Crowther v Jaunitis and Anor [2022] QCATA 137

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Crowther v Jaunitis and Anor [2022] QCATA 137 PARTIES: TEENA CROWTHER (appellant) v IMANTS JAUNITIS AND RHONDA JAUNITIS (respondents) APPLICATION NO: APL132-22 ORIGINATING APPLICATION NO: MCDT408/22 MATTER TYPE: Appeals DELIVERED ON: 13 September 2022 HEARING DATE: Heard on the papers HEARD AT: Brisbane DECISION OF: Member JR McNamara ORDERS: It is ordered that the application for leave to appeal be deemed to include a ground that the application of Imants Jaunitis and Rhonda Jaunitis filed on 12 April 2022, insofar as it concerned the Notice to Leave for rental arrears, was made contrary to section 293 of the Residential Tenancies and Rooming Accommodation Act 2008 and that accordingly the Tribunal lacked jurisdiction to make the orders recorded on 10 May 2022. The interlocutory applicated filed 1 August 2022 is dismissed. The application for leave to appeal is granted. The appeal is allowed. The orders made on 10 May 2022 are set aside. The application of Imants Jaunitis and Rhonda Jaunitis filed on 30 May 2022 is dismissed. Application number 408/22 (Southport) together with the transcript of evidence in the original hearing be remitted to the minor civil disputes jurisdiction for hearing. -- 1 of 7 -- 2 The hearing of the application be restricted to consideration of the Notice to Leave for vacant possession due to a contract of sale. No order as to costs. CATCHWORDS: APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where tenant was served Notice to Leave for vacant possession for contract of sale – where tenant was issued a Notice of Breach for rental arrears – where tenant was subsequently served a Notice to Leave for failing to pay rental arrears – where lessors applied for a termination of the lease – where orders made for termination and issue of warrant of possession – whether proceedings for termination order may be instituted before expiry of Notice to Leave – whether application to the Tribunal premature – whether there was jurisdiction to entertain the application – where ground of application not decided in the original hearing – where application for leave to appeal and appeal granted and the matter remitted to the Tribunal Queensland Civil and Administrative Tribunal Act (Qld) s 146 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) s 39. Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 293, s 326, s 328, s 329 Face 2 Face Foundation Pty Ltd v Brisbane City Council [2013] QCATA 252, applied Horsley v Davis [2021] QCATA 124, cited 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 appellant (‘tenant’) occupies a property owned by the respondents (‘lessors’). [2] The lessors commenced two processes to regain possession of the property. [3] One, based on a need for vacant possession due to a contract of sale. That process commenced with a Form 12 Notice to Leave. The other for rental arrears was commenced with a Form 11 Notice to Remedy Breach, followed by a Form 12 Notice to Leave when the breach was not remedied. [4] The ‘sale contract’ Notice to Leave (Form 12) was issued on 9 March 2022, with a handover day, required to be a minimum 4 weeks after the notice was issued, on 6 April 2022.1 1 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 329(2)(f). -- 2 of 7 -- 3 [5] The ‘rent arrears’ Notice to Remedy Breach (Form 11) was issued on 4 April 2022, and the date by which the breach was to be remedied was 7 days later on 11 April 2022.2 The Notice to Leave (Form 12) was issued 12 April 2022, and the handover date was, as required, a minimum 7 days later on 19 April 2022.3 [6] The relevant timeframes for each step up to this point were in compliance with the statutory requirements of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘the Act’). [7] Both matters were identified in the lessors’ 12 April 2022 application to QCAT for a termination order. The QCAT application [8] The QCAT application as it relates to the ‘sale contract’ was, as required, made within 2 weeks of the nominated date (6 April 2022) to vacate.4 [9] The QCAT application as it relates to ‘rent arrears’ was made on the same date (12 April 2022) as the Notice to Leave was given, but prior to the nominated date to vacate (19 April 2022). [10] The lessors’ application led to a QCAT hearing on 10 May 2022 and resulted in a termination order and the issue of a warrant of possession (‘the decision’). [11] The Adjudicator based the decision to make a termination order and to issue a warrant of possession on the application insofar as it concerned rent arrears. There was no decision concerning the sale agreement. [12] The tenant is in arrears of rent. The tenant does not dispute that she is in arrears. She does dispute the amount. The tenant was aware of the lessors’ claim that there was a sale agreement. The appeal [13] The tenant lodged an application to stay the decision, and an application for leave to appeal or appeal. The stay was granted. [14] The lessors brought an application to dismiss or strike out the appeal. [15] The tenant’s reason for the application for stay, and the ground of appeal is the same. It is that the lessors “did not follow correct procedure”. The particulars are that the Notice to Leave (Form 12) was served on the same day as the application to QCAT for a termination order, whereas the tenant submits they should have been allowed seven (7) days to leave the property. [16] I am satisfied that the relevant timeframes in relation to the Form 12 Notices to Leave in both the ‘rent arrears’ matter and the ‘sale contract’ matter complied with timeframes required by the legislation. The ground raised in the tenant’s application is therefore not made out. [17] However, a question arises as to whether QCAT could proceed to determine an application for a termination order on the basis of ‘rent arrears’ made before the 2 Ibid s 328(1). 