Alikhan v Mian Prestige Real Estate trading as Ray White Runaway Bay [2010] QCATA 21

CITATION: Alikhan v Mian Prestige Real Estate trading as Ray White Runaway Bay [2010] QCATA 21 PARTIES: Rizwan Alikhan & Candace Alikhan (Applicants) v Mian Prestige Real Estate trading as Ray White Runaway Bay (Respondent) APPLICATION NUMBERS: APL055-10 and APL083-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: President DELIVERED ON: 1 June 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for leave to appeal in 336 of 2010 (APL055-10) is allowed. 2. The application for leave to appeal in 735 of 2010 (APL083-10) is dismissed. CATCHWORDS : RESIDENTIAL TENANCIES – TERMINATION ORDER – Residential Tenancies and Rooming Accommodation Act 2008, 293 – where agents served tenants with Notice to Leave – where agents served notice on purported grounds of requiring vacant possession – where ground not available as basis for leave under subdivision 2 provisions of the Act – where terms in fixed tenancy continue to apply on basis of periodic tenancy – whether open for adjudicator to issue termination order under s 293 – whether notice was actually a notice without ground – whether adjudicator made decision based on erroneous construction of the Act -- 1 of 6 -- 2 RESIDENTIAL TENANCIES – TERMINATION ORDER - Residential Tenancies and Rooming Accommodation Act 2008, 291 – where tenants served agents with Notice of Intention to Leave – where tenants allege Notice to leave was retaliatory PROCEDURAL FAIRNESS – OPPORTUNITY TO PRESENT SUPPORTING EVIDENCE – where tenants not afforded opportunity to present evidence to support allegation of retaliatory action by agent – whether breach of rules of procedural fairness Residential Tenancies and Rooming Accommodation Act 2008, ss 291, 293 Queensland Civil and Administrative Tribunal Act 2009, s 143 APPEARANCES and REPRESENTATION (if any): APPLICANT : RESPONDENT: REASONS FOR DECISION [1] Mr and Mrs Alikhan were the tenants in a property at Sovereign Islands. The owner is Mr Vickers. The tenancy was managed, on his behalf, by Ray White Runaway Bay. Mr and Mrs Alikhan became the tenants under a General Tenancy Agreement on 26 February 2009. The term of the agreement was 12 months, ending on 24 February 2010, with a 12 month option. [2] On 2 December 2009 the agents served the Alikhans with a Notice to Leave, requiring that they surrender occupation not later than midnight on 24 February 2010. The Notice advances, as the lessors’ grounds for giving it, ‘End Of Lease. Owners require vacant possession’. [3] On 30 March 2010 a QCAT adjudicator, after a hearing, held that the Notice to Leave was sufficient to entitle the lessor to possession and made a termination order and directed that a warrant for possession of the premises issue on 6 th April 2010 and be effective for 24 days – in effect, requiring Mr and Mrs Alikhan to quit the premises by 30 April 2010 at the latest. [4] They have sought leave to appeal that decision (QCAT appeal APL055-10, relating to Southport QCAT proceedings 336 of 2010). They have also, however, sought leave to appeal in Southport proceedings 735 of 2010 (QCAT appeal APL083-10). The record and transcript for 735/10 shows -- 2 of 6 -- 3 that it was dismissed. Mr Alikhan has informed QCAT staff that he does not wish to proceed with his application for leave to appeal in 735/10 but says that some of the material in it relates to his application for leave in 336/10. [5] 336/10 was brought by the owner of the premises Mr Vickers on the basis of Mr and Mrs Alikhan’s alleged failure to leave, and sought a termination order under s 293 of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA), in apparent reliance upon the Form 12 mentioned earlier. The application also sought termination on the basis of the tenants’ alleged objectionable behaviour (ss 297, 313). [6] On about 10 March 2010 Mr and Mrs Alikhan themselves served a Notice of Intention to Leave in Form 13, advising they would give up vacant possession to the lessor on 24 March 2010 on the grounds of the lessors’ repeated breaches of the lease agreement and harassment, and failure to provide services and allow the tenants quiet enjoyment of the premises. 735/10 relates to the same premises and the same tenancy agreement but the QCAT application itself was brought by Ray White Runaway Bay, albeit upon the same ground – the tenants alleged failure to leave. On 19 April 2010 Ray White filed an application to withdraw that proceeding whereupon the Registrar made the order dismissing it. [7] It is unsurprising, in the circumstances, that the proceedings before the learned adjudicator on 30 March 2010 were beset by confusion. At the outset matter 336/10 was called on and Ms Morris from Ray White’s office and Mr Vickers appeared, as did Mr Alikhan. At the outset Mr Alikhan sought an adjournment, pointing to the fact that another application had been filed returnable on 19 April. The learned adjudicator indicated she intended to hear proceeding 336 of 2010 on 30 March and observed that 735 of 2010 could simply be dismissed if the determination of 336 resolved the matter. [8] In the course of the subsequent hearing in 336/10 some extra matters, likely to add to the confusion, arose: (a) Ms Morris asserted that Mr and Mrs Alikhan were in arrears with the rent. (b) She also said that she was ‘… mainly … here because the tenant was due to vacate the 24 th of February and hasn’t’. (c) Mr Alikhan sought an adjournment because, he said, he and his wife were not ready to argue or present evidence about the allegation that the rent was in arrears. (d) He also asserted that the landlord had committed a number of breaches pursuant to notices he and his wife had delivered demanding performance of repair and maintenance work on the property. (e) In addition he asserted that he and his wife had exercised the option under the General Tenancy Agreement. -- 3 of 6 -- 4 [9] Eventually, the transcript shows, the learned adjudicator said1 that there were two issues before her: the first, whether or not the tenants had been guilty of objectionable behaviour justifying termination of the lease; and the second, why a termination should simply not be made in light of ‘…the appropriate notice to leave’ which appears to be a reference to the earlier mentioned Form 12.2 [10] Later, the adjudicator said she would not make any determination about the allegation the rent was in arrears, or the allegations of objectionable behaviour, but would order termination pursuant to the Form 12.3 In her reasons she said: …I am not going to make any findings in relation to the objectionable behaviour because on the evidence before me I am satisfied that … I don’t need to make findings about that sort of issue if I can get around it, because I am satisfied the Form 12 Notice to Leave would give me the requisite power to make the order in any event.4 [11] In his submissions in the appeal in proceeding 336 of 2010 (APL055-10) Mr Alikhan asserts that the Notice to Leave ‘…was issued as a retaliatory measure so the owner and agent would not have to complete expensive repairs and upkeep maintenance as an obligation under the lease agreement’. He made the same assertion in his application for leave in 735 of 2010 (APL083-10). He also asserts that the agent’s ‘claim contravened s 291 of the RTRA. [12] Although Mr and Mrs Alikhan’s submissions are not expressed in terms that the learned adjudicator did not have the power to make a termination order in the circumstances which applied, that is the substance and effect of their reference to s 291. Under that provision, a lessor may give a notice to leave premises to a tenant without stating a ground for the notice, but cannot do so if the tenant has taken some