Diender v FMH Management Pty Ltd [2015] QCATA 89

CITATION: Diender v FMH Management Pty Ltd [2015] QCATA 89 PARTIES: Clae Diender Tamara Long (Applicant/Appellant) v FMH Management Pty Ltd (Respondents) APPLICATION NUMBER: APL054-15 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 23 June 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES -where the tenant is in arrears at time of hearing- where tenancy terminated due to arrears – where property management company breached s 96(2) of the Residential Tenancies and Rooming Accommodation Act – where notice to leave without grounds – where no application to set aside notice to leave without grounds - whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 96(2), 96(3), 291, 292 Pickering v McArthur [2005] QCA 294 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). -- 1 of 3 -- 2 REASONS FOR DECISION [1] Clae Diender and Tamara Long were tenants in a property managed by FMH Management Pty Ltd. The tenancy was for a fixed term starting on 11 June 2014 and ending on 10 December 2014. The tenants fell behind in their rent and FMH issued eighteen Form 11 notices to remedy the breach and two Form 12 notices to leave. [2] On 19 December 2015, the tenants filed an application to set aside those notices to leave. The tenants argued that FMH was using their rental payments to pay water rates in contravention of s 96(2) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act).The tribunal dismissed that application on 22 January 2015. The tenants did not appeal that decision. They did apply for a reopening, which was refused. [3] In the meantime, on 9 October 2014, FMH served a notice to leave without grounds. The notice expired on 13 December 2014. The tenants did not leave so FMH filed an application to terminate the tenancy agreement. On 2 February 2015 the tribunal terminated the tenancy on the grounds of failure to leave. [4] The tenants want to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [5] The tenants, again, rely on FMH’s breach of s 96 of the RTRA Act. They take issue with the refusal to reopen their application. They submit that their application was heard by a panel of Justices of the Peace, in breach of the QCAT Act. [6] I have considered the original file. The decision was made by an Adjudicator of the tribunal, not a panel constituted by Justices of the Peace. [7] The subject of this application was an application to terminate after a notice to leave without grounds. As the name of the notice suggests, the lessor does not need a reason to issue such a notice. It does not matter whether the tenants were in breach of the tenancy agreement or not. The tenancy agreement was due to expire and FMH wanted vacant possession. [8] A tenant can apply to set aside a notice to leave without grounds3 if it was given in contravention of s 291 of the RTRA Act. Section 291 states that a person must not give a notice if the tenant has applied, or is proposing to apply for an order under the Act, has complained to a government entity, 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 RTRA Act s 292. -- 2 of 3 -- 3 has taken action to enforce their rights or if the giving of the notice is retaliatory. [9] FMH gave the notice in October 2014. The only evidence that might fit within the terms of s 291 is the tenants’ application in December, months after the notice was given and expired. There is no evidence of any action by the tenants before, or at the time, the notice was issued. Even if there had been evidence that FMH was in breach of s 291, the tenants had 4 weeks to make an application to set aside the notice4. They did not do so. [10] The tenants’ arguments about s 96(2) of the RTRA Act may be valid, in the right forum. Unfotunately, this appeal is not the right forum. The learned Adjudicator was correct in his decision to terminate the tenancy. [11] There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused. 4 RTRA Act s 212(3). -- 3 of 3 --