Face 2 Face Foundation Pty Ltd & Ors v Brisbane City Council [2013] QCATA 252

CITATION: Face 2 Face Foundation Pty Ltd & Othrs v Brisbane City Council [2013] QCATA 252 PARTIES: Face 2 Face Foundation Pty Ltd, Christopher Newton and Larissa Newton (Appellants) v Brisbane City Council (Respondent) APPLICATION NUMBER: APL305-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Dr J R Forbes, Member DELIVERED ON: 9 October 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. It is ordered that the application for leave to appeal be deemed to include a submission that the application of the Brisbane City Council (as amended) filed on 23 April 2013 was made contrary to section 293 of the Residential Tenancies and Rooming Accommodation Act 2008 and that accordingly the Tribunal lacked jurisdiction to make the orders recorded herein on 8 July 2013. 2. The application for leave to appeal is granted. 3. The appeal is allowed. 4. The orders made herein on 8 July 2013 are set aside. 5. The application (as amended) of the Brisbane City Council filed on 23 April 2013 is dismissed. -- 1 of 7 -- 2 6. No order as to costs. CATCHWORDS: MINOR CIVIL DISPUTE – APPLICATION FOR LEAVE TO APPEAL - Residential Tenancies and Rooming Accommodation Act 2008 – lessor served Notice to Leave – first Notice defective – second Notice to Leave served – lessor applied for termination of lease – orders made for termination and issue of warrant of possession – whether proceedings for termination order may be instituted before expiry of Notice to Leave – whether application premature – whether there was jurisdiction to entertain the application – whether precondition for jurisdiction mandatory – application for leave to appeal – whether leave should be granted – whether orders should be set aside Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 9, 32, 64, 142 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), ss 5, 38, 291, 293, 341 Residential Tenancies Act 1997 (Vic), s 322 Bergin v Department of Housing and Public Works [2013] QCATA 190 Gelmini v Moriggia [1913] 2 KB 549 Baldry v Jackson [1976] 2 NSWLR 415 McPherson v Lawless [1960] VR 363 Wigan v Edwards (1973) 47 ALJR. 586 Varawa v Howard Smith Company Ltd (1911) 13 CLR 35 Wren v Mahony (1972) 126 CLR 212 Oakleigh Acquisitions Pty Ltd (in liq) & Ors v Steinochr [2005] WASCA 247 Queensland Building Services Authority v Macdonald [2012] QCATA 237 Emanuele & Ors v Hedley & Ors [1997] ACTSC 136 Bundy v Alberts (2007) V ConvR 54-735; [2007] VSC 90 Veitch v Director of Housing [2008] VSC 442. 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). -- 2 of 7 -- 3 REASONS FOR DECISION [1] Supporters of the Face 2 Face Foundation Pty Ltd (“the Foundation”) describe it as a not-for-profit organisation that finds accommodation for people referred to it by the Red Cross and the Salvation Army.1 [2] On 30 March 2012 the Foundation secured the latest in a series of short term leases of a property at 953 Rochedale Road, Rochedale. The previous landlord was one Mario di Carlo; now it is the Brisbane City Council (“BCC”). The term of the subject lease was one year from 15 February 2012. It is documented as a General Tenancy Agreement, on Form 18a, under the Residential Tenancies Act 19942. Identification of Parties [3] Item 2 of the lease, headed “Tenant”, lists as such “Mr Chris Newton” and the Foundation. In the section labelled “Name of the tenant” there appears “Face to Face Foundation”, and immediately below, under “Signature of the tenant”, “Larissa Newton”. Unfortunately this is conducive to the imprecise or inconsistent identification of parties, not only in the lease, but also in Tribunal documents. However, I am satisfied that Mr Newton and the Foundation are the proper applicants for leave to appeal. First Notice to Leave [4] On 22 November 2012 the BCC served a “notice to leave without ground”3 on Christopher Newton alone, nominating, as handover day4, 14 February 2013, the last day of the lease. [5] The February handover day came and went and the Foundation remains in occupation. So on 28 February 2013 the BCC initiated this proceeding5 as a Minor Civil Dispute. Second Notice to Leave [6] Subsequently the BCC realised that a Notice to Leave addressed only to Newton was inappropriate. So a fresh Notice to Leave, dated 15 April 2013, was addressed to the Foundation. On 23 April 2013 the BCC’s application was amended by joining the Foundation as co-respondent. Thus the handover day was postponed to 17 June 2013. The BCC’s application, as amended, predates the revised handover date by almost two months. So much is undisputed.6 1 Submissions of the Foundation 22 July 2013 at [40]. 2 See now the Residential Tenancies and Rooming Accommodation Act 2008 (“the RTRAA”). 3 RTRAA s 291. 4 I.e. the day when vacant possession of the premises is required to be, or will be, handed over to the lessor: RTRAA Schedule 2. 5 RTRAA ss 293, 341; QCAT Act s 9(1). 