conway
Paul Conway
05:11 15 Jan 20
Welcoming and friendly staff, always available to support their members. The Property Management Support Team is particularly helpful. Well worth the subscription fees just to have access to advice from these experienced practitioners.
Laura Valenti
Laura Valenti
21:29 16 Jun 18
Very impressed with the trainers that I have had for the past 3 days. Each individual trainer was very helpful and made sure that everyone in the class understood everything before we progressed through the modules.
Shannon Goldsworthy
Shannon Goldsworthy
04:34 23 Oct 19
Great staff that are always helpful.
Kensington Ràpoza
Kensington Ràpoza
11:20 28 Dec 19
Tina Nenadic
Tina Nenadic
12:57 02 Mar 18
Liam Hanlon
Liam Hanlon
12:06 05 Sep 17
Michelle Wright
Michelle Wright
04:07 26 Feb 18
Helpful staff. Useful networking events and training videos.
Eagle Real Estate
Eagle Real Estate
02:27 25 Jul 18
I would like to share with you our experience that we have recently had through the REIQ Professional Development Team.We have had an awesome start to 2020 thanks to the great service provided by the REIQ Professional Development Team. Congratulations to Liz who started and finished her Certificate of Registration Course with the REIQ in December 2019. She loved the training, particularly the fact the trainers are experienced and still walk the talk and are active in real estate. Fast turnaround for marking of the assessments with help on hand by way of tutoring if needed meant she could get the Application to Office of Fair Trading for her registration happening quickly. We are thrilled, from start to finish with the course and application to Fair Trading she had her Certificate of Registration within 5 weeks. Really impressed with the training, help and support team REIQ gave Liz and the quick processing time by the Office of Fair Trading.We also regularly use the Property Management Support Service and General Agency Advice Service and believe it offers great value for our membership. The PMSS team provide practical advice by practising property management professionals who can relate to the everyday challenges property managers face.Keep up the good work Team REIQ,
RE/MAX Ignite
RE/MAX Ignite
05:56 21 Jan 20
Jason Bond
Jason Bond
10:29 19 Jun 18
Had Melissa Sullivan conducting the sales registration course for the past two days I have to say I think this woman is inspiring she kept the class focused and engaged throughout the two days. I dont normally complete surveys but felt that I wanted to share that this lady has inspired me to give sales ago and I never thought i would say that as i have been a PM and honestly never thought I could see myself as a sales agent... Thanks Mel for such a great two days
Karen Riddell
Karen Riddell
07:04 03 Aug 17
I found the REIQ Real Estate Licence Online Training Course was very good, easy to access, with brilliant course materials to read and assignments that really checked on your understanding of the details of every aspect of real estate practise. I enjoyed the course even though it took a few months due to working full time and found the support of the trainers and assessors very helpful and encouraging. Thanks REIQ Training team for helping me through!
Lindy Lear
Lindy Lear
10:47 18 Oct 20
Recently I completed the Real Estate Licensing course at REIQ and was blown away by the help and support provided by Ms. Connie McKee who is a trainer at REIQ. Connie is very professional and has years of knowledge and work experience in the Real Estate Industry.I am glad I chose REIQ as my pathway into the Real Estate Industry.
Kaizan Irani
Kaizan Irani
00:23 30 May 19
I contacted REIQ, as I wanted to upgrade my real estate licence to a full licence. I have now completed the necessary upgrade and I just wanted to thank all the staff and trainers who were my guides during this time. Particular mention to Rachael Wilschefski who did everything she could to help me and was a joy to talk to, Trudi Fleet was a fantastic support to me and a big thank you to the assessing team. If anyone is considering using REIQ to get their licence or upgrade, I highly recommend using REIQ. Once again, thank you. Helen Knight
Helen Knight
Helen Knight
00:31 05 Mar 21
Proud to be a member of such a prestigious organisation. Thank You for the support 🏡
Jamie Smith
Jamie Smith
07:28 07 Mar 18
Haydn Denovan
Haydn Denovan
02:51 20 Mar 18
Adam Milton
Adam Milton
01:52 22 Nov 17
I wasnt sure that I would get through the Agents and Licence course with everything I had on, made an attempt a year ago with another provider that went totally pear shaped but the REIQ course is structured in a way that made sense. While all of their trainers are experts in their field, they offer onsite student support on Tuesdays with Rachel providing the right advice and reassurance to get you there, even if you havent studied for a while. If you've ever wanted a career in Real Estate this is where you get started!
Lynette Nitson
Lynette Nitson
01:48 13 Jan 20
Great training course was very informative. I feel I gained lots of knowledge and there is a lot of support from the REIQ team online, via phone and in person and am looking forward to starting my career in the real estate industry!
Laura Stills
Laura Stills
08:14 22 Oct 20
Katie Cotton
Katie Cotton
10:04 31 Oct 17
Gerry MacKenzie
Gerry MacKenzie
06:53 12 Oct 20
In February I decided to take steps to buy management rights to a unit complex. As I have not studied for some time I chose REIQ to do my RLA course. Initially I didn’t engage the help through student support but it came to a point I needed some assistance. Selina Randall and Connie McKee were wonderful help. I personally feel they went over and beyond to help me complete the course and enable me to follow through with final settlement of the new business in just a few weeks Thank you so very much ladies. You were both amazing
Irmy Thomas
Irmy Thomas
06:35 18 Jun 21
Jacqui McKeering
Jacqui McKeering
02:01 08 Mar 18
Good course. Materials and tools given to finish the course easily. Was no problem to finish. Support is there if needed it.
Jade Dodds
Jade Dodds
09:11 09 Oct 20
Recently completed my Licence course and thoroughly enjoyed the in-class tutorials taught by highly professional trainers with many years of industry experiences. The student support that is available every Tuesday is an extremely helpful resource, again with very experienced trainers to ensure you get the right advice the first time. REIQ has really structured the entire full Licence course end to end thoughtfully, especially when you’re new to this industry. Highly recommended!
Julian Phua
Julian Phua
07:01 02 Oct 19
Just done two days interactive training with Melissa Sullivan. Sensational! Such a great presenter and electric delivery of material. Quick paced and hands-on!Very glad to have been in this class!!! Awesome
Miles Griffiths
Miles Griffiths
07:01 26 Jun 18

YOU MAY ALSO LIKE

Subscribe