Essam & Miles v Elvin [2023] QCATA 128

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Essam & Miles v Elvin [2023] QCATA 128 PARTIES: KARLEY ESSAM JOZEPH MILES (applicants) v GRAHAM ELVIN (respondent) APPLICATION NO/S: APL224-23 ORIGINATING APPLICATION NO/S: MCDT156/23 (Townsville) MATTER TYPE: Appeals DELIVERED ON: 23 October 2023 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Hon Peter Murphy SC, Judicial Member ORDERS: The applicants are granted leave to appeal. The appeal is allowed. The order for adjournment made by the Tribunal on 20 June 2023 is set aside. The order for termination of the residential tenancy and the order issuing a warrant of possession made by the Tribunal on 14 July 2023 is each set aside. In substitution for the orders set aside, order that the application for a termination order filed by Mr Elvin on 8 June 2023 be struck out. CATCHWORDS: LANDLORD AND TENANT – TERMINATION OF THE TENANCY – BY NOTICE TO QUIT – VALIDITY – WHAT NOTICE REQUIRED – LENGTH OF NOTICE REQUIRED – where the lessees of residential premises appeal the decision of the Tribunal to issue a termination order and warrant of possession pursuant to a Form 12 notice to leave under the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA) – where the lessor initially filed the forms outside of the prescribed time but was granted an adjournment by the Tribunal to file a “new” Form 12 within the same proceedings – whether the Tribunal had the jurisdiction to waive the procedural -- 1 of 8 -- 2 deficiencies – whether the Tribunal had the jurisdiction to make the orders, including the adjournment, absent fresh proceedings LANDLORD AND TENANT – TERMINATION OF THE TENANCY – BY NOTICE TO QUIT – GENERALLY – where the Tribunal at first instance indicated that a Form 12 filed in accordance with the RTRA cannot be resisted – where the lessees were not given the opportunity to present any case resisting the termination order – whether procedural fairness was accorded or an error of law occurred – whether s 337(3) of the RTRA requires the consideration of matters in the exercise of the discretion to make the order Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 7 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 280, s 281, s 293, s 337 Lowe v Aspley [2010] QCATA 59, applied 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] On 14 July 2023, a Magistrate sitting as the Tribunal at Townsville made an order terminating a residential tenancy agreement between Mr Elvin as lessor and Mr Miles and Ms Essam as tenants. [2] The order specified the ground for termination as “failure to leave”. A warrant of possession was issued the same day, to be executed as soon as reasonably practicable. The warrant expired on 6 August 2023. [3] Ms Essam seeks leave to appeal those orders. If the application and appeal are successful, she seeks orders that “… the lease agreement be reinstated”; “the termination of lease agreement be revoked”; and “warrant of possession to be revoked”. [4] The “grounds” accompanying Ms Essam’s application are in the nature of a submission. They raise on their face substantive issues relating to compliance with the mandatory legislative requirements of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“the RTRA”) which govern the proceedings for termination of the lease. [5] On 3 August 2023, Member Lember made directions in the application for leave to appeal. The directions related to what the Member described as a “preliminary matter” directed to the issue of whether the judgment appealed from “was regularly entered”. [6] In the order for directions, the Member helpfully sets out for all three self-represented parties the elements central to that preliminary matter: -- 2 of 8 -- 3 i. A termination application based on s 293 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) can be made if a Form 12 Notice to Leave is validly served. ii. The application must be filed within 2 weeks of the handover date in the Form 12 and if it is late, the application must be struck out (section 293(2)). iii. There is no power to extend this time (Edenborough v Mt Isa Properties and Auctioneers [2011] QCATA 231; Symes v Kahler [2022] QCATA 35, [13]). iv. An application is not filed until it is recorded and stamped by the Tribunal, which occurs after delivery. See Pearce v Rummery [2022] QCATA 16, citing rule 13(1) QCAT Rules. v. The Form 12 Notice to Leave issued by Mr Elvin provided for a handover date of 19 May 2023. His application was filed on 8 June 2023. The application appears to have been filed out of time. [7] Directions were then made requiring the parties to file submissions directed to that preliminary matter and “the orders the Appeal Tribunal proposed to make”. [8] Each has done so, noting that Ms Essam contends that she submits on behalf of herself and Mr Miles. How Do The Orders Arise? [9] Mr Elvin asserts