6 Submissions of the BCC filed 17 September 2013 paragraph 25. -- 3 of 7 -- 4 Primary Hearing [7] The hearing took place on 8 July 2013. The tenancy agreement was terminated as from midnight on that day, and a warrant of possession was granted to the BCC. [8] On 17 July 2013 Christopher Newton and the Foundation lodged an application for leave7 to appeal. [9] On 18 July 2013 the Tribunal granted a stay of the primary decision until further order. Proposed Grounds of Appeal [10] The application for leave sets out these grounds of appeal: a) Denial of natural justice, in that the Appellants were not permitted to complete their submissions at first instance; b) Absence of jurisdiction because the subject premises are not residential premises; c) Further and in the alternative to (b), that the subject lease is not a residential lease because there exist sub-leases to employees, within the meaning of section 38 of the RTRAA. [11] However, in their submissions8 the Appellants raise, as a further ground of appeal the following point of law, which I encapsulate as follows: The Tribunal had no jurisdiction to make the orders in question, because, in view of section 293 of the RTRAA, the BCC’s application was premature. [12] Section 293 reads as follows: Application for termination for failure to leave (1) The lessor may apply to [QCAT] for a termination order because – (a) the lessor gave a notice to leave the premises to the tenant; and (b) the tenant failed to hand over vacant possession of the premises to the lessor on the handover day. (2) An application under this section must be made within 2 weeks after the handover day. (3) An application made under this section is called an application made because of a failure to leave. [13] In the interests of justice and expedition I propose to amend9 the Appellant’s application for leave to appeal by adding to the grounds stated in Part C of their Form 39 a third ground of appeal, in the terms set out in 7 QCAT Act s 142(3)(a)(i). 8 Submissions of the Appellants filed 27 August 2013 paragraph 16. 9 QCAT Act s 64. A relevant document may at any time be amended on the initiative of the Tribunal: s 64(2). -- 4 of 7 -- 5 paragraph [11], above. No prejudice to the BCC will arise. The point was taken at the primary hearing,10 although as a question of jurisdiction it was not strictly necessary to do so. As noted above, the point was taken again in the Appellant’s submissions, and the BCC has noted and responded to it.11 The Appellants’ Submissions [14] Paragraphs 1-5 of the Appellant’s submissions are devoted to irrelevant and scandalous allegations of bias against people who do not have, and have not had, any connection with these proceedings, salted with a bald allegation of fraud against the BCC. They are not an attractive introduction to the submissions that follow, and it is not surprising that a person closely concerned with this matter is, or recently was, a vexatious litigant, so declared by the Supreme Court. The tone of the opening paragraphs is recaptured in paragraph 10, in which counsel for the BCC is described as “either desperate or dumb and incompetent”, and paragraph 42, where the BCC is wildly accused of encouraging “vile legal shenanigans”. [15] There is no substance in the allegation of denial of natural justice. Adjudicators have a demanding task, and work under considerable pressures of time and multiple applications. At a preliminary hearing on 20 May 2013, recorded in 24 pages of transcript Adjudicator O’Hanlon patiently sought to put the proceedings in a form better suited to a substantive trial. On 7 July 2013 by far the larger part of the hearing before Adjudicator Crawford was spent on submissions by the Appellants’ representative, and Mr Newton himself. There were occasional attempts to curb irrelevancies; they were perfectly proper. The time devoted to the matter, and to submissions that, in the main, were assertions rather than evidence, is reflected in a transcript of 47 pages. [16] The subject lease is entitled “Residential Tenancies Authority – General Tenancy Agreement – Residential Tenancies Act 1994”. No evidence has been led to prevent it from operating according to its tenour. Assertions that the lease is non-residential do not sit comfortably with the ad misericordiam plea that, if there is an eviction “twelve people, including two foster children will be made homeless”12 and Mr Newton’s statement that “My wife and I and our three children are residents ... at 953 Rochedale Road”.13 There is no acceptable evidence that the Newtons were sub-tenants within the meaning of section 38 of the RTRAA. On the contrary, the lease forbade sub-tenancies without the consent of the lessor14 and there is sworn evidence that no such consent was given.15 The Appellants’ second ground of appeal is not reasonably arguable, and I reject it. 10 Transcript of hearing 8 July 2013 page 1-36, lines 42-43. 11 Submissions of the BCC filed 17 September 201 paragraphs 24-25. 12 Submissions filed 22 July 2013, paragraph 2. 13 Submissions filed 22 July 2013 paragraph 55. 14 Clause 34(1). 