Agarwala & Anor v LJ Hooker [2023] QCATA 93

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Agarwala & Anor v LJ Hooker [2023] QCATA 93 PARTIES: SWATI AGARWALA (first applicant) And MOHIT BHARIO (second applicant) v LJ HOOKER (respondent) APPLICATION NO/S: APL034-23 ORIGINATING APPLICATION NO/S: MCDT3207/22 (Brisbane) MATTER TYPE: Appeals DELIVERED ON: 10 July 2023 HEARD AT: Brisbane DECISION OF: Member Lember ORDERS: The decision in MCDT3207/22 made on 17 January 2023 is stayed pending further order of the Appeal Tribunal. Subject to any submissions filed by any party and given to any other party by 31 July 2023 the Appeal Tribunal intends to grant leave to appeal, to allow the appeal, to set aside the decision made in MCDT3207/22 on 17 January 2023 and to dismiss the tenants’ application in MCDT3207/22 for want of jurisdiction. If any party wishes to make submissions in relation to the application for leave to appeal or appeal, they must file two (2) copies of those submissions in the Tribunal and give a copy to any other party by 4pm on 31 July 2023. The application for leave to appeal or appeal will be determined on the papers not before 31 July 2023. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where stay is sought of a decision made in the minor civil -- 1 of 9 -- 2 dispute jurisdiction – where subject matter is a decision to set aside a notice to leave– where application to set aside notice out of time - where errors of law evident in the decision – where interim order made granting stay Residential Tenancies and Rooming Accommodation Act 2008 Qld s 246A, s 291, s 292 (repealed), s 426, s 414A, s 415, s 416, s 417 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 58, s 145, Schedule 3 Cachia v Grech [2009] NSWCA 232 Camden v McKenzie [2007] QCA 136 Commissioner of Taxation v Baffsky [2001] NSWCCA 332 Day v Humphrey [2017] QCA 104 Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Hessey-Tenny & Anor v Jones [2018] QCATA 13 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Penfold v Firkin & Balvius [2023] QCATA 11 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Simonova v Department of Housing and Public Works [2018] QCA 60 Smart State Vehicle Rental Pty Ltd v Tri Asset Protection Systems Pty Ltd [2013] QCATA 16 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 What is this application about? [1] Agarwala and Bhario received from LJ Hooker a notice to leave their tenancy on the grounds that the fixed term tenancy period was ending. By an application filed 22 December 2022 (MCDT3207/22) they sought to set the notice aside on grounds that it was retaliatory. [2] On the hearing of that application on 17 January 2023, the Tribunal Adjudicator made orders: (a) setting the notice aside; (b) setting market rent for the tenancy at $495 per week; (c) granting the tenants a fixed term, three month tenancy from 10 January 2023; and -- 2 of 9 -- 3 (d) compelling the tenants to sign a tenancy agreement on those terms within seven days. [3] Although the parties complied with the orders, the agents advise that since the three- month fixed term tenancy ended on 9 April 2023 the tenants have refused to vacate the property and, according to the agent, have ceased paying rent. [4] For their part the tenants have applied to stay the decision and for leave to appeal it.1 They say that: (a) The rent should have been $450 not $495; (b) The decision to impose a three-month fixed term was unfair and unreasonable because it should have been six months; (c) Ms Agarwala was denied natural justice as she says her voice couldn’t be heard during the hearing via MSTeams, and the agent and the member had a general discussion without her prior to the hearing and appeared to know each other; and (d) Their evidence was not discussed or looked upon. [5] This decision addresses the stay application and makes directions for the conduct of the ongoing application for leave to appeal and appeal. [6] I say at the outset that the allegations of interactions between the agent and the Adjudicator prior to the hearing and as to Ms Agarwala not being heard are entirely unfounded. I have listened to the complete audio of the hearing and confirmed that Ms Agarwala was connected to the hearing room before the agent, who attended in person, was brought into the room. There were no discussions had without her. Ms Agarwala could be heard clearly and participated throughout the hearing. She was briefly disconnected during the announcement of the decision, but this was after the close of submissions, and the giving of the decision was then paused until she was reconnected. No discussions were held during the pause other than the Adjudicator directing the hearing support officer to reconnect Ms Agarwala, and saying that he would wait until she was reconnected before continuing. Stays and applications for leave to appeal under the QCAT Act [7] Under section 145(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) the Appeal Tribunal may make an order staying the operation of a decision of the Tribunal below until the appeal is finally decided. However, there is no appeal until and unless leave to appeal has been granted where required. [8] Section 58(1) of the QCAT Act permits the Appeal Tribunal to make any interim order it considers appropriate in the interests of justice, including, for example: (a) to protect a party’s position for the duration of the proceeding; or (b) to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction for the proceeding. