Elfbest Pty Ltd v Dynan and Anor [2012] QCATA 7

CITATION: Elfbest Pty Ltd v Dynan and Anor [2012] QCATA 7 PARTIES: Elfbest Pty Ltd t/as Southgate Realty (Applicant/Appellant) v Mr Kim Charles Dynan (First Respondent) Rebecca Hansson (Second Respondent) APPLICATION NUMBER: APL338-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 24 January 2012 DELIVERED AT: Brisbane ORDERS MADE: The order of the Tribunal made on 5 September 2011 that the appellant pay the respondents $1,995.12 is set aside. CATCHWORDS: Residential Tenancy Matter – where applicant failed to comply with the listing requirements to list the respondents on a tenancy database – where the Tribunal ordered the listing be removed – where Tribunal ordered compensation for the wrongful listing – whether Tribunal had power to award compensation – where RTRA Act makes no provision for compensation in the circumstances Queensland Civil and Administrative Tribunal Act 2009, s 142(3) Residential Tenancy and Rooming Accommodation Act 2008, ss 459, 460, 461, 463, 464 APPEARANCES and REPRESENTATION (if any): -- 1 of 5 -- 2 This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Southgate Realty were the letting agents for a property rented by Mr Dynan and Ms Hansson at 4/24 Park Street, Labrador. Mr Dynan and Ms Hansson vacated the premises on 23 April 2010. The bond, which covered most of the arrears of rent, was paid to the lessor but unbeknown to Mr Dynan and Ms Hansson there remained an outstanding amount of $297.00. [2] At the expiration of the tenancy Southgate did not tell Mr Dynan or Ms Hansson that there was an outstanding amount of $295.00 by the usual means of communication, that is text message or email but instead chose to write a letter, dated Thursday 20 May 2011, to the forwarding address noted on the vacating envelope at 2/5 Myer Street, Southport, which was dated 23 April 2011. The letter gave notice of “intended listing to tenancy database”. It contended that the outstanding rent of $297.14 was in breach of the tenancy agreement and if it was not paid, Mr Dynan and Ms Hansson would be listed on a database known as TICA which would hinder their chances of renting another property in the future. The money was not paid and the tenants were listed on TICA. [3] To correct this, the tenants brought an application in the minor civil disputes jurisdiction of the Tribunal for an order that their names be removed and that they be awarded compensation for the wrongful placement of their names on the database. [4] When the matter first came on for hearing, Southgate did not appear and the Tribunal made an order in their absence that Southgate pay to Mr Dynan and Ms Hansson $1,495.12 by way of compensation. That decision was reopened and the matter came on for further hearing before the same Tribunal Adjudicator on 5 September 2011. [5] After hearing evidence from both parties, the learned Adjudicator ordered that Southgate pay to Mr Dynan and Ms Hansson $1,995.12. The increase in the claim was in respect of extra expenses incurred by the tenants in prosecuting their application after it had been reopened. [6] From that decision Southgate have filed an application for leave to appeal or appeal. Leave to appeal is necessary because this is an appeal from a decision in the minor civil disputes jurisdiction.1 [7] Leave to appeal will ordinarily 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 1 Section 142(3). -- 2 of 5 -- 3 sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [8] The grounds of appeal are that in listing Mr Dynan and Ms Hansson with TICA, Southgate failed to comply with the requirements of section 459 of the Residential Tenancy and Rooming Accommodation Act 2008. [9] Southgate contend that they have strictly complied with the provisions of section 459 and were therefore entitled to place Mr Dynan and Ms Hansson on the database. That was the issue that was contested before the learned Adjudicator because if it is found that there is a breach of section 459, the Tribunal can:- a) Order a person to take stated steps to remedy the breach; or b) Make another order if it considers appropriate2. [10] One of the mandatory steps under section 459 is that the listing person has given written notice to the other person about the personal information it is proposed to enter or give for entry into the database.3 [11] The learned Adjudicator in her reasons concluded that Southgate did not comply with the subsection even though Ms Smith gave evidence that she had sent the letter. The learned Adjudicator accepted the evidence of Ms Hansson that they had not received the letter which was sent nearly four weeks after the tenancy was terminated. During the course of the hearing she specifically asked Ms Smith if she had any proof that the letter was sent for instance a mail book or some other such documentation. None was produced. [12] It may be thought that such a request was erroneous but that request must be considered in the circumstances of the relationship between these two parties. Ms Smith herself insisted that all communication between her office and the tenants be by way of email. She told the Tribunal that she had 50 properties to manage and the only way she could keep up to date with each property, was through email. She also used text messages extensively particularly if the rent was behind for some days. She gave evidence that she specifically told “Rebecca (Hansson) on different occasions to email her or SMS or send it in writing.”4 [13] On the basis of the expected arrangement for communication it seems odd, and this was inferred by the learned Adjudicator, that with such an important document she chose not to email it or at least send an email to say that she was about to send the letter in the mail and it related to the listing on the database. The learned Adjudicator was further critical in that Southgate not only did not email the letter, it also did not participate in the mandatory mediation processes through the Residential Tenancies Authority. Further Southgate made no attempt to telephone the tenants and inform them of the 2 RTRA, s 460(3). 