Blink Property Qld v Christison & Anor [2024] QCATA 61

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Blink Property Qld v Christison & Anor [2024] QCATA 61 PARTIES: BLINK PROPERTY QUEENSLAND (applicant/appellant) v THOMAS CHRISTISON (respondent) PANAMA-PEARL TYSON-BYNON (respondent) APPLICATION NO/S: APL273-23 ORIGINATING APPLICATION NO/S: MCDT17-23 Southport MATTER TYPE: Appeals DELIVERED ON: 13 June 2024 HEARING DATE: 5 June 2024 HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: Leave to appeal granted. The appeal is allowed. The decision of the Tribunal made 21 July 2023 is set aside and the proceedings remitted to the Tribunal for determination according to law before another Adjudicator. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where a lessor and tenants executed a fixed term tenancy agreement – where the lessor’s agent issued a Form 12 Notice to Leave at the time of commencement of the fixed term tenancy agreement – where some weeks afterwards the tenants gave 2 weeks’ Notice of Intention to Leave in Form 13 and left – where the rental property was not let for some period of time – where the lessor’s agent brought proceedings in the Tribunal claiming break lease charges and rent – where the Tribunal found the Form 13 Notice of Intention to Leave – limited the tenants’ liability to compensation to the period of 2 weeks set in the Form 13 Notice of Intention to Leave – where on appeal the Form 13 Notice of Intention to Leave was found -- 1 of 6 -- 2 to have ended the tenancy agreement but not limited the claim to break lease compensation by the lessor Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 277(b), s 277(c), s 420, s 421(1) Parr v Queensland Police Service [2021] QCA 216 Pickering v McArthur [2005] QCA 294 APPEARANCES & REPRESENTATION: 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 [1] The respondents were tenants of residential premises. The appellant was the lessor’s agent. [2] The lessor and the tenants had entered into a number of fixed term residential tenancy agreements concerning the premises. [3] The penultimate tenancy commenced 5 May 2022 and expired 2 November 2022. [4] Prior to that on 10 October 2022 the agent had issued a Form 12 Notice to Leave to the tenants on the grounds of end of the fixed term tenancy agreement with the vacate date set as 10 December 2022. [5] Apparently in anticipation of a further residential tenancy agreement for a fixed term being struck with the tenants, the agent had also issued at the same time another Form 12 Notice to Leave dated 10 October 2022 with an end date of 3 May 2023, the anticipated end of a future six-month fixed term tenancy. [6] According to the tenants, they received both notices on 21 October 2022 together with a new fixed term tenancy agreement commencing 3 November 2022 and ending 3 May 2023. [7] The tenants signed the new fixed term tenancy agreement however shortly thereafter decided to leave. The tenants issued a Form 13 Notice of Intention to Leave with 2 weeks’ notice expiring on 25 November 2022. [8] The tenants left and the agent claimed they found it difficult to relet the property. Eventually the lessor took the property off the market without reletting it before 3 May 2022. The agent commenced proceedings in the Tribunal claiming unpaid rent of $4,800 through to the date the property was taken off the market, $160 for advertising, $120 carpet cleaning, $99 for rubbish removal and $550 for cleaning. [9] The matter came on for hearing before an Adjudicator who effectively rejected the claim of the agent and instead awarded compensation limited to $971.42 for rent from 9 November 2022 to 25 November 2022, the end date of the tenants’ Form 13 Notice of Intention to Leave. [10] The appellants seek leave to appeal that decision. -- 2 of 6 -- 3 [11] Given this is an appeal from a decision made in the tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.1 [12] Leave to appeal will usually be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.2 [13] There is only one ground of appeal, which lacks particularity: The tenant broke the lease and should pay the break lease rent arrears up until the property was taken off the market. [14] Accepting that self-represented parties often struggle with what are the relevant legal issues for determination and find it difficult to articulate their arguments in legal terms, if one turns to the comments of the learned Adjudicator during the hearing the ground of appeal becomes somewhat clearer. The learned Adjudicator found that there was no break lease circumstance arising: ADJUDICATOR: Ms Britten, there is one further point I want to raise with you. I have my doubts that this was a break lease situation at all, and the reason I say that, and I’ll give you the opportunity to respond to this, is because section 277 of the Act says that a lease ends of (sic) a lessor: …gives the tenant a Notice to Leave under section 326 and the tenant hands over vacant possession of the premises – on or before the handover date for the notice. That’s what the subsection says. Implicitly, the lease ends on the date that the tenant hands over vacant possession if it’s on or before the handover day and the notice. The Form 12 Notice to Leave, which you gave at the start of the last tenancy, accepting that the probability is either (sic) the tenants did sign the further lease, was that they leave by the end of the fixed term, but the Notice to Leave was given at the commencement of the fixed term, and they left shortly after that.3 (Emphasis added) [15] The appellant’s ground of appeal is that the learned Adjudicator erred in finding an implicit entitlement in the respondent tenants to terminate the new fixed term tenancy agreement at any time on issue of a Form 13 Notice of Intention to Leave given a Form 12 Notice to Leave had been issued at the start of the tenancy. [16] How the issue of the Form 12 Notice to Leave issued at the start of the tenancy gave the Form 13 Notice to Leave efficacy to absolve the tenants from paying break lease fees and rent until a new tenant was introduced to the property, or rent otherwise was not claimable, is not made clear. [17] The learned Adjudicator said this in his reasons for decision concerning a Form 12 Notice to Leave sent out at the start of a fixed term residential tenancy agreement: … if a tenant for whatever reason on that Form 12 decides to leave, that the lease ends on the date that they decide to leave because they’ve been given the Notice to Leave because that’s the way section 277, subsection (b) is worded. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 [3], cited with approval in Parr v Queensland Police Service [2021] QCA 216 [7]. 3 Transcript 1-36 Line 13-27. -- 3 of 6 -- 4 It would be entirely different, Ms Britten, if the Form 12 Notice to Leave had not been given at the start of the new tenancy, but only two months prior to the end of the lease. On that basis the tenants giving a Form 13 Notice of Intention to Leave would definitely amount to a break lease, but that’s not the situation here. Your difficulty is section 277(b) that I’ve read out to you. If I find that the lease ended on the date – the vacate date referred to in their Form 13, there is no break lease, there was no advertising payable and nor any break lease fee. … If I find that the Docusign process was followed, that the signatures are not fraudulent, and that’s what I propose to do because there’s insufficient evidence to indicate otherwise, then the tenants effectively at the start of the term of the lease on 3rd November had notice in terms of the Form 12 of the 10th of October that they had to leave on or by the 3rd of May 2023. Item 6 says tenants must vacate the property by midnight on that date. By implication, they could vacate earlier. If they did by operation of 277(b), the lease would then end on the earlier date. That earlier date on their Form 13 was the 25th of November. There ended the lease. Therefore, there’s no break lease. Therefore, rent is not claimable beyond the 25th of November.4 (Emphasis added) [18] Section 277(b) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld)(‘the Act’) provides, as relevant: 277 Ending of residential tenancy agreements A residential tenancy agreement ends only in 1 of the following ways— … (b) the lessor gives the tenant a Notice to Leave under section 326 and the tenant hands over vacant possession of the premises on or after the handover day for the notice; (c) the tenant gives the lessor a Notice of Intention to Leave under section 327 and hands over vacant possession of the premises on or after the handover day for the notice …. [19] Section 277(b) states the tenancy ends on or after the handover date stated in the Notice to Leave. There is no implication reasonably found by use of these words that the tenancy agreement may, if the tenant issues a Form 13 Notice of Intention to Leave, end before the handover date stated in the lessor’s Form 12 Notice to Leave. The express words in s 277(b) seem quite clear. [20] That is not to say the tenant’s action in issuing a Form 13 Notice of Intention to Leave prior to the handover date given in the lessor’s Form 12 Notice to Leave, which was the end date of the tenancy agreement, was not effective to end the tenancy. That is precisely what s 277(c) provides for. 4 T1-38 L1-10. -- 4 of 6 -- 5 [21] But whilst a tenant may issue a Form 13 Notice of Intention to Leave before the end of an agreed fixed term, any such action by the tenant will amount to a breach of the fixed term tenancy agreement. [22] The Form 12 Notice to Leave from the lessor stated the basis upon which the Form 12 was issued, namely, end of the fixed term. [23] By s 420 of the Act: Orders about breach of agreements (1) If an application about a breach of a residential tenancy agreement or a rooming accommodation agreement is made to a tribunal, the tribunal may make any 1 or more of the following orders— … (e) an order for compensation; [24] The appellants made application to the Tribunal for compensation for the tenants’ breach of the fixed term tenancy. By s 421 of the Act: Matters to which tribunal must have regard for orders for compensation (1) Without limiting section 420(1), in making an order for compensation in favour of a lessor, a tribunal must have regard to the following— (a) rent required to be paid but not paid for the period starting when the agreement is terminated because of the tenant’s action and ending— (i) when the period fixed as the term of the tenancy ends; or (ii) if the premises are relet before the end of the period mentioned in subparagraph (i)—when the premises are relet; (b) advertising expenses incurred by the lessor for reletting the premises; (c) other expenses incurred by the lessor for work carried out by the lessor for reletting the premises; (d) whether the lessor has met the lessor’s duty under section 362 to mitigate loss or expense. [25] Section 421 makes provision for break lease compensation in circumstances where a residential tenancy agreement is terminated “because of the tenant’s action”. [26] The learned adjudicator was correct when he held the residential tenancy agreement ended because of the Form 13 Notice of Intention to Leave issued by the respondents, but he should have gone on and determined whether or not break lease compensation thereafter became payable. [27] I cannot see that the issue of a Form 12 Notice to Leave at the start of the tenancy, with the handover date nominated as the end of the fixed term, has any bearing on that. There is no reasonable implication by service of such notice that the lessor invites or has no objection to the tenant vacating any earlier than the handover date noted in the Form 12 Notice to Leave, which is the end date of the fixed term. -- 5 of 6 -- 6 [28] What the Form 12 Notice to Leave on the basis of end of fixed term accomplishes is that from the end date, the provision in s 70(2) of the Act that would otherwise apply, namely that after the end date of a fixed term the agreement continues on the same terms but as a periodic tenancy, does not apply. [29] The learned Adjudicator made an error of law. Leave to appeal must be granted and the appeal allowed. [30] The matter must be returned to the Tribunal and it is appropriate that the claim to compensation be determined in accordance with the law by another Adjudicator. -- 6 of 6 --