Adams v Scowcroft [2012] QCATA 25

CITATION: Adams v Scowcroft [2012] QCATA 25 PARTIES: Debra Judith Adams (Applicant) v Debbie Mary Jane Scowcroft (Respondent) APPLICATION NUMBER: APL006-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 15 February 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Appeal allowed; 2. The decision of the Tribunal of 21 December 2011 is set aside. CATCHWORDS: APPEAL – LEAVE TO APPEAL – RESIDENTIAL TENANCY – QUESTION OF FACT – where the agent of the landlord issued the tenant a Notice to Leave – whether the Notice to Leave was or was not properly completed APPEAL – LEAVE TO APPEAL – RESIDENTIAL TENANCY – QUESTION OF LAW – where the agent of the landlord issued the tenant a Notice to Leave – whether the Notice to Leave was valid Queensland Civil and Administrative Tribunal Act 2009, ss 2, 147 Residential Tenancies and Rooming Accommodation Act 2008, ss 291, 292, 293, 326, 329(2)(k), 349(1), 416, 419, Schedule 2 Council of the City of Wollongong v Cowan (1955) 93 CLR 435, cited -- 1 of 5 -- 2 Lowe v Aspley [2010] QCATA 59, cited APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] Since June 2010 Ms Adams has occupied premises at 38 Keystone Street Beenleigh. Ms Scowcroft is the owner‟s letting agent. The tenancy was formalised in a General Tenancy Agreement under the Residential Tenancies and Rooming Accommodation Act 2008 (RTRAA), signed on 31 May 2010 for the period from 1 June 2010-30 November 2011. [2] On 8 September 2011 the agent gave Ms Adam‟s a Notice to Leave on or before the last date under the agreement, namely, 30 November 2011. Miss Adams did not leave and the agent applied to QCAT for an order for termination and for compensation for rent arrears, excess water charges, and repair and cleaning costs. [3] The matter came on for hearing before a QCAT Member sitting in the Minor Civil Disputes jurisdiction on 21 December 2011. Both parties appeared. After the hearing, the Member ordered the issue of a Warrant of Possession after 9 January 2012, to be effective for 14 days. He also ordered that Ms Adams pay „part compensation‟ of $509.00 relating, it appears, to arrears of rent. [4] Ms Adams has sought leave to appeal that decision, as well as an order staying its operation until the appeal is finally decided. On 11 January 2012 QCAT‟s Acting President directed that both applications be heard and determined on the papers, and that the parties exchange and file written submissions. The parties have done so. [5] Ms Adams submissions raised two principal grounds: that the Notice to Leave was invalid and should have been set aside; and, that the Tribunal had no jurisdiction to award compensation. [6] The Tenancy Agreement was produced to the Member. It was, on its face, a „fixed term agreement’1, ending on 30 November 2011. Under clause 6 of the Agreement, the tenancy subsisted unless a Notice to Leave was given before the last day of the fixed term. There is nothing in the legislation or the Agreement which prevented the lessor requiring that the tenancy end at the expiration of the fixed term. [7] The RTRAA contains, however, provision for the giving of Notices to Leave even in the case of fixed term agreements.2 Under s 329(2)(k) the 1 A term defined in the Residential Tenancies and Rooming Accommodation Act 2008, Schedule 2. 2 Residential Tenancies and Rooming Accommodation Act 2008, s 326. -- 2 of 5 -- 3 notice expires on the later of either two months after the notice is given, or the day the term of the agreement ends. Here, a notice given on 8 September 2011 would, therefore, expire on the last day of the fixed term – 30 November 2011. It was not in issue at the hearing before the learned member that Ms Adams had not left the premises by that date and, indeed, that she remained in occupation. As the audio tape of the hearing reveals, she said she had been unable to find alternative accommodation. [8] The form of Notice to Leave (Form 12), promulgated under the RTRAA has, makes provision for the party giving the notice to specify whether it is with or without grounds.3 On the copy of the form presented to the QCAT Member at the hearing the „without grounds‟ box had been marked with the result that, as a note on the form shows, the giver did not need to specify a ground or reason in the following section, paragraph 5. Nevertheless, as the form shows, Ms Scowcroft did so. Ms Scowcroft inserted the words “end of lease agreement – owner is not renewing your lease. We are required to give you 2 months notice, I have given you a few extra weeks as well”. [9] A Notice to Leave without grounds is permitted under s 291 of the RTRAA. That section also provides, however, that a lessor cannot give a Notice if the tenant has already applied to the Tribunal for an order, or complained to a government entity about something the lessor has done, or not done, or taken some other action to enforce the tenant‟s rights; or, if the giving of the notice by the lessor would constitute “…taking retaliatory action against the tenant”4. [10] Under s 292 a tenant who believes a notice to leave without ground offends s 291 may apply, within 4 weeks after receiving the notice, to QCAT for an order setting it aside. Ms Adams did not do so. [11] Under s 293 a lessor who was given a notice to leave, but the tenant has not left, may apply within two weeks after the handover day for a termination order. Ms Scowcroft‟s application to QCAT was filed at Beenleigh on 2 December 2011, just a few days after the tenancy expired on 30 November and within the statutory period. [12] In her submissions in support of her application for leave to appeal, and for a stay, Ms Adam‟s now attaches what appears to be the original copy of the Notice to Leave of 8 September 2011. As her submissions point out, the box beside the „without grounds‟ section in [4] does not contain a mark of the kind that appears in the photocopy produced at the hearing before the learned Member. The audio recording of the hearing before him makes no reference to the document, or any discrepancy in it. 3 Residential Tenancies and Rooming Accommodation Act 2008, Form 12 Notice to Leave, at [4]. 