3 RTRA, s 459(d)(i). 4 Transcript page 11 line 1. -- 3 of 5 -- 4 outstanding rent in circumstances where the learned Adjudicator felt confident, that had the tenants been aware of the outstanding rent they would have readily paid it or come to some arrangement with Southgate. [14] The listing of tenants on the TICA database has significant consequences; it can effectively prevent them from being successful in applications to rent property whilst they are on the database. This is what has occurred with Mr Dynan and Ms Hansson. [15] The Tribunal’s powers with respect to tenancy databases are contained in Chapter 9 of the RTRAA 2008. Section 459 sets out the necessary precursors to listing a tenant. These requirements are cumulative and include the requirement to provide written notice to the tenant of the intention to list (s 459(1)(d)) and giving that tenant a reasonable opportunity to review the information to be entered (s 459(1)(e), unless the tenant is unlocatable – s 459 (2)). [16] Here, the learned Adjudicator was satisfied that the Respondent agent had not complied with those provisions. Section 460 provides a mechanism for the tenant to make application to the Tribunal if there is a breach of that order. Section 460 does not provide expressly for compensation, and it does not appear to be the intention of the statute that compensation be ordered pursuant to section 460, for the following reasons. [17] Section 460(3) defines the functions which may be performed by the Tribunal if there has been a breach of s 459. It can "order a person to take stated steps to remedy the breach" or "make another order it considers appropriate." [18] The apparently general wording allowing for "any other order it considers appropriate" must be read in its immediate statutory context, and the immediately preceding provision deals with remedying the breach of s 459, which presumably would include providing necessary information, providing an opportunity to review and respond to the proposed listing and other matters of that kind. [19] Compensation is specifically dealt with in s 464 of the Act. In order to apply under that section, a person in the Respondent agent's position would first have to have been convicted of the offence of contravening a Tribunal's order. Only after that process is complete can an application for compensation be made under s 464. Given that this process is specifically contemplated, it would be surprising if the proper interpretation of the general words of s 460(3)(b) were to circumvent or contradict the specific words of ss 463 and 464. Therefore there is no jurisdiction provided by s 460 to award compensation for a breach of s 459. [20] Section 461, which deals with applications to remove a tenant from a database, is silent as to compensation. The tribunal may order that the listing be removed or amended on the grounds set out in that section (either -- 4 of 5 -- 5 incorrect, or unjust, or both) but an application brought under that provision cannot give rise to an order for compensation. [21] Therefore, what was before the tribunal was an application to remove the tenancy database listing (s 461) and for any necessary orders relating to a breach of the listing precursors (s 460) but was not properly an application for compensation under section 464. In this respect I accept the submissions of Southgate. [22] I note that this matter was reopened and the decision to award compensation had already been made by the previous Tribunal member. The learned Adjudicator affirmed that decision. However, as there is no provision pursuant to which that earlier decision could properly have been made for the reasons stated, the Tribunal had power to award compensation initially or add to it in the subsequent decision. The end result is that the entire compensation award should be set aside. [23] The tenants had already succeeded in their application to have their listing removed. I agree with the learned Adjudicator’s reasons that the listing was unfair and unjust and there is no error in that reasoning. It follows that the order to have the tenants names removed from the database ought not be disturbed. [24] This decision does highlight a deficiency in the RTRA Act to not make provision for compensation for a wrongful listing on the TICA database. The transcript and evidence establishes, as the learned Adjudicator found, that these tenants had been dealt with in a high handed way that disregarded their rights under the tenancy agreement5 and under the RTRA Act.6 They were put to unreasonable expense and inconvenience because of Regina Smith’s conduct in her dealings with them. Ms Smith knew they were going to vacate on the 23rd of April but she ignored that and claimed additional rent of $297.00 because she did not receive the written notice to leave until 28 April 2011. She knew the rent claimed was in dispute. She then resorted to the database, without warning to the tenants, to exert further pressure on them for payment of the outstanding rent. The tenants ultimately had to come to the Tribunal for relief. They should be entitled to compensation for that conduct but unfortunately the Act makes no provision for compensation unless steps are taken under section 463 and there is now no basis for that as the earlier order has been complied with. [25] For the reasons set out above the order of the Tribunal will be that the order that the respondents pay the applicant $1,995.12 is set aside. 5 To vacate at the end of the tenancy agreement. 6 To expect that a licensed letting agent would comply with the requirements of the legislation. -- 5 of 5 --