Evans v Saarman [2013] QCATA 58

CITATION: Evans v Saarman [2013] QCATA 58 PARTIES: Simon Evans (Applicant/Appellant) V Tony Saarman Pauline Saarman (Respondents) APPLICATION NUMBER: APL272 -12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 25 February 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. Paragraph 1(b) order of 27 July 2012 is amended to read that Simon Evans shall pay Pauline and Tony Saarman $20.00 by 11 March 2013. CATCHWORDS: RESIDENTIAL TENANCY – where dispute resolution request lodged by tenant – where no dispute resolution request lodged by lessor – where separate claims by tenant and lessor – whether lessor can apply to tribunal for compensation - whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act 2008 ss416, 419, 429, 431 Big 4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277 -- 1 of 3 -- 2 APPEARANCES and REPRESENTATION (if any): The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] Mr Evans rented a room in a house owned by Mr and Mrs Saarman. Mr Evans left and brought an application for $5,920 compensation. The Saarmans brought their own application for compensation, claiming $1,969.90. An adjudicator heard the two applications together. She dismissed Mr Evans’ claim but accepted part of the Saarman’s claim. The adjudicator ordered that Mr Evens pay Mr and Mrs Saarman $562.95, $520 of which would be paid from the bond. [2] Mr Evans wants to appeal that decision. He says that Mr and Mrs Saarman did not lodge a dispute resolution request as required so the application should be dismissed. He disputes his responsibility for damage to the patio pole and carpet cleaning. He says that Mr and Mrs Saarman denied him access to his room. He disagrees with the learned Adjudicator’s finding that his claims for compensation are statute barred. He says that, if the claims are statute barred, then that principle should also apply to the claims by Mr and Mrs Saarman. [3] Because this is an appeal from a minor civil dispute, Mr Evans must seek leave to appeal. The tribunal may grant leave if the dispute raises a question of general importance and the public would benefit from a decision on that question. It may also grant leave if Mr Evans shows a reasonably arguable case of error and a reasonable prospect that he will obtain substantive relief if the error is corrected. [4] Section 416 of the Residential Tenancies and Rooming Accommodation Act 2008 states that a party cannot apply to the tribunal about an issue unless that party has first made a dispute resolution request. Mr Evans points out that he made a request but Mr and Mrs Saarman did not. [5] It is an artificial reading of s416 to require both parties to make a dispute resolution request. The purpose of the section is to ensure the parties have first accessed the dispute resolution process offered by the Residential Tenancies Authority. If one party has made a dispute resolution request, the RTA will refuse another party’s request to conciliate about the same issue. By default, therefore, a second dispute resolution request will end automatically within the meaning of s416(1)(a)(i). The purpose of the section is achieved through conciliation on the first request and there is simply no utility in a second request. [6] If a party makes a dispute resolution request, and then an application to the tribunal, as Mr Evans did, then the tribunal has jurisdiction. The tribunal can decide different applications at the same time1. It can make any order it 1 S431 -- 2 of 3 -- 3 considers appropriate to resolve the dispute2 including an order for compensation if the parties have reasonable notice of the claim. [7] These applications were heard together. Mr Evans’ own material shows that that the RTA conciliation included a discussion about both parties’ claims. It follows, therefore, that the learned Adjudicator could have made exactly the same order in Mr Evans’ application as she did in Mr and Mrs Saarman’s application. Mr Evans’ appeal against the learned Adjudicator’s decision to give Mr and Mrs Saarman compensation for breach of agreement must fail. [8] An application for breach of agreement must be made within 6 months after a person becomes aware of the breach3. [9] The RTRA Act: “is intended to be prescriptive and all-embracing in governing the procedure for determination of disputes arising under residential tenancies”4. Because the RTRA Act is intended to be prescriptive, it can, and does, alter ordinary contractual rights. Mr Evans was aware of the breaches long before he filed his application for compensation. Because he did not bring a claim within 6 months of being aware of the breach, he cannot now make a claim. [10] Mr Evans claims that Mr and Mrs Saarman’s claim is also affected by the 6 month time limit. He is partly correct. The claim for electricity arises from Mr Evans’ failure to pay an electricity charge from June 2011. That breach occurred more than 6 months before Mr and Mrs Saarman made an application and, to that extent, ($22.95) leave to appeal should be granted, and the appeal allowed. [11] Mr and Mrs Saarman also knew about the damage to the paintwork and the mattress well before the 6 month time limit expired. However, Mr Evans was not in breach of the tenancy agreement unless and until he failed to leave the premises and inclusions in the same condition that they were in at the start of the tenancy5. Right up until that point, Mr Evans had the opportunity to attend to the defects and he was not in breach of the agreement. He vacated in February 2012. Mr and Mrs Saarman filed the application in April 2012. These claims are not affected adversely by the 6 month time limit. [12] The same argument applies to the shortfall in rent. Until Mr Evans vacated, and Mr and Mrs Saarman applied the rent in advance against rent due, to create a shortfall, there was no breach. [13] Leave to appeal is granted. The appeal is allowed. Paragraph 1(b) order of 27 July 2012 is amended to read that Simon Evans shall pay Pauline and Tony Saarman $20.00 by 11 March 2013. 2 S429 3 RTRA Act s419 4 Justice Wilson SC Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277 at [42] 5 S188 -- 3 of 3 --