4 Residential Tenancies and Rooming Accommodation Act 2008, s 291(3). -- 3 of 5 -- 4 [13] The submissions from Ms Scowcroft assert that the Notice to Leave is valid and say that it was issued „without grounds‟ but make no attempt to answer Ms Adams‟ submissions about the discrepancy. [14] The RTRAA is prescriptive about the requirements for issuing notices, and commencing proceedings.5 While the state of the evidence about the two difference versions of the Notice to Leave is unsatisfactory, the apparent absence in [4] of what appears to be the original document (now annexed to Ms Adams‟ submissions) of anything that signifies whether the Notice is given with or without grounds is something that offends s 326. That section provides that a Notice to Leave Premises must be in the approved form and state the ground on which the notice is given, or that it is given without grounds.6 [15] Hence, the photocopy of the document before the learned Member complies with s 326(1)(e)(ii) of the RTRAA, but it appears that the original does not. While the Tribunal has power to excuse defects in a Notice to Leave if it is appropriate to do so in all the circumstances of the case7, I do not think this is an appropriate case for the exercise of that discretion. While it is regrettable that the original notice has only been adduced in the course of the present application for leave to appeal, it is not at all clear that the photocopy of the notice was seen by the tenant at the hearing, or that she had the opportunity to discern the discrepancy. Certainly, the audio recording does not suggest the Notice came up for discussion at all. [16] Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument is premised; 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 might obtain further substantive relief. However, leave may also be attracted where evidence that might have affected the outcome of the hearing was not reasonably available at the time; the new evidence is credible; and, it may well have affected the result.8 [17] This is a case in which the applicant for leave has raised sufficient concern about relevant evidence before the original Tribunal Member to warrant granting leave to appeal. [18] That conclusion is reinforced by what was, with respect, another error made by the learned Member. It is clear from the recording of the proceedings that the order that Ms Adams pay „part compensation‟ of $509.00 was made with reference to the lessor‟s agent‟s claim for arrears of rent. A failure to pay rent is a breach of the tenancy agreement and might have been the subject of an application under s 419 of the RTRAA, 5 Lowe v Aspley [2010] QCATA 59 at [10]. 6 Residential Tenancies and Rooming Accommodation Act 2008, s 326(1)(e). 7 Residential Tenancies and Rooming Accommodation Act 2008, 349(1). 8 Council of the City of Woollongong v Cowan (1955) 93 CLR 435. -- 4 of 5 -- 5 but only if the lessor or lessor‟s agent had first made a „dispute resolution request‟ under s 416 of the RTRAA. As Ms Adams‟ submissions point out, the application before the learned Member was an urgent one for a termination order under s 293 of the RTRAA. The other claims in the application to the Tribunal were not urgent and, in the absence of evidence of compliance with s 416 the Tribunal had no jurisdiction to make the compensation order. [19] Ms Adams‟ appeal is properly categorised as an appeal against a decision on a question of mixed law and fact. It is a question of fact whether the Notice to Leave was or was not properly completed in paragraph 4 and, if it was not, the question whether or not it was invalid is a question of law. [20] Under s 147 of the QCAT Act appeals on questions of mixed law and fact must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the Appeal Tribunal. In deciding the appeal, the Appeal Tribunal may confirm or amend the decision, or set it aside and substitute its own decision. [21] The uncertainty, and the very limited nature of the evidence before the Appeal Tribunal about the contents of the Notice to Leave, might be thought to make it appropriate that the matter be re-listed for further hearing about that issue. However, the fact is that Ms Adams‟ other ground of appeal concerning the invalidity of the order for compensation already entitles her to succeed in the appeal proper. For these reasons the appropriate order is to grant Ms Adams leave to appeal; allow her appeal; and, set aside the orders of the learned member made on 21 December 2011 entirely. [22] In light of that conclusion her application for a stay is superfluous. -- 5 of 5 --