3 Ibid s 329(2)(a). 4 Ibid s 293(2). -- 3 of 7 -- 4 nominated date to vacate the property had passed. For the reasons that follow my answer is no. The interlocutory application [18] On 1 August 2022 the appellant filed an interlocutory application to extend a time limit for compliance pursuant to s 61(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).5 In the application, the appellant sought an extension of time (2 weeks) before this appeal was decided in order to file further material. The material the appellant wished to file was a report from the Gold Coast City Council, to be prepared after a unit inspection. The appellant claimed that the “Council found many things wrong such as no smoke alarms. Etc”. [19] The relevant direction that the appellant seeks to have extended is not specified, but appears to be direction 4 of the directions dated 27 June 2022, which states that: Unless otherwise ordered by the Appeal Tribunal, the application for leave to appeal or appeal will be heard on the papers together with any application for leave to rely on fresh evidence by written submissions and without an oral hearing, not before: 4:00pm on 3 August 2022. [20] Both parties have sent correspondence to the QCAT Registry since the interlocutory application was lodged, largely related to alleged deficiencies with the property (such as a lack of smoke alarms). [21] The report that the appellant wishes to file appears, from the correspondence on file, to be related to the state and condition of the property. The quality of the property is not in issue in this appeal. Furthermore, it is unclear as to whether the interlocutory application was ever served on the respondents.6 The interlocutory application is therefore dismissed. The timing of the QCAT application [22] The ‘rent arrears’ Form 12 contains information required by the Act, including the statement:7 that if the tenant does not leave the property by the date nominated, the lessor may apply directly to QCAT for a termination order without further notice to the tenant; that the lessor must submit the termination application within 2 weeks of the nominated date; and that if QCAT makes a termination order it must also issue a warrant of possession. [23] While a termination application must be brought no later than 2 weeks after the nominated date (a maximum period within which an application can be brought), the Act is silent as to when an applicant can commence. [24] In Face 2 Face Foundation Pty Ltd v Brisbane City Council [2013] QCATA 252, Dr Forbes, Member, considered a not dissimilar factual situation and reasoned at [17]- [23] (references omitted): [17] However, the Appellants’ submission based on section 293 of the RTRAA is another matter. The response of the BCC is brief: The final point is that proceedings “MCDT42/13 became void ab initio”. The real point that appears 5 Form 42 - Application to extend or shorten a time limit or for waiver of compliance with procedural requirement. 6 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) s 39. 7 Ibid s 326 (2)(b). -- 4 of 7 -- 5 to be being made is that by reason of the application having been made prior to the “handover day” the application is void ab initio. [Section 293 is quoted and the submission continues.] In this case the application was made before the handover day which was 17 June 2013. However, such a step is not prohibited by section 293(2) – what is prohibited is the bringing of an application 2 weeks after the handover day. [18] In my view, this submission pays insufficient attention to the fact that the giving of notice and a failure to comply with the notice are cumulative conditions precedent to the right to apply for an eviction order. There must be a notice given, and then a failure to leave. It also glosses over the imperative “must” and the phrase “after the handover day” in subsection (2), and the words of subsection (3): “An application made under this section is called an application because of a failure to leave”. Significantly it is not called “an application in case there is a failure to leave”. A past non-compliance is clearly contemplated. [19] It would be strange if the legislature intended to set a strict outer limit to a landlord’s right to seek termination, as it does, but left the time for commencement open-ended. If that were the case, a landlord, so disposed, might wield a section 293 application as a Damoclean sword over a tenant’s head, and divert the resources of the Tribunal to the recording of a claim that might never be capable of pursuit. The better view, as I see it, is to treat section 293 as creating a 14-day window of opportunity immediately following the expiration of a notice to leave. That interpretation seems more consonant with the object of stating clearly the rights and obligations of tenants, particularly in residential tenancies. [20] In effect, section 293 creates a statutory cause of action. The general principle is that a cause of action must be complete before it can support a valid writ or equivalent initiating process. Thus, in an action for moneys due - [U]ntil the