Bundaberg ATSI Housing and Advancement Society v Eggmolesse [2014] QCATA 153

CITATION: Bundaberg ATSI Housing and Advancement Society v Eggmolesse [2014] QCATA 153 PARTIES: Bundaberg ATSI Housing and Advancement Society (Applicant/Appellant) v Averil Eggmolesse (Respondent) APPLICATION NUMBER: APL016 -14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Thomas, President DELIVERED ON: 23 June 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 18 December 2013 is set aside. 4. The claim field 6 December 2013 is dismissed. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where tenancy terminated because premises destroyed in floods – where tenant wanted to return to tenancy – where tenant served a notice to remedy breach – where tribunal ordered reinstatement of tenancy – whether tribunal had power to reinstate tenancy agreement – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 13, s 32, s 142(3)(a)(i) Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 94, s 426, s 429 -- 1 of 3 -- 2 Kellogg v Board of Trustees The Ipswich Girls’ Grammar School [2011] QCATA 210, cited Pickering v McArthur [2005] QCA 294, applied 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). REASONS FOR DECISION [1] Ms Eggmolesse rented a house in Ford Street, Bundaberg, for over 11 years. Not surprisingly, she regarded it as her home. In January 2013, Ford Street was devastated by flood water and Ms Eggmolesse became homeless. Bundaberg ATSI Housing and Advancement Society wrote to Ms Eggmolesse on 15 February 2013, advising her that Ford Street was deemed unliveable. On 18 February 2013, it issued a Form 12 - notice to leave, for that reason. [2] Ms Eggmolesse signed a new tenancy agreement for a different property on 25 May 2013. On 19 October 2013, Ms Eggmolesse issued a notice to remedy breach. Ms Eggmolesse stated that she wanted to return to Ford Street, but she wanted repairs to her ‘temporary housing’. On 6 December 2013, Ms Eggmolesse applied to the tribunal for an order that she be reinstated to Ford Street. A Magistrate, sitting as a member of the tribunal, ordered the lease be reinstated. [3] The Society seeks to appeal that decision. It says Ms Eggmolesse breached her tenancy agreement at Ford Street by damaging its walls, installing unapproved items and having unauthorised residents. It says the Ford Street tenancy agreement was terminated validly; that there is a new family in Ford Street, and that the tenancy is more suitable for a family; and, Ms Eggmolesse’s current accommodation suits her needs better. [4] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 The principles the appeal tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as his Honour then was) in Pickering v McArthur: There are numerous authorities, in varying language but with unvarying emphasis, that 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 learned Magistrate found that the Society’s letter of 15 February 2013 led to a reasonable inference that Ms Eggmolesse could return to the Ford Street property once it had been repaired. I disagree. The letter clearly 1 QCAT Act s 142(3)(a)(i). 2 [2005] QCA 294 at [3]. -- 2 of 3 -- 3 states that the current lease will end. It referred to the Form 12. Ms Eggmolesse was advised to find alternative accommodation. The Society’s letter concluded that Ms Eggmolesse would have first refusal if a unit became available in the near future. The message of the letter was that the tenancy was at an end. [6] Ms Eggmolesse did not challenge the Form 12. She could have asked the tribunal to continue the tenancy agreement but decrease the rent3 (to zero) while Ford Street was being fixed. She did not. Instead, she signed a tenancy agreement on a new premises. The learned Magistrate erred in finding that the letter gave Ms Eggmolesse an expectation that she could re-tenant Ford Street when it was fixed. [7] Because Ms Eggmolesse did not have a tenancy agreement with the Society for Ford Street, she could not issue a notice to remedy breach as to that tenancy. Her rights under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the “RTRA Act”) could only relate to the new tenancy. [8] The tribunal only has the powers given to it by legislation. Although the RTRA Act gives the tribunal general powers to make any order it considers appropriate, to resolve a dispute4 that power must be read in context. Chapter 6, Part 2, Division 3 sets out the tribunal’s powers. There is no power to reinstate a properly terminated tenancy agreement. [9] The tribunal’s duty to provide natural justice applies to the conduct of tribunal proceedings. The tribunal does not have a broader duty to ensure that all transactions between parties that come before it are fair. The tribunal has limited equitable jurisdiction and s 13 of the QCAT Act should not be interpreted as conferring any equitable jurisdiction on the minor civil disputes jurisdiction which would empower the tribunal to adjust parties’ legal rights in accordance with some undefined principle of fairness.5 [10] Regrettably, even though Ms Eggmolesse regarded Ford Street as her home, the fact is that she was only a tenant. Once the tenancy agreement was terminated, Ms Eggmolesse had no right to occupy Ford Street. The Society was entitled to terminate the tenancy agreement, and to later offer the tenancy to others. [11] The learned Magistrate had no power to reinstate Ms Eggmolesse’s tenancy agreement. Leave to appeal should be granted and the appeal allowed. The order of 6 December 2013 should be set aside and Ms Eggmolesse’s application dismissed. 3 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 94. 4 See, for example, s 429(1) 5 Kellogg v Board of Trustees The Ipswich Girls’ Grammar School [2011] QCATA 210 at [6] -- 3 of 3 --