Chamberlain v Weal [2019] QCATA 80

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Chamberlain v Weal [2019] QCATA 80 PARTIES: LOUISE CHAMBERLAIN (applicant/appellant) v TONY WEAL (respondent) APPLICATION NO/S: APL335-18 ORIGINATING APPLICATION NO/S: MCDT 501/18 MATTER TYPE: Appeals DELIVERED ON: 3 June 2019 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Carmody ORDERS: 1. Leave to appeal granted 2. The tribunal orders made in MCDT 501/18 are set aside. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where tribunal termination order made on repeated breaches grounds – where two of the three breaches relied on were not remedied – whether service of a Form 12 still required in the circumstances – where the tribunal order was made without jurisdiction. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) 229(2), 335(1)(g), 336, 347 REPRESENTATION: Applicant: Self-represented Respondent: Rebecca Kassulke, Twomey Schriber Property Group Agency on behalf of the respondent APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 1 of 2 -- 2 REASONS FOR DECISION [1] Leave to appeal was granted on 30 January 2019 to argue that a tribunal order terminating a fixed term tenancy on the ground of repeated breaches was made in error and should be set aside because a precondition to the discretion to make it had not been met. [2] Termination of a tenancy by tribunal order for unremedied breach requires prior service of a statutory notice of demand to the tenant for vacant possession in Form 12 but that procedure is dispensed with by s 335(1)(g) Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) for applications to end a tenancy early because of repeated breaches under s 299(2) RTRA Act [3] The term repeated breaches in this context relevantly means two remedied breaches (of the same provision of the RTRA Act about the use of the premises or general tenants’ obligations) followed by a third within the space of a year. [4] Under ss 336 and 347(1) RTRA Act termination for repeated breaches depends on the lessor’s eligibility to make it, proof of the ground of the application, the commission of each of the breaches alleged in the two Form 11 notices by the subject tenant and the considerations in s 347(2). [5] The termination order in issue was made by the tribunal where the tenant had been given two separate notices to remedy cleanliness breaches and the lessor relied on failure to comply with the second as the third in the series entitling him to apply for termination without having to give a notice to leave first under s 335(1)(g) RTRA Act. [6] The appellant contends in effect that the tribunal lacked jurisdiction to make a legally effective termination order under s 347(1)(a) RTRA Act for repeated breaches because s 299(2) RTRA Act requires at least two unremedied (not remedied) breaches before the requirement to serve a Form 12 is dispensed with. [7] I agree. The tribunal could not have been satisfied that the applicant had established the repeated breaches ground in compliance with s 347(1)(a) RTRA Act requires it to be before exercising the discretion to terminate. [8] The tribunal’s discretion therefore miscarried and the termination order cannot be considered a just and equitable one. It is set aside accordingly. -- 2 of 2 --