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 143(3). -- 3 of 9 -- 4 [9] A “proceeding” is defined in Schedule 3 of the QCAT Act to generally mean “a proceeding before the tribunal, including an appeal before the appeal tribunal and a proceeding relating to an application for leave to appeal to the appeal tribunal”. [10] Therefore, an application to stay a decision that falls outside the ambit of section 145 may be considered under section 58 to allow a stay of a primary order in circumstances where leave to appeal has not yet been granted.2 [11] McMurdo JA said in Simonova v Department of Housing and Public Works3 that “the circumstances must be exceptional before an order in the nature of a stay will be granted, pending an application for leave to appeal”. [12] To succeed on a conventional application for a stay, the party applying for the stay must satisfy the Appeal Tribunal that there is a good reason for the stay, including:4 (a) that the applicant has a good arguable case on appeal; (b) that the applicant will be disadvantaged if a stay is not ordered; and (c) that competing disadvantage to the respondent, should the stay be granted, does not outweigh the disadvantage suffered by the application if the stay is not granted. [13] In determining whether to grant leave, the Appeal Tribunal must be satisfied that, relevantly: (a) there is a reasonably arguable case of error in the primary decision;5 (b) there is a reasonable prospect that the appellant will obtain substantive relief;6 and (c) leave is needed to correct a substantial injustice caused by the error;7 or (d) there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.8 Errors in the Adjudicator’s decision [14] The tenants filed their Form 2 application for a minor civil dispute – residential tenancy dispute on 22 December 2022 seeking orders pursuant to section 292 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRAA) to “set aside the notice to leave without grounds”. No documents were attached to the application. [15] This gave rise to several difficulties that ought to have been immediately obvious to the presiding Adjudicator but that appear to have been overlooked entirely: 2 Hessey-Tenny & Anor v Jones [2018] QCATA 131 at [24]. 3 [2018] QCA 60 at page 5. 4 Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 per Jerrard JA at [8]; Day v Humphrey [2017] QCA 104 per Morrison JA at [5] and [6]. 5 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 6 Cachia v Grech [2009] NSWCA 232, 2. 7 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 8 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580. -- 4 of 9 -- 5 The application was grounded upon a repealed section of the RTRAA (a) At the time the notice was given, when the application was filed, and when the matter was before the Tribunal (on both occasions) the relevant version of the RTRAA was the reprint effective from 1 October 2022 to 28 February 2023. Section 292 had been repealed by that time. The notice to leave the subject of the application was not in evidence, nor was it “without grounds” (b) Although the tenants submitted several documents to the Tribunal by email ahead of the hearing, the Form 12 notice to leave the subject of the application was not among them. Sighting the notice ought to have been a fundamental step in establishing jurisdiction. (c) Nonetheless the Adjudicator appears to have accepted the parties’ oral and extraneous (email) evidence that the notice to leave was given on 9 November 2022 based upon the impending expiry of the tenants’ fixed term tenancy agreement on 9 January 2023. The tenants’ application was filed out of time (d) Section 291 of the RTRAA permits the lessor to give a notice to leave the premises to the tenant if the residential tenancy agreement is a fixed term agreement and the notice relates to the end of the agreement, unless the giving of the notice constitutes the taking of retaliatory action against the tenant, or if the notice is being given because: (i) the tenant has applied, or is proposing to apply, to a tribunal for an order under the RTRAA; or (ii) the tenant— A. has complained to a government entity about an act or omission of the lessor adversely affecting the tenant; or B. has taken some other action to enforce the tenant’s rights; or C. an order of a