Coast2Bay Housing Group Ltd v Professionals Real Estate Caboolture/Morayfield [2019] QCATA 64

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Coast2Bay Housing Group Ltd v Professionals Real Estate Caboolture/Morayfield [2019] QCATA 64 PARTIES: COAST2BAY HOUSING GROUP LTD (appellant) v PROFESSIONALS REAL ESTATE CABOOLTURE/MORAYFIELD (respondent) APPLICATION NO/S: APL328-17 ORIGINATING APPLICATION NO/S: MCDT402/017 MATTER TYPE: Appeals DELIVERED ON: 14 May 2019 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Ann Fitzpatrick ORDERS: 1. Leave to appeal is granted. 2. The decision made 5 October 2017 is set aside. 3. Application number MCDT 402 of 2017 is dismissed for want of jurisdiction. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where appeal from residential tenancy matter in QCAT’s minor civil disputes jurisdiction – where Residential Tenancies and Rooming Accommodation Act 2008 (Qld) does not apply to a headlease with a non-profit corporation subletting the premises to a person under an affordable housing scheme – where no QCAT jurisdiction Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 39(1) Pickering v McArthur [2005] QCA 294 REPRESENTATION: Applicant: Self-represented -- 1 of 5 -- 2 Respondent: Self-represented APPEARANCES: 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 seeks leave to appeal and to appeal a decision made by the Queensland Civil and Administrative Tribunal (‘QCAT’) on 5 October 2017. [2] The grounds of appeal are that: (a) QCAT did not have jurisdiction to decide the application by the respondent which was seeking termination of a lease and a warrant of possession pursuant to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRA Act’); (b) By s 39(1) of the RTRA Act, the Act does not apply to an agreement relating to the letting of premises entered into by a non-profit Community Housing Provider, funded by the Department of Housing and Public Works, in relation to an affordable housing scheme. (c) The appellant is a non-profit corporation funded by the Department of Housing and Public Works subletting premises as part of an affordable housing scheme. (d) The tenant was not a party to the minor civil dispute proceedings before the Tribunal. The tenant is the legal tenant at the property located at 1 Tilley Court, Caboolture, however the tenant will not be named in the Warrant of Possession. (e) Two other similar matters have recognized the Tribunal’s lack of jurisdiction namely Caboolture Claim T556/12 and T125/16. [3] The appellant seeks an order that the decision to terminate the tenancy be struck out and that the Warrant of Possession be withdrawn and cancelled. [4] By decision made 16 November 2017, an Appeal Tribunal ordered that the termination order made, and warrant issued on 5 October 2017, are stayed pending the outcome of the application for leave to appeal or appeal. [5] The background to this appeal is that the appellant raised in its response and counter application to the original minor civil dispute application by the respondent, that the application should be struck out for want of jurisdiction. [6] On 28 September 2017 a decision was made by the Delegate of the Principal Registrar of QCAT, to refuse to strike out the initiating application. No reasons were given. That decision was posted to the appellant and received shortly prior to the 5 October 2017 hearing. [7] The appellant again raised the issue of jurisdiction with the Member at the 5 October hearing. -- 2 of 5 -- 3 [8] The Member said that a decision had been made on the issue of jurisdiction and that it was not for him to go behind the decision where there had been no appeal. [9] The Member did however consider submissions made by the appellant and determined the question. [10] The Member noted that although the headlease before him referred to dispute resolution in the Magistrates Court, it also makes reference to procedures under the RTRA Act. [11] The Member concluded that the headlease does not take away the operation of the RTRA Act in the circumstances. He concluded that the tribunal does have jurisdiction to hear the application. The Member made a termination order in relation to the tenancy agreement between the parties and issued a warrant of possession. Leave to appeal and appeal [12] By s 142(3)(a)(i) of the QCAT Act, an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction may only be made with leave of the Appeal Tribunal. Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice and where there is a reasonable argument that there is an error to be corrected.1 [13] Questions of jurisdiction are fundamental to the power of the Tribunal to determine matters and for enforcement of decisions. The issue raised by the appellant is serious. The appellant makes a reasonable argument that there is an error to be corrected. Leave to appeal is therefore granted. [14] Determining the jurisdiction of the Tribunal is a question of law. By s 146 of the QCAT Act the Appeal Tribunal may confirm or amend the decision the subject of the appeal, set aside the decision and substitute its own decision, set aside the decision and return the matter to the tribunal or make any other order it considers appropriate. Headlease [15] The headlease comprises Part 1 Schedule and Part 2 Conditions. Part 1 sets out the parties and their addresses; the address of the leased premises, term and rental. The appellant is described as a CRS Organisation. CRS is not defined, but the appellant submits that the headlease was entered into under the Queensland Government’s Transitional Housing (CRS) Scheme. [16] The headlease authorises the appellant as tenant under the headlease to sub-let the premises to a person pursuant to the CRS Scheme. The headlease provides at clause 30 that if a dispute arises between the head lessor and the CRS, then either party may give the other a Form 11 Notice to Remedy breach. I note Form 11 is a Form prescribed under the RTRA. Clause 30 provides that if a Notice to Remedy breach is not complied with, a party may apply for mediation or determination of the dispute by a Magistrates Court. Clause 33 provides the process by which the headlease 1 Pickering v McArthur [2005] QCA 294, [3]. -- 3 of 5 -- 4 agreement may be terminated including the giving of relevant notices to the appellant. Submissions and findings [17] The appellant submits that the respondent did not comply with the provisions of the headlease in relation to termination and simply proceeded to seek termination and a warrant for possession from the Tribunal. The method for terminating the lease is said to be contained in the headlease and the Property Law Act 1974 (Qld). [18] The appellant submits that the Tribunal had no jurisdiction to hear and determine the claim. [19] The appellant submits that the Tribunal is not empowered to deal with the respondent’s application because no jurisdiction is conferred by the RTRA Act as an enabling Act nor does the Tribunal have original jurisdiction to hear the matter as a minor civil dispute. [20] In relation to the first argument it is submitted that the appellant falls within s 39(1) of the RTRA Act. The respondent does not make any submission in this regard and in particular does not submit that the appellant is not a non-profit corporation which entered into the headlease for the purpose of subletting the premises to a person under an affordable housing scheme. I am satisfied on the basis of the appellant’s submissions that the appellant is a non-profit corporation which sublet the premises under an affordable housing scheme. [21] As a result by applying s 39(1) of the RTRA Act, I find that the RTRA Act does not apply to the headlease. It follows that an application for termination of a lease and a warrant of possession pursuant to the RTRA could not be decided by the Tribunal under that Act. [22] As to whether the Tribunal could deal with the matter as a minor civil dispute under s 11 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), the Tribunal may exercise its jurisdiction if a relevant person has applied to the tribunal to deal with the dispute. [23] The respondent does not fall within any relevant part of the definition of ‘relevant person’. The respondent was not seeking a debt or liquidated sum in the claim. Insofar as the respondent might be considered a ‘trader’, the definition excludes a person who lets to a tenant a dwelling for assigning or subletting the dwelling to someone else, as is the case in these circumstances. [24] The respondent made no submissions in relation to this issue. I find that the Tribunal did not have jurisdiction to hear the matter as a minor civil dispute. [25] The respondent’s principal argument is that it made application to QCAT in accordance with clause 30(b)(ii) of the headlease. Clause 30(b)(ii) specifically refers to an application to the Court. Court is defined in the agreement to mean the Magistrates Court nearest to the location of the premises. The respondent has misunderstood the agreement and commenced termination of lease proceedings in the wrong jurisdiction. -- 4 of 5 -- 5 [26] The appellant makes further submissions that the Tribunal made errors of fact by finding that the respondent had followed the correct procedure in attempting to terminate the lease and evict the tenant. In view of my finding that the Tribunal had no jurisdiction to deal with the respondent’s application, it is futile to make findings in relation to questions of fact determined by the Tribunal. The questions of fact are not matters for QCAT. Orders [27] On the basis that QCAT has no jurisdiction to deal with application number MCDT 402 of 2017: (a) the decision made 5 October 2017 is set aside; (b) application number MCDT 402 of 2017 is dismissed for want of jurisdiction. -- 5 of 5 --