Costello v Ashworth [2012] QCATA 143

CITATION: Costello v Ashworth [2012] QCATA 143 PARTIES: Edward Costello (Applicant/Appellant) v David Ashworth (Respondent) APPLICATION NUMBER: APL026-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 16 August 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is granted. 2. The decision of the Tribunal dated 27 January 2012 is set aside and instead application 2525/11 is dismissed. CATCHWORDS: Residential tenancy – where Tribunal made a termination order – where applicant listed the respondent on the tenancy database – where application reopened and respondent brought an application for compensation for wrongful listing on the tenancy database – whether Tribunal had jurisdiction to award compensation in the circumstance Queensland Civil and Administrative Tribunal Act 2009, s 142(3) Residential Tenancies and Rooming Accommodation Act 2008, ss 52, 291, 459, 460 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION [1] This proceeding has somewhat of a tortuous history. Mr Costello is the owner of a residential home unit in Deception Bay. Mr Ashworth is his tenant and has been in the premises since March 2010. In mid 2011 Mr Ashworth fell into arrears and as a consequence Mr Costello filed an application in the Tribunal in proceeding 1807/11 seeking a termination order and payment of arrears of rent. [2] That application came on for hearing on 16 September 2011 and, I infer although there is no direct explanation for this, Mr Ashworth did not appear and an order was made terminating the tenancy and for Mr Costello to pay arrears of rent. A warrant for possession also issued. [3] On 4 October 2011, on the day the warrant was to be exercised, Mr Ashworth applied to the Tribunal for a stay of the order of 16 September 2011 and also for a reopening of the proceeding. The stay was granted and the reopening application was heard on 31 October 2011. [4] The proceeding was reopened and the Tribunal then made an order that Mr Costello pay the arrears of rent of $150.00 by the close of business on that day and $400.00 per week from 4 November 2011. The application was otherwise dismissed. The effect of that order, because the matter was reopened, was that the order for termination was of no force and effect. [5] Some disputation continued, and that dispute was referred to the Residential Tenancies Authority and on 9 November 2011 the Residential Tenancies Authority issued a notice of unresolved dispute. That notice then allowed either party to commence proceedings in the Tribunal. [6] On 11 November 2011 Mr Costello issued a notice to leave without ground. [7] Then, on 9 December 2011, Mr Ashworth commenced a proceeding in the minor civil disputes jurisdiction asking for orders that the notice to leave 9 November 2011 be set aside, an order that the Tribunal remove his name from the tenancy database (TICA) listing and removal costs for the removal of his belongings from the unit in the sum of $3,163.00. There was also a claim for unlawful rent increase of $390.00. [8] The matter came on for hearing before a Tribunal Member on 27 January 2011 and after hearing from the parties he ordered that Mr Costello pay to Mr Ashworth $2,903.50 which was made up of $50.00, rent reduction and the balance for removal and storage costs. [9] From that decision Mr Costello has filed an application for leave to appeal or appeal. The grounds of appeal are somewhat broad but generally that the compensation order was harsh and unjust and contrary to the Residential Tenancies and Rooming Accommodation Act 2008. Also it is contended that the TICA listing was lawful in accordance with the -- 2 of 4 -- 3 legislation on the basis of the order made by the Tribunal on 16 September 2011 terminating the tenancy. [10] Because this is an appeal from a decision in the minor civil disputes jurisdiction leave to appeal is necessary. Leave will only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? The TICA listing [11] It is somewhat surprising that Mr Costello has included this as a ground of appeal because the order made on 27 January 2012 removing Mr Ashworth’s name and personal information from the database, was made with Mr Costello’s consent. Compensation [12] The basis for the application for compensation was as a result of an unlawful TICA listing. The affect of this was that when the first warrant for possession was about to be executed, Mr Ashworth moved his goods out of the unit and into storage. They remained in storage until the time of the hearing and the claim was $3,163.00. [13] In the reasons for the decision the learned Member not only relied on the TICA listing, but also the Notice to Leave without grounds. Mr Ashworth argued that s 291 prevented the lessor from issuing a Notice to Leave without grounds because he had taken action to enforce his rights under the tenancy agreement.1 However, the Notice to Leave was issued on 11 November 2011, was set aside by the learned Member but at all times Mr Ashworth remained in the unit and did not incur any loss as a consequence of that invalid notice. [14] That then leaves the only other ground for compensation being the unlawful TICA listing, and whether it was a breach of the tenancy agreement. The learned Member had regard to s 52(1) of the RTRA Act which provides that any duty imposed or entitlement given under the Act is taken to be a term of the residential tenancy agreement. [15] Chapter 9 of the RTRA Act deals with the tenancy database. Section 459 imposes a restriction on listing in that a “listing person” must not list another person on the database unless there is compliance with subsection 1. One of those requirements is that the listing person must give written notice to the other person of the intention to enter the personal information of the other person into the database. Although it is 1 Residential Tenancies and Rooming Accommodation Act 2008, s 291(2)(b)(ii). -- 3 of 4 -- 4 not clear from the documents filed in the minor civil dispute proceeding, there is no evidence to suggest that Mr Ashworth was informed by Mr Costello’s of his intention to list him on the database. [16] During the course of the hearing Mr Ashworth gave evidence that he first became aware of the listing when he applied to Ray White Paddington to rent a property. He was advised by them that he was listed on TICA. That was at the point when the warrant was about to be executed. Not being able to secure another property he decided to have removalists collect his goods and put them into storage. [17] The argument before the learned Member was that because s 459 imposes strict requirements on the listing person to comply with subsection (1) and because that is a term of the tenancy agreement under s 52 any breach of that term could result in damages or compensation. The learned Member adopted that submission and made the assessment of compensation of $2,903.50. [18] However, the rest of chapter 9 of the RTRA Act sets out what is to occur if there is a breach of s 459. Section 460 allows a tenant, who contends that there has been a breach of s 459, to apply to the Tribunal about the breach. The Tribunal can order the other person to take steps to remedy the breach and make any other order it considers appropriate. Whether the last order permits an order for compensation has been considered by the Appeal Tribunal in Elfbest trading as Southgate Realty v Dynam & Hanson2. In that case the respondents sought compensation for a wrongful listing which resulted in extra storage and removal costs, as well as the cost to return to QCAT for extra hearings. It was decided that as compensation was specifically provided for in s 464 of the RTRA Act compensation did not fall within the rights given to a person under s 460(3)(b) because chapter 9 exclusively deals with the tenancy database and only provides for compensation in certain circumstances. [19] Further, the listing occurred after the tenancy agreement had been lawfully terminated by the Tribunal on 16 September 2010. In those circumstances, if it was a term of the tenancy agreement under s 52(1), the agreement was no longer of any force or effect and therefore the listing could not have been a breach of one of its terms. Those circumstances did not include those currently under consideration. [20] I have therefore come to the view that the learned Member fell into error by allowing compensation for breach of s 459 and therefore, leave to appeal should be granted. It follows from these reasons given that the appeal should be allowed and the decision below set aside and that the application for compensation be dismissed. 2 [2012] QCATA 7. -- 4 of 4 --