Coastlink Property Services Pty Ltd v Chapman and Anor [2023] QCAT 452

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Coastlink Property Services Pty Ltd v Chapman and Anor [2023] QCAT 452 PARTIES: COASTLINK PROPERTY SERVICES PTY LTD T/AS PRD ROBINA OB ANDREW BAILEY & SOLAMON BAILEY (applicant) v JASON CHAPMAN, ZACCARY CHAPMAN, CAITLYN HIBBENS CHAPMAN, JACOB HIBBENS CHAPMAN, TERESA TAYLOR (respondent) APPLICATION NO/S: T1002/23 MATTER TYPE: Residential tenancy matters DELIVERED ON: 28 November 2023 HEARING DATE: 22 November 2023 HEARD AT: Southport DECISION OF: Adjudicator Alan Walsh ORDERS: The Form 2 Application filed prematurely on 23 October 2023 for an order terminating the Respondents residential tenancy is dismissed. CATCHWORDS: CIVIL LAW – CIVIL TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – LANDLORD AND TENANT – TERMINATION OF RESIDENTIAL TENANCY IN QUEENSLAND – where application for termination of residential tenancy filed – where ground was failure to leave – where failure to leave a statutory cause of action – where handover day in Form 12 Notice to leave fell on a Sunday – where Applicant filed application on Monday following – whether complete cause of action had accrued – whether obligation to leave extended by operation of law to midnight on the Monday – whether application filed prematurely – whether section 293 of Residential Tenancies and Rooming Accommodation Act 2008 (Qld) prescriptive – whether section 38 of the Acts Interpretation Act 1954 (Qld) prescriptive – whether invocation of section 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) available – whether premature filing of application merely procedural Acts Interpretation Act 1954 (Qld), s 38 -- 1 of 6 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 293, s 326 Perring v Nicholson [2023] QCATA 118 APPEARANCES & REPRESENTATION: Applicant: In person - by its Director Justin Johnson Respondent: No appearance REASONS FOR DECISION [1] Residential tenancy disputes between self-representing parties in this Tribunal not infrequently raise difficult points of law and involve technicality well beyond their descriptor - minor civil disputes. Technical statutory traps tend to ambush the unwary - tenants, agents, and owners alike. The Issue [2] The crisp point for urgent adjudication is whether the statutory cause of action on which the Applicant relies, that is – the Respondent tenants’ failure to leave as required by Form 12 Notice, had arisen before the date on which it filed its’ Form 2 Application on Monday the 23rd of October 2023 for termination of the Respondents’ tenancy, or whether the Application was premature because a complete cause of action was then not yet available. The Hearings [3] The Respondents did not attend either of two hearings eight days apart. I adjourned the first hearing on 14 November 2023 for two reasons. Firstly, because the issue I identified apparently took the Applicant by surprise and its director Mr Johnson wanted the opportunity to obtain legal advice and file written submissions. Secondly, because one of the Respondents sought an adjournment due to ill health and inability to attend the hearing. I refused his request for a further adjournment of the second hearing. The Application [4] In its Form 2 Application, Coastline seeks an order terminating a tenancy at Burleigh Waters on ground of failure to leave, the Applicant relying on an expired, unremedied Form 11 Notice to remedy rent breach and a Form 12 Notice to leave subsequently issued consequently. The validity of each notice is undisputed and the tenants’ rent arrears, as of the second hearing on 22 November 2023, is a very substantial $12,450.00. The rent payable under the general tenancy agreement is $1,500.00 per week. [5] The owner is financial difficulty as a result and has a mortgage to pay. However, his excessive hardship is not a ground relied on for termination. -- 2 of 6 -- 3 The Trap [6] The issue arises because Coastline on behalf of the property owner, Mr Bailey, issued the Form 12 requiring that the tenants leave on or by midnight on Sunday, the 22 nd of October 2023 on more than 7 days’ notice. The tenants did not leave. So, the agent promptly filed the Application on the Monday. [7] Doing so would have been unobjectionable, had the Form 12 expired at midnight on Friday 20 October 2023, as it might have, giving the tenants the 7 days absolute minimum period of notice to leave required. I accept that the agent was well intentioned as explained at the second hearing in giving extra time for an orderly exit over the weekend. [8] Therein lay a technical trap. Law [9] The law that applies in this factual circumstance is best summarised for present purposes by reference to a recent decision of Member Lember in the Appeal Tribunal case of Perring v Nicholson [2023] QCATA 118 (Perring). [10] In Perring, an application for a tenancy termination order relied on a Form 12 Notice to leave where the handover day (or expiry date) fell on a Saturday. The Notice required the tenant Perring leave by midnight on that day, but she did not leave at all. The Form 12 Notice to leave was given without ground, then permissible prior to legislative amendment. [11] In the present (Coastline) case the Notice was given for failure to remedy a rent breach. However, nothing turns on the distinction. The common denominator between the two cases is that the handover date fell on a weekend and that the tenant (in each case) was required to leave on or by that date. As in the present case, the issue in Perring was whether the application for termination filed on the Monday was filed prematurely and whether section 61 of the QCAT Act relating to extension or abridgment of time could be invoked to rescue a hapless applicant. [12] At first instance, an Adjudicator in Perring had terminated the tenancy and did so because Ms Perring said that she intended to leave but just needed more time in looking for a tenancy elsewhere. In an about face, doubtless on advice subsequently received, Ms Perring then filed an application for leave to appeal. Member Lember, correctly in my respectful opinion, upheld the appeal and set aside the Adjudicator’s termination order. [13] In comprehensive reasons, the learned Member reviewed the legislative framework, that is – the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the RTRAA), the Acts Interpretation Act 1954 (Qld) (the AIA), the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act), and Tribunal and other cases in point, at paragraphs [12] to [18] of the decision which I incorporate here by reference. Findings [14] Stepping