that he issued a Form 11 Notice to Remedy Breach1 to Mr Miles and Ms Essam on 18 February 2023.2 A Form 12 Notice to Leave referenced to that Form 11 reveals on its face that it was issued on 15 April 2023 and required the premises to be vacated by 22 April 2023. [10] If that Form 12 was to validly found an application for termination of the tenancy, an application to the Tribunal needed to be filed by 6 May 2023.3 It was not.4 [11] Mr Elvin issued a further Form 12 on 12 May 2023 requiring the premises to be handed over by 19 May 2023. He subsequently filed an application based on that Form 12 in the Tribunal at Townsville on 8 June 2023. That application, too, was out of time (with consequences shortly to be discussed). [12] The application based upon the Form 11 and Form 12 just referred to came on for hearing before the Tribunal on 20 June 2023. The application was not struck out. [13] Rather, the Tribunal permitted a “new” Form 12 to be issued. In his written submissions filed in this appeal on 27 July 2023, Mr Elvin says the “new” Notice to Leave was issued by him “at the request of the court” on that day. 1 A Notice to Remedy Breach – s 280(1)(a) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“the RTRA”). Mr Elvin’s submissions erroneously refer to the Form 11 as a “Notice of Breach”. 2 Annexure to written submissions dated 27 July 2023. 3 Section 293 of the RTRA. 4 Accordingly even if, as Mr Elvin asserts in his written submissions of 27 July 2023, that “it is this Notice to Leave dated 15Apr23 that I should have referred to in my original application to QCAT”, the application should have been struck out. -- 3 of 8 -- 4 [14] On 20 June 2023, the Tribunal ordered: “The matter be adjourned to Friday 14th July 2023”. The adjourned proceedings proceeded on the latter date and the orders earlier referred to were made What Application Was Purportedly Determined [15] The Townsville Tribunal file reveals the following handwritten notations under the heading “order”, all apparently made on the day of the 20 June hearing: Form 12 h/o date = 19.5.23 App filed = 8.6.23 = 20 days = outside time - S 293 (2) must be made within 2 weeks - Please keep this file open – new application to be put into this one adj 9am 14 July 2013 [sic] [16] The notation “new application to be put into this one” perhaps suggests a new application was to be filed by Mr Elvin. However an email from “Courthouse Townsville” dated 10 July 2023, directed to Mr Elvin and authored by the “QCAT Clerk” at Townsville, says: Good afternoon Graham I have spoken with the Magistrate regarding whether or not she wanted you to supply a new Form 12 or do a new application, and she has advised that all she is looking for is a new Form 12. I wasn’t able to see one in the paperwork you provided last week, just the one dated 12/05/2023. Are you able to email me a copy of the new one? [bold emphasis added] [17] The cover sheet to the Tribunal file indicates that Mr Elvin’s “new” Form 12 dated 20 June 2023 was received by the Tribunal on 11 July 2023. It is common ground that Ms Essam and Mr Miles received that Form 12. [18] As can be seen, the email from the QCAT Clerk at Townsville also suggests that the Magistrate did not require a new application. Consistent with that indication, there is no new filed application contained within the material of either party before this appeal Tribunal. Nor does a new application appear anywhere on the Townsville Tribunal file. [19] Section 414A of the RTRA provides that an application of the instant type is to be made as prescribed by the QCAT Act.5 The QCAT Act provides, among other things, that an application must be in a form substantially complying with the Rules6 and be filed in the relevant7 registry. No such application was filed in respect of the 20 June 2023 Form 12. [20] No reference is made to any of those requirements, or to any waiver8 of them, in the transcript of the 14 July proceedings. Importantly, no reference was made to the form of the “new” application purportedly being heard on 14 July 2023, nor was there any attempt made to ascertain whether the self-represented (and plainly unsophisticated) 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld). 6 Rule 7 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) provides the application must be in the approved form. 7 See QCAT Rules, r 8. 