tribunal is in force in relation to the lessor and tenant. (e) Importantly, under section 246A of the RTRAA, an application by a tenant for retaliatory action taken against them (including taking action to end a tenancy or refusing to enter into a new tenancy with the tenant at the end of the current agreement) must be made within one month after the tenant becomes aware of the lessor taking the action. (f) If the Adjudicator accepted that notice was given on 9 November 2022 for the end of the fixed term tenancy, then the tenants’ application to the tribunal filed on 22 December 2022 was well out of time and ought to have been dismissed for want of jurisdiction on that basis. (g) Section 426 might have had application, as it pertains to disputes about a notice to leave and permits a tenant to dispute the grounds of a notice, and, if the tribunal is satisfied the lessor was not entitled to give the notice on the ground stated, it may make any order it considers appropriate. However, a section 426 application is a non-urgent application (see sections 414A to 417 of the -- 5 of 9 -- 6 RTRAA) and therefore, without the RTA dispute resolution process having been completed, which there is no evidence of, this section could not have been relied upon to make the orders sought. [16] Additionally: The decision went against the evidence (a) Even if the Adjudicator considered and accepted that he had jurisdiction, the notice to leave was set aside in circumstances where the tenants’ evidence was that: (i) Throughout their 4½ year tenancy, the agent always submitted a notice to leave with tenancy renewal documents each six months. It was their standard practice when an end of term approached. In fact, Ms Agarwala said she was “sick of it” because it happened on every occasion of her renewal. (ii) The tenants had successfully set aside a notice to leave given in January 2022 on the grounds that it was retaliatory, but this appears to have been the first and only action taken by the tenants during the tenancy that might be considered as falling within section 291 or 246A. (iii) In a history of giving notices to leave with renewal documents as standard practice and for three years prior to the tenants’ action in January 2022 it is difficult to see how the giving of the notice the subject of the application could be considered retaliatory. Rather, the notices were habitually issued as a matter of course and best practice upon renewals being sent out, and were withdrawn upon new tenancy agreements being signed. (iv) Further, the basis for making the orders sought appears to be a finding by the Adjudicator that the agent breached a “contract” with the tenants by failing to offer them a further three-month lease at market rent of $495 per week at the time the notice to leave was given, rather than on the basis that it was retaliatory. The relevant discussion in the hearing went as follows: A. Ms Agarwala told the Adjudicator that she was offered her then current three-month term at a reduced rent of $420 per week, after which time she was told she must “move out or pay the rent at market rate”. B. Ms Agarwala told the Adjudicator that at that time she was “happy to leave” when market rent became payable after the current three months ended because it was not affordable. C. The Adjudicator said to the agent in the hearing that: I’m going to set aside your form 12. You cannot say to a tenant “at the end of this 3 months I will give you another lease at market” and then don’t offer them one, you can’t do it. That’s your contract and you should say to your owner “I can’t give that notice that you’re asking me to because the last time you told me to tell her you will give her three plus three”. -- 6 of 9 -- 7 (v) These are the only ‘reasons’ given by the Adjudicator for the decision. He appears not to have considered that tenants were not offered a new term at market rent because they had said it was not affordable and that they would move out (which is the evidence Ms Agarwala gave in the hearing). In any event, it is only if the refusal to offer the new term was because the tenants had complained to a government entity about an act or omission of the lessor adversely affecting the tenant, taken some other action to enforce the tenant’s rights or because an order of a tribunal was in force in relation to the lessor and tenant, that the power to set aside a retaliatory notice to leave under section 246A can be exercised. There were no findings made to that effect. The tribunal had no power to set market rent or to order the parties to enter into a fixed term tenancy agreement (b) There was no application before the tribunal to make the orders with respect to the market rent or fixed term tenancy and it is not clear why the Adjudicator felt he had such power or on which sections of the RTRAA he believed he was relying upon in doing so. (c) The additional orders made went