15 Affidavit of Helenah Mac sworn 1 July 2013 paragraph 5. -- 5 of 7 -- 6 Was the Application Premature? [17] However, the Appellants’ submission based on section 293 of the RTRAA is another matter. The response of the BCC is brief: The final point is that proceedings “MCDT42/13 became void ab initio”. The real point that appears to be being made is that by reason of the application having been made prior to the “handover day” the application is void ab initio. [Section 293 is quoted and the submission continues.] In this case the application was made before the handover day which was 17 June 2013. However, such a step is not prohibited by section 293(2) – what is prohibited is the bringing of an application 2 weeks after the handover day.16 [18] In my view, this submission pays insufficient attention to the fact that the giving of notice and a failure to comply with the notice are cumulative conditions precedent to the right to apply for an eviction order. There must be a notice given, and then a failure to leave. It also glosses over the imperative “must” and the phrase “after the handover day” in subsection (2), and the words of subsection (3): “An application made under this section is called an application because of a failure to leave”.17 Significantly it is not called “an application in case there is a failure to leave”. A past non-compliance is clearly contemplated. [19] It would be strange if the legislature intended to set a strict outer limit to a landlord’s right to seek termination, as it does,18 but left the time for commencement open-ended. If that were the case, a landlord, so disposed, might wield a section 293 application as a Damoclean sword over a tenant’s head, and divert the resources of the Tribunal to the recording of a claim that might never be capable of pursuit. The better view, as I see it, is to treat section 293 as creating a 14-day window of opportunity immediately following the expiration of a notice to leave. That interpretation seems more consonant with the object of stating clearly the rights and obligations of tenants19, particularly in residential tenancies. An Incomplete Cause of Action [20] In effect, section 293 creates a statutory cause of action. The general principle is that a cause of action must be complete before it can support a valid writ or equivalent initiating process. Thus, in an action for moneys due – [U]ntil the expiration of [the due date] an action cannot be brought because there is no complete cause of action.20 16 Submissions of the BCC filed 17 September 2013 paragraphs 24-25. 17 Emphasis added. 18 Bergin v Department of Housing and Public Works [2013] QCATA 190. 19 RTRAA s 5. 20 Gelmini v Moriggia [1913] 2 KB 549 at 552 per Channell J. See also Baldry v Jackson [1976] 2 NSWLR 415 at 417; McPherson v Lawless [1960] VR 363 at 366; Wigan v Edwards (1973) 47 ALJR 586, at 592, 596; Varawa v Howard Smith Company Ltd (1911) 13 CLR 35; Wren v Mahony (1972) 126 CLR 212; Oakleigh Acquisitions Pty Ltd -- 6 of 7 -- 7 [21] Therefore: It is not possible by amendment to add a cause of action not in existence at the date of a writ.21 [22] The BCC’s submission does not closely analyse section 293, or cite any authority for the BCC’s interpretation of it. In fairness, it does appear that there is no authority directly in point, but assistance is offered by a decision of the Supreme Court of Victoria in Bundy v Alberts22. The Victorian legislation23 applied in Bundy differed in detail from our section 293, in that it required the application to be made after the service of a notice, but did not stipulate that the application must follow a failure to comply with the notice. (In this respect, the Queensland legislation may be seen as more sensible and economical.) In fact the landlord in Bundy served the notice and the application simultaneously. Brushing aside an argument that this procedure was a common “industry practice”, the Court held that the application was premature, that the prior service of a notice was a mandatory precondition for jurisdiction, and that the tribunal below had no jurisdiction to proceed. In my view the same considerations apply, mutatis mutandis, to the premature application in this case. [23] It follows that the orders made herein on 8 July 2013 were made without jurisdiction, and are of no effect. Their making was an error of law. The application for leave will be granted, the primary application will be dismissed, and the orders based upon it set aside. I am bound by law to draw these conclusions, regardless of the manner in which the Appellants’ case was conducted. ORDERS: 1. It is ordered that the application for leave to appeal be deemed to include a submission that the application of the Brisbane City Council (as amended) filed on 23 April 2013 was made contrary to section 293 of the Residential Tenancies and Rooming Accommodation Act 2008 and that accordingly the Tribunal lacked jurisdiction to make the orders recorded herein on 8 July 2013. 2. The application for leave to appeal is granted. 3. The appeal is allowed. 4. The orders made herein on 8 July 2013 are set aside. 5. The application (as amended) of the Brisbane City Council filed on 23 April 2013 is dismissed. 6. No order as to costs. (in liq) & Ors v Steinochr [2005] WASCA 247 at [79]; Queensland Building Services Authority v Macdonald [2012] QCATA 237 at [31]. 21 Emanuele & Ors v Hedley & Ors [1997] ACTSC 136 at [76]. 22 (2007) V ConvR 54-735; [2007] VSC 90. See also Veitch v Director of Housing [2008] VSC 442. 23 Residential Tenancies Act 1997 (Vic) s 322. -- 7 of 7 --