expiration of [the due date] an action cannot be brought because there is no complete cause of action. [21] Therefore: It is not possible by amendment to add a cause of action not in existence at the date of a writ. [22] The BCC’s submission does not closely analyse section 293, or cite any authority for the BCC’s interpretation of it. In fairness, it does appear that there is no authority directly in point, but assistance is offered by a decision of the Supreme Court of Victoria in Bundy v Alberts. The Victorian legislation applied in Bundy differed in detail from our section 293, in that it required the application to be made after the service of a notice, but did not stipulate that the application must follow a failure to comply with the notice. (In this respect, the Queensland legislation may be seen as more sensible and economical.) In fact the landlord in Bundy served the notice and the application simultaneously. Brushing aside an argument that this procedure was a common “industry practice”, the Court held that the application was premature, that the prior service of a notice was a mandatory precondition for jurisdiction, and that the tribunal below had no jurisdiction to proceed. In my view the same considerations apply, mutatis mutandis, to the premature application in this case. [23] It follows that the orders made herein on 8 July 2013 were made without jurisdiction, and are of no effect. Their making was an error of law. The -- 5 of 7 -- 6 application for leave will be granted, the primary application will be dismissed, and the orders based upon it set aside. I am bound by law to draw these conclusions, regardless of the manner in which the Appellants’ case was conducted. [25] I accept the analysis and conclusion of Dr Forbes and find that the 10 May 2022 orders based on the ‘rent arrears’ were made without jurisdiction and are of no effect. Accordingly, it is appropriate to grant leave to appeal. The other cause of action [26] Unlike the facts before Dr Forbes in Face 2 Face, there was another cause of action (the ‘sale contract’) in existence when the application was made. No decision has been made in respect of that cause of action. [27] Evidence concerning the ’sale contract’ at the time of the hearing was quite limited. The status of the contract of sale does not feature in the transcript of proceedings on 10 May 2022. In the 12 April 2022 QCAT application the lessor says in their ‘reasons the orders should be made’: Our financial situation, because of this lack of income, has caused us to sell the property. It is currently under contract with a 9th May 2022 settlement date. On 9 th March we notified Teena that the unit went under contract for sale and asked her to please vacate the premises by 4th April 2022, if not before… We need to have her leave before settlement date as we also need time to go in and remove our belongings before settlement. The new owner has requested the unit be vacant of occupant on settlement. [28] My decision to allow the appeal on a question of law is in the nature of judicial review, rather than a rehearing.8 I am therefore unable to take into account what might have occurred since the decision under appeal. Information in the material concerning the possible sale of the property mostly post-dates the hearing and decision. [29] Notices to Leave because of a sale contract are allowed a shorter notice period than a notice ‘without ground’ for a periodic agreement. The handover day for a notice to leave given because of a sale contract is 4 weeks,9 as opposed to 2 months if given without ground.10 Because of that elevated status, it would be expected that some evidence to confirm that a sale contract did exist would need to be considered or conceded before a decision to terminate and issue a warrant of possession would be granted on that basis. [30] To make a termination order, QCAT must be satisfied that the lessor has established the ground of the application. Conclusion [31] For these reasons it is appropriate in my view for the matter to be remitted for hearing on the ground stated but not decided in the application. That is, the sale contract. 8 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146; Horsley v Davis [2021] QCATA 124. 9 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 329(2)(f). 10 Ibid s 329(2)(j) and s 329(2)(k). -- 6 of 7 -- 7 [32] Given my conclusion about the appeal, it is appropriate for the lessors’ application to strike out the appeal be dismissed. Orders It is ordered that the application for leave to appeal be deemed to include a ground that the application of Imants Jaunitis and Rhonda Jaunitis filed on 12 April 2022, insofar as it concerned the Notice to Leave for rental arrears, was made contrary to section 293 of the Residential Tenancies and Rooming Accommodation Act 2008 and that accordingly the Tribunal lacked jurisdiction to make the orders recorded on 10 May 2022. The interlocutory applicated filed 1 August 2022 is dismissed. The application for leave to appeal is granted. The appeal is allowed. The orders made on 10 May 2022 are set aside. The application of Imants Jaunitis and Rhonda Jaunitis filed on 30 May 2022 is dismissed. Application number 408/22 (Southport) together with the transcript of evidence in the original hearing be remitted to the minor civil disputes jurisdiction for hearing. The hearing of the application be restricted to consideration of the Notice to Leave for vacant possession due to a contract of sale. No order as to costs. -- 7 of 7 --