8 Section 61(1)(c) of the QCAT Act. -- 4 of 8 -- 5 Ms Essam understood the nature of what was (presumably) intended as an oral application or to seek her attitude toward it proceeding. The Tribunal Lacked Jurisdiction To Make the Orders [21] Against the background just described, the Tribunal said at the outset of the 14 July proceedings:9 So you gave them a new Form 12, like we discussed. All right. So the first time this was before the tribunal, there was a technical issue in that after a form 12 was filed, an application needs to be made within 14 days. [22] When Ms Essam informed the Tribunal that there were no arrears of rent owing at that date, the Tribunal said: Well, that’s excellent news. However, if Mr Elvin has completed his paperwork now, which I’m looking at he has, he’s entitled to get his property back. So, Mr Elvin, you’re still seeking the termination?10 [23] Immediately thereafter, Ms Essam said to the Tribunal: … I have seeked legal advice in relation to this and I’ve been advised, as the matter was already before the court when Mr Elvin served the second notice to leave, that they are – that notice to leave will be null and void because the matter was already before the courts. The Magistrate replied: No. It’s not. And I, rather than have him to have to pay two filing fees, left the file open - - - 11 [24] It seems plain that there was an attempt by the Tribunal to cure flawed proceedings as if the flaw was a “technical issue” – that is, presumably, a procedural irregularity that could be waived.12 [25] The failure by Mr Elvin to file an application within 14 days of the handover day specified in the Form 12 issued on 12 May 2023 is, with respect, not a “technical issue” and nor is it a procedural irregularity which can be waived. Rather, compliance with the sequential steps envisaged in sections 280, 281 and 293 of the RTRA13 is the precondition to the Tribunal having jurisdiction to make the orders sought: The requirements are not merely a matter of form; they are preconditions to QCAT’s jurisdiction to grant relief under the RTRA. The path that the agent took to proceedings in QCAT in this case required a series of steps to be taken in order. Each stood like one in a line of dominos. If one fell it brought the others down with it.14 [26] An application for a termination order (and warrant of possession) can only be made if a valid Form 1215 has been served and the application is brought within the 9 Transcript of proceedings, 14 July 2023, p 1-2. 10 Transcript of proceedings, 14 July 2023, p 1-2. 11 Transcript of proceedings, 14 July 2023, pp 1-2–1-3. 12 Section 61 of the RTRA 13 And the requirements of ss 326, 327 and 328 of the RTRA. 14 Lowe v Aspley [2010] QCATA 59, at [11] per Kingham DCJ, Deputy President. 15 As to which see s 326 of the RTRA. -- 5 of 8 -- 6 prescribed time of two weeks.16 The required foundation for issuing a valid Form 12 is failing to comply with a Form 11 Notice to Remedy Breach within the allowed remedy period.17 [27] Compliance with each, as the RTRA mandatorily requires, gives the Tribunal jurisdiction to hear and determine the application for the termination order and warrant. Non-compliance with any of those inter-dependant requirements denies the Tribunal the jurisdiction to make those orders. [28] As a consequence of Mr Elvin’s application not being filed within two weeks of the handover date specified in his Form 12 of 12 May 2023, the Tribunal did not have jurisdiction to hear and determine his application. His application should necessarily have been struck out.18 [29] That is not what occurred. The proceedings were adjourned so as to permit a “new” Form 12 to be filed within those same proceedings. In doing so, the Tribunal made it clear that the same proceedings would now be founded on a “new” Form 12. [30] However, in truth there were no proceedings that could be adjourned; those proceedings could only exist if the Tribunal had jurisdiction and it did not. [31] Just as the time for filing an application cannot be extended so as to give the Tribunal jurisdiction that it does not have,19 so too a “new” Form 12 filed in proceedings lacking jurisdiction cannot give the Tribunal jurisdiction that it does not otherwise have.20 [32] The failure to strike out Mr Elvin’s application founded on his Form 12 of 12 May 2023 is, in my opinion, an error of law. [33] The order for adjournment was made in proceedings for which the Tribunal had no jurisdiction. That order too was made without jurisdiction and the making of that order is also an error of law. [34] The errors of law just referred to amount to the Tribunal acting without jurisdiction and, as such, demand correction. The making of orders without jurisdiction are also productive of injustice to Ms Essam and Mr Miles.21 [35] Leave to appeal should be granted and the appeal allowed. The Nature of the Hearing [36] Even if, contrary to my finding, the Tribunal had jurisdiction to entertain an application based on the “new” Form 12 on 14 July 2023 (and procedural 16 Section 293(2) of the RTRA. 17 Section 281(1) of the RTRA. 18 See Edenborough and Symes cited by Member Lember above. As, with respect, correctly recorded in the directions by Member Lember earlier quoted, the time prescribed by s 293(2) cannot be extended. Further, it is common ground that this Form 12 was never served. 19 Lowe, above and the cases cited by Member Lember at [6](c) above. 