well beyond the power of the tribunal to set aside a notice to leave pursuant to section 246A. The reasons given for the decision were inadequate (d) There is an obligation on the Tribunal to give reasons for its final decision in a proceeding either orally, or in writing.9 Those reasons must be adequate and must address the issues that were put before the Tribunal for determination per Muir JA in Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 at [58]: The rationale for the requirement that Courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving the losing party with “a justifiable sense of grievance” through not knowing or understanding why the party lost; to facilitate or not frustrate a right of appeal; as an attribute or incident of the judicial process; to afford natural justice with procedural fairness; to provide “the foundation for the acceptability of the decision by the parties and the public” and further “judicial accountability”. (e) Failure to give adequate reasons is an error of law.10 (f) Having said that, in Smart State Vehicle Rental Pty Ltd v Tri Asset Protection Systems Pty Ltd [2013] QCATA 16 Justice Wilson, President said at [8]: In the Tribunal’s minor civil disputes jurisdiction, giving immediate oral decisions accords with the spirit and purpose of the QCAT Act. The Appeal Tribunal should be slow to criticise oral reasons for decision without acknowledging the circumstances in which they are given, or the pressure of the learned Magistrate’s caseload. In an analogous situation, 9 Section 121(4), QCAT Act. 10 Camden v McKenzie [2007] QCA 136 at [29]. -- 7 of 9 -- 8 Spigelman CJ remarked in Commissioner of Taxation v Baffsky11 that it “is not appropriate to parse and analyse judgments given on an ex tempore basis by judges of the District Court, who have a considerable caseload.”12 [17] Even allowing for the busy caseload of an Adjudicator in the minor civil dispute jurisdiction, and although the Adjudicator announced his decision and asked the parties whether they had any questions and whether they agreed with his findings, his reasons for making the decision are not immediately obvious from the audio recording of the hearing. Ms Agarwala clearly does not understand the basis for the decision and does not believe her evidence was considered. There is certainly no summation of the relevant law, jurisdiction or evidence relied upon to make the decision. [18] Even if the parties do not raise the question of jurisdiction, the Appeal Tribunal has observed that “there is a fundamental obligation on any court or tribunal to satisfy itself as to jurisdiction when being asked to quell controversies that come before it”13 and this was not done. What should happen next? [19] Due to the errors discussed above, I consider that there is a strongly arguable case on the appeal. The parties are currently in a state of limbo, with the tenant occupying now as a periodic tenant, rent unpaid (according to the agent) and the agent reluctant to issue any further notices lest they be deemed retaliatory. There is no discernible detriment to any party in granting the stay on an interim basis because, frankly and regrettably, their situation cannot be made worse by it as they are equally impacted by the errors made by the Tribunal below. [20] Accordingly, pursuant to section 58 of the QCAT Act the decision in MCDT3207/22 made on 17 January 2023 is stayed pending further order of the Appeal Tribunal. [21] In relation to the application for leave to appeal and appeal, on a preliminary basis, subject to any submissions which may be made by a party, I am satisfied that there has been an error of law on the part of the Adjudicator below in making the decision in MCDT3207/22 on 17 January 2023 setting aside the notice to leave, in setting market rent and in imposing a tenancy agreement upon the parties when he had no statutory power to do so. [22] For these reasons I intend to grant leave to appeal, to allow the appeal, to set aside the decision made in MCDT3207/22 on 17 January 2023 and on a rehearing to dismiss the tenants’ application in MCDT3207/22 for want of jurisdiction. The effect of such an outcome would be that the parties will need to start again with their RTRAA procedures (issuing notices and so on), including any applicable RTA dispute resolution procedures that may be required before returning to the Tribunal. [23] If any party wishes to make submissions in relation to the application for leave to appeal or appeal and/or in response to the orders I have proposed in paragraph [22] above, they must file two (2) copies of those submissions in the Tribunal and give a copy to any other party by 4pm on 31 July 2023. 11 [2001] NSWCCA 332. 12 Ibid [49]. 13 Penfold v Firkin & Balvius [2023] QCATA 11. -- 8 of 9 -- 9 [24] The application for leave to appeal or appeal will be determined on the papers not before 31 July 2023. -- 9 of 9 --