Clark v Sherriff [2013] QCATA 306

CITATION: Clark v Sherriff [2013] QCATA 306 PARTIES: Mr Dale Clark & Mrs Annettea Clark (Applicant/Appellant) v Mr Clay Sherriff & Mrs Aimee Sherriff (Respondent) APPLICATION NUMBER: APL255-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Mr Charles Brabazon QC, Judicial Member DELIVERED ON: 29 October 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Grant leave to appeal. 2. The appeal is allowed. 3. Set aside the order of 20 May 2013. 4. Stay further proceedings until the parties comply with s 416 of the Residential Tenancies and Rooming Accommodation Act, and until a Notice of Unresolved Dispute is lodged with QCAT. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – DISPUTE RESOLUTION – where respondents occupied applicants‟ property – where terms of agreement were wholly oral – where applicants contend respondents damaged the property – where applicants brought application in Tribunal for cost of repairs – where application framed as claim for unliquidated damages – where Tribunal dismissed application for want of jurisdiction – where applicants seek leave to appeal that decision – where matter may be heard as non-urgent residential tenancy application in the Tribunal‟s Minor Civil Disputes jurisdiction – where s 416 of the Residential Tenancies and Rooming Accommodation Act 2008 requires that a lessor may apply to the -- 1 of 4 -- 2 Tribunal only if they have first made a dispute resolution request – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 6, 7, 11, 12(4)(a) Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 10, 12, 39, 53, 61, 85, 419(4), 414A, 416 and 419 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 (QCAT Act). REASONS FOR DECISION [1] Mr and Mrs Clark own a house near the Glasshouse Mountains. They agreed that Mr and Mrs Sherriff could stay there, until they moved into another house. [2] The Sherriffs and their children occupied the Clark‟s house from late September 2012 to 18 January 2013. [3] The Clarks say that the house was damaged by the Sherriffs. They want to be paid $8,597.85, the cost of repairs. No bond was paid. There was no agreement in writing. The Sherriffs paid $200 cash for each week. [4] The Clarks started a QCAT claim to recover the $8,597.85. It came before the Caloundra Magistrate Court on 20 May 2013. The Magistrate was sitting as a QCAT Member. She had looked at the papers, before hearing the claim. The Clarks and the Sherriffs were present in the courtroom. They appeared without legal representation. [5] The Magistrate understood that the Clarks‟ claim was for damages to be assessed, rather than a minor debt claim for a certain amount. In that case, QCAT has no jurisdiction to deal with the claim.1 [6] The Magistrate was aware of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA Act). She said to the parties, ‘… it’s very clear to me that all of you were proceeding on the basis that this was not a tenancy, so its not a minor debt, nor a Residential Tenancies and Rooming Accommodation claim‟. [7] Earlier, the Magistrate had understood, correctly, that Mrs Clark was asserting that this was not a tenancy under the Act, because there was no tenancy agreement, no bond, and that it was an arrangement where the Sherriffs stayed in the house for a period when it was vacant. 1 QCAT Act ss 11, 12(4)(a). -- 2 of 4 -- 3 [8] So, the Magistrate dismissed the claim, saying that the Clarks should be suing in the Magistrates Court. [9] It is necessary to turn to the RTRA Act. “Residential premises” are premises used, or intended to be used, as a place of residence, or mainly as a place of residence.2 A “residential tenancy agreement” is defined as an agreement giving another person a right to occupy residential premises as a residence. The agreement can be wholly oral, or wholly implied.3 [10] The parties cannot agree to avoid the effect of the RTRA Act.4 The rent may be paid in cash.5 It does not matter that there may be no rental bond.6 [11] A tenancy agreement need not be in writing, to be enforceable.7 [12] See s 39 of the RTRA Act for the meaning of a “tenancy dispute”. The overall effect of the legislation is clear enough – the agreement was a residential tenancy agreement, despite Mrs Clark‟s efforts to make it something else. [13] The papers on the QCAT file reveal two other difficulties, which were not mentioned at the hearing – the QCAT form used by the Clarks, and the need for dispute resolution. Those issues are regulated by the RTRA Act, and have to be considered. Firstly the appropriate form. The Clarks‟ claim is made in a QCAT form, Number 3 (version 2) – “application for minor civil dispute – minor debt”. It was lodged on 5 February 2013. [14] Section 414A of the RTRA Act says that an application „must be in the way provided by the QCAT Act‟. The QCAT Act requires applications for residential tenancy compensation to be in Form 2 – see the end notes to the QCAT Act, para 8. [15] Both parties have proceeded on the understanding that the claim has been properly made by the Clarks. The Sherriffs have responded to it. The QCAT registry staff have not questioned it. A QCAT Senior Member has made a directions order on the implicit understanding that the application is effective. [16] Neither party has been disadvantaged. A demand that the application process start again would mean more delay and expense. A demand that the Clarks start again would be a victory for form over substance. The irregularity may be overlooked. The RTRA Act does not compel the conclusion, that the present proceedings are ineffective. 2 RTRA Act s 10. 3 Ibid s 12. 4 Ibid s 53. 5 Ibid s 85. 6 Ibid s 419(4). 7 Ibid ss 416, 419. -- 3 of 4 -- 4 [17] Secondly, there is an issue about dispute resolution. Section 416 of RTRA says this: a) the lessor or tenant under a residential tenancy agreement … may apply under this Act to (QCAT) about an issue only if the applicant has first made a dispute resolution request about the issue and; b) a party refuses to participate, or continue to participate, in the conciliation process; or c) the parties participate in the conciliation process but do not reach an agreement on resolving the dispute. [18] The requirements of the RTRA Act are dominant – ss 6 & 7 of the QCAT Act say that. The RTRA Act must be applied here. The result is that the QCAT notice of mediation dated 6 March 2013, and Ms Clark‟s letter of 11 March 2013, declining mediation, are ineffective. The only way forward is for the Clark‟s to now make a dispute resolution request. Ms Clark, at present, does not have the power to decline participation in a genuine effort to observe the statutory requirement. [19] In any case, experience shows that most disputes can be resolved, even if there are strong feelings about the merits of the dispute. That is why contemporary legislation, as in this case, has such emphasis on resolution procedures. [20] Mrs Clark will need to apply to a RTA to start the required procedure. I believe that she will need to lodge a Form 16 Dispute Resolution Request. In the event that the dispute is not settled, she will need to obtain a Notice of Unresolved Dispute, before any QCAT proceedings can continue. [21] These are the appropriate orders: a) Grant leave to appeal. b) The appeal is allowed. c) Set aside the order of 20 May 2013. d) Stay further proceedings until the parties comply with s 416 of the Residential and Rooming Accommodation Act, and until a Notice of Unresolved Dispute is lodged with QCAT. -- 4 of 4 --