Bull v Ridge [2011] QCATA 264

CITATION: Bull v Ridge [2011] QCATA 264 PARTIES: Charlotte Bull v Anthony Ridge APPLICATION NUMBER: APL146-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham, A/President DELIVERED ON: 26 September 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The appeal is allowed. 2. The decision to dismiss the application in Toowoomba Minor Civil Dispute number 233 of 2010 is set aside. 3. The application will be re-heard in Brisbane at a date and time to be fixed by the Registrar. CATCHWORDS: APPEAL – Minor Civil Dispute – Residential Tenancy – Return of Bond – Error of Law – where agent applied to the RTA for return of bond – where lessee was not aware of application – where bond was returned to the lessor – where lessee subsequently learned of return and made an application in the Tribunal against lessor – where lessor argued application should have been brought against agent – where Magistrate dismissed application – whether application incorrectly dismissed Queensland Civil and Administrative Tribunal Act 2009, ss 43, 142(3)(a)(i) Residential Tenancies and Rooming Accommodation Act 2008, ss 136, 399, 415, 416 -- 1 of 4 -- 2 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). REASONS FOR DECISION [1] This appeal is about a claim for return of a rental bond paid under a residential tenancy agreement. It raises questions about who is the proper party to proceedings to recover a bond that the Residential Tenancies Authority (RTA) has already paid to the lessor or its agent. [2] Mr Ridge is the owner of a property in Helidon that he rented to Ms Bull under a residential tenancy agreement. Suncity West Real Estate (Suncity) was the lessor’s agent. [3] Some time after the tenancy concluded, the RTA paid the rental bond to Suncity, which then paid it to Mr Ridge. Although it is not entirely clear on the material before the Appeal Tribunal, it seems the RTA did not have Ms Bull’s contact details when Suncity sought and obtained the refund of the bond.1 Ms Bull gave evidence that she gave those details to Suncity and assumed that it would be passed on to the RTA. She did not know the RTA had paid the bond to Suncity until she contacted the RTA some months later. [4] Ms Bull then commenced an application against Mr Ridge, for the return of the bond. A Magistrate, acting in his capacity as a QCAT Member, heard the application in the Minor Civil Dispute jurisdiction of QCAT. Ms Bull has sought leave to appeal his decision to dismiss her application. [5] Leave to appeal is required to appeal from a decision arising from a Minor Civil Dispute.2 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 sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [6] The Magistrate dismissed Ms Bull’s application because he concluded she should have brought the application against Suncity, not Mr Ridge. When the Magistrate raised this with Ms Bull, she informed him that she proceeded against Mr Ridge after receiving information from QCAT about who the respondent should be and had obtained legal advice on the matter. The basis for the Magistrate’s conclusion that she should have proceeded against Suncity was that the RTA named Suncity as the other 1 Residential Tenancies and Rooming Accommodation Act 2008, s 136. If the lessor seeks the bond, the RTA must pay it to them if the tenant has not made a Dispute Resolution Request within 14 days of being given notice of the lessor’s request. 2 Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i). -- 2 of 4 -- 3 person in a Notice of Unresolved Dispute (NURD). The Magistrate’s decision misconstrues the effect of that notice. [7] Before a tenant may apply to QCAT for the return of a bond, they must seek to resolve the dispute through the RTA.3 If the RTA’s conciliation process concludes without agreement, the tenant can apply to QCAT. The conciliation process may conclude without agreement because the RTA refuses to offer conciliation; because a party refuses to participate or because the parties cannot reach agreement. [8] The RTA may refuse to offer conciliation if it considers the dispute is not suitable for conciliation. It is required to publish guidelines about the matters it will take into account in deciding whether a dispute is unsuitable for conciliation.4 The RTA has published guidelines that provide that it considers a matter may be unsuitable for conciliation if a party seeks dispute resolution after the bond has been paid out in accordance with the legislation.5 In this case, it seems that the RTA refused to offer conciliation because, when Ms Bull approached the RTA, it had already paid the bond to Suncity. [9] The NURD is not a statutory document. It is, however, evidence that the applicant has fulfilled the pre-condition to their right to commence action in QCAT. Suncity is named on the tenancy agreement as the lessor’s agent. It applied for and received the refund of the bond, on the lessor's behalf. Presumably, it was in that capacity that it was named in the NURD as the other person. [10] As between Suncity and Ms Bull, Suncity had no right to the bond, except in its capacity as agent for Mr Ridge. The fact the NURD noted Suncity as the other person does not mean the tenant must bring the action against Suncity. The only purpose of the NURD is to indicate that the necessary pre-condition to action has been fulfilled. [11] Mr Ridge is the lessor. The dispute between the parties relates to the condition of the property at the time the tenancy ended. Mr Ridge received the bond. Mr Ridge is the proper respondent to Ms Bull’s claim for return of the bond. The Magistrate erred when he decided that the application could not proceed against him. [12] The Magistrate should not have dismissed Ms Bull’s application. This was an error of law. Leave is granted to correct that error and the appeal is upheld. [13] Ms Bull requested that QCAT rehear her application in Brisbane. Although the Magistrate heard some evidence before he dismissed the application, he had not completed the hearing when he made his decision. The Appeal Tribunal is not in a position, therefore, to determine the matter. 3 Residential Tenancies and Rooming Accommodation Act 2008 ss 415, 416. 4 Residential Tenancies and Rooming Accommodation Act 2008 s 399. 5 http://www.rta.qld.gov.au/matters_not_suitable_for_concilation.cfm -- 3 of 4 -- 4 The proper course is for QCAT to rehear the application. Mr Ridge resides and works in Brisbane. There is no apparent prejudice to him if the rehearing is in Brisbane. [14] Ms Bull has made an application for legal representation. That matter is best determined by the Adjudicator before whom the matter proceeds. Ms Bull may then address the criteria that QCAT must consider in determining whether the interests of justice require leave.6 6 Queensland Civil and Administrative Tribunal Act 2009, s 43. -- 4 of 4 --