through statutory prerequisites, I find as follows. (a) Section 293(1)(a) and (b) of the RTRAA provides that a lessor may apply to the Tribunal for a termination order because a tenant has failed to hand over possession of premises on the handover day stated in a notice to leave given but -- 3 of 6 -- 4 subsection (2) says the application must be made within 2 weeks after (my emphasis) the handover day. (b) As with all tenancy termination applications in the event of failure to leave, strict compliance by the lessor (or agent) with the temporal requirements of section 293(2) of the RTRAA is critical. (c) The lessor’s statutory cause of action (failure to leave) only becomes complete on the day after the handover day in the event the tenant stays on.1 A residential tenancy meanwhile continues on, unless or until it is terminated by operation of law or order of the Tribunal. (d) Applying section 38(1)(a) and (b) of the AIA, the day of giving a statutory Notice (a Form 11 or 12 Notice under the RTRAA in the present case) must be excluded in calculating whether at least the correct (minimum) period of notice has been given but the day on which the purpose is to be fulfilled is included in counting. (e) The period of notice in each of the Forms 11 and 12 Notices given to the tenants in the present case was more than the minimum of 7 days required by the RTRAA and they were validly given. (f) Where the time, or last day of a period, calculated forwards that is provided for or allowed by an Act (in this case – the RTRAA) for doing anything (in this case - the handover day in a Form 12 Notice to leave) falls on an excluded day, that is - a Saturday, a Sunday, or a public holiday having regard to the definition of excluded day in section 38(5), section 38(2) of the AIA provides that the time, or last day, is taken to fall on the next day later that is not an excluded day. (g) Unfortunately for users of the Form 12, there is no note or warning to that effect. There should be, in my respectful opinion. (h) The handover day in the Form 12 Notice to leave in the present case was Sunday the 22nd of October 2023, therefore by operation of law (section 38(2) of the AIA) the handover day was Monday the 23rd of October 2023. (i) The Applicant is bound by the terms of the Form 12 Notice to leave that it in fact gave. (j) It cannot approbate and reprobate by now saying that it only had to give the minimum 7 days’ notice to Friday the 20th of October 2023 and that the tenants should have left on or by midnight of that day. That is not what the Form stated. (k) The Form 2 Application to terminate the tenancy was filed prematurely on 23 October 2023 because the tenants had until midnight on that day to leave. (l) The statutory cause of action having not yet arisen, the Applicant was inadvertently caught in a statutory ambush of its own making. The earliest it could commence proceedings was on Tuesday 24 October, and in any event at latest within 2 weeks after the handover date. (m) The Application for termination of the Respondents’ tenancy is therefore terminal, it must be dismissed. 1 See the cases referred to in footnote 5 to paragraph [20] in Perring v Nicholson [2023] QCATA 118. -- 4 of 6 -- 5 Applicant’s submissions [15] Written submissions by solicitors instructed by Mr Bailey run to nine pages which I have read but I will only address them summarily. [16] Insofar as the solicitors contend that the application was not filed prematurely, I disagree for the reasons already stated and for the following reasons. [17] Insofar as any of the cases to which the solicitors refer may be considered authority to the contrary, the decision in Perring is to be preferred because it correctly states the law as applied to the facts in that case and by analogy applies in the present case. [18] Insofar as it is submitted that section 38(2) of the AIA only applies to the last day of the minimum statutory period required for a valid Form 11 or Form 12, that is not correct because a period longer than the minimum period is permitted in section 326(3) of the RTRAA which only says that the handover day must not be before (my emphasis) the end of the minimum notice period. [19] As a matter of statutory interpretation and by corollary, a longer period is allowed, as often occurs in practice. [20] Insofar as Mr Bailey’s solicitors invoke section 61 of the QCAT Act in an attempt to rescue the Applicant from its predicament, the Tribunal’s discretion to grant relief from procedural requirements and to extend or shorten time limits fixed by an enabling Act (the RTRAA) is in my opinion not available because: (a) section 293 of the RTRAA is prescriptive. (b) section 38 of the AIA, in the absence of clear language to the contrary in the RTRAA, is prescriptive. (c) there is no clear language to the contrary of the prescriptive requirements of section 293 of the RTRAA. (d) the existence of a complete cause of action on the day of filing an application for termination of a residential tenancy is substantive, that is - essential, not procedural, and is therefore not susceptible to the exercise of any of the powers referred to in section 61 of the QCAT Act including the power of waiver of a statutory obligation or requirement. [21] The submission that there was no impediment to the tenants vacating by midnight on Sunday 22nd of October 2023 is irrelevant because their right to continued occupation as tenants continued to midnight on Monday 23rd October 2023 – the deemed deadline for leaving and returning vacant possession of the property to the agent applying section 38(2) of the AIA. [22] It is the right, not the absence of impediment, that is relevant. [23] For completeness though not raised in submissions, it has not been suggested that there was a defect in the Form 12 susceptible of condonation. The Form 12 was not defective in any way. Disposal [24] The Application for termination of the Respondent’s residential tenancy must be dismissed on the facts, applying the law and in the circumstances to which I have referred. -- 5 of 6 -- 6 [25] Unfortunately for the owner, this is the second time the Applicant has been unsuccessful on a technicality in applying for termination. On the first occasion, the application was dismissed because the application was filed more than two weeks after expiry of a previous Form 12. [26] This dismissal does not however preclude the Applicant from again applying once it has an accrued cause of action for termination of the tenancy and has met all of the antecedent statutory requirements in what is a very technical set of legislation. -- 6 of 6 --