In this article we review the decision of Peter McManus Real Estate v Czuchwicki [2016] QCATA 173, which demonstrates the importance of ensuring that the correct party is named as respondent in a residential tenancy dispute in the Queensland Civil and Administrative Tribunal (QCAT).

PETER MCMANUS REAL ESTATE V CZUCHWICKI [2016] QCATA 173

On 23 February 2016, the tenant of the subject property was awarded compensation for tenancy breaches.

The real estate agent sought leave to appeal the decision on the basis that the order for compensation should have been made against the lessor, and not the agent.

In response, the tenant maintained that he was happy to enforce the order against the agent and he was “not interested in substituting the lessors for it at such a late stage.”[1]

On appeal, the agent submitted that s 206 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) does not apply in this instance as the tenant was provided with the name and address for service of the lessor, before the tenancy commenced.

Section 206 of the RTRA Act provides that:

“On or before the day the tenant starts occupying the premises, the lessor or lessor’s agent must give a written notice to the tenant stating—

• the lessor’s name and address for service; or
• if the lessor has an agent who is authorised to stand in the lessor’s place in a proceeding prescribed under a regulation (the prescribed proceeding)—the agent’s name and address for service.”

Clause 43(2) of the Form 18a General Tenancy Agreement (Form 18a) also provides that:

            “Unless a special term provides otherwise, the agent may –

(a)  stand in the lessor’s place in any application to a tribunal by the lessor or the tenant; or

(b)  do anything else the lessor may do, or is required to do, under this agreement.”

In this case, the lessor’s name was included at Item 1.1 of the Form 18a, but the address provided was the agent’s business address. Further, Items 4.1 and 4.3 had been selected in the Form 18a, providing the tenant with the option of issuing notices to either the lessor or agents.

Before the initial hearing in QCAT, neither the tenant nor the agent sought to join the lessor as a respondent to the application.

In refusing leave to appeal, the Appeal Tribunal noted that any claim the agent has against the lessor for indemnity or contribution towards the compensation awarded to the tenant, “will have to be the subject of fresh proceedings in a competent forum.”[2]

The Appeal Tribunal held that there was no error in the initial decision that needed to be corrected or “any matter of general importance or public advantage to be considered on appeal.”[3]

Further, the Appeal Tribunal removed the stay place on QCAT’s initial decision and confirmed that the agent was bound to pay the compensation to the tenant as ordered by QCAT.

CONCLUSION

While only a very brief decision, this appeal highlights the importance for agents to ensure that they consider whether a lessor needs to be joined as a respondent to a tenant’s application, before the application proceeds to hearing in QCAT.

Section 42(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that QCAT may make an order joining a person as a party to a proceeding if QCAT considers that

• the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or
• the person’s interests may be affected by the proceeding; or
• for another reason, it is desirable that the person be joined as a party to the proceeding.

Accordingly, if an agent considers that the lessor needs to be joined as a respondent to the tenant’s application, they need to apply to QCAT for an order joining the lessor as a party to the proceeding.

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 agents have any concerns about a residential tenancy dispute, including the relevant parties to the dispute and compliance with the RTRA Act, it is strongly recommended that they seek legal advice. REIQ members are also able to seek advice via the REIQ’s Property Management Support Service and/or Legal Advisory Service.

REFERENCES

[1] [2016]QCATA 173 at [3]

[2] Ibid at [14]

[3] Ibid at [13]

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