20 “The RTRA is prescriptive about the requirements for issuing Notices and commencing proceedings”: Lowe, above at [10]. 21 As to the requirements for leave to appeal, see for example in this Tribunal, Crime and Corruption Commission v Lee [2019] QCATA 38 at [12]; Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17]. -- 6 of 8 -- 7 requirements governing the form of the application were properly waived) the hearing on that date proceeded from a central error of law. [37] In answering issues raised by Ms Essam, the Tribunal said: … So once you don’t pay your rent, you run that slippery slope downwards and once the owner of the property gets their paperwork into order and ticks off the boxes in the Act, you can’t resist the application. It’s really a question of at what point do we terminate – how much time do you get before the lease is terminated and you need to move.22 [bold emphasis added] [38] Respectfully, that is not correct. Before making the termination order, the Tribunal must be satisfied that the ground in the application has been satisfied and that a breach has been committed.23 But the Tribunal must also be satisfied that “the breach justifies terminating the agreement”.24 [39] Thus, the making of the order involves, ultimately, the exercise of a discretion. Section 337(3) of the RTRA specifies a number of matters to which the Tribunal may have regard in deciding whether to exercise the discretion in favour of making the order but the exercise of the discretion is not limited to a consideration of only those matters.25 [40] The transcript of the 14 July 2023 proceedings, and the material before the Tribunal on 20 June 2023 and 14 July 2023 more broadly, reveals Ms Essam asserting a number of matters that may have been relevant to the exercise of the s 337 discretion. They include assertions as to payments of rent, the absence of arrears at the date of hearing; illness and medical conditions asserted to be suffered by Ms Essam and Mr Miles; and discussions and text messages between her and Mr Elvin. [41] None or all of those matters may necessarily have resulted in a termination order not being made. But the RTRA demanded that they be considered in the exercise of the discretion. [42] The order stood to be resisted by the exercise of the s 337 discretion in favour of Ms Essam and Mr Miles. The Tribunal proceeded on the erroneous assumption that it was not possible to resist the order. [43] Further, that central error led to Ms Essam and Mr Miles not being accorded procedural fairness. Ms Essam (acting on behalf of both) was never given the opportunity to present any case resisting the making of the order. That, too, in my opinion is an error of law. What Orders Should Be Made? [44] The errors of law earlier identified will result in the order for adjournment made on 20 June 2023 and the orders made on 14 July 2023 all being set aside. 22 Transcript of proceedings, 14 July 2023, p 1-4. 23 Section 337(2)(a) and (b) of the RTRA. 24 Section 337(2)(c) of the RTRA. 25 Section 337(3)(f) of the RTRA permits the Tribunal to take into account “any other issues it considers appropriate”. -- 7 of 8 -- 8 [45] It is appropriate as a consequence for this appeal Tribunal to substitute its own decision.26 [46] It will be clear from the reasons earlier set out that I consider an order should have been made on 20 June 2023 striking out Mr Elvin’s application. That order should be made in substitution for the orders set aside. Events Since the 14 July 2023 Hearing [47] In material before this appeal Tribunal that is, with respect, somewhat confusing, both parties make assertions as to matters which have occurred since the 14 July orders. They include an apparent assertion that Ms Essam has vacated the premises. There is a (hearsay) suggestion that Mr Miles may do so. [48] Material filed by Mr Elvin suggests that he considers the tenancy has terminated because its fixed term is at an end. He should obtain advice in that respect bearing in mind s 277 of the RTRA and, for example, the decision in Lobato v Gardian Real Estate Pty Ltd.27 [49] Ms Essam filed a Form 20 Application on 4 August 2023 seeking to be removed as a tenant pursuant to s 308A of the RTRA. [50] If it is intended to pursue the application, it is necessary to do so before the Tribunal in Townsville. Orders [51] The following orders will be made: 1. The applicants are granted leave to appeal. 2. The appeal is allowed. 3. The order for adjournment made by the Tribunal on 20 June 2023 is set aside. 4. The order for termination of the residential tenancy and the order issuing a warrant of possession made by the Tribunal on 14 July 2023 is each set aside. 5. In substitution for the orders set aside, order that the application for a termination order filed by Mr Elvin on 8 June 2023 be struck out. 26 Section 146(b) of the QCAT Act. 27 [2021] QCATA 130, at [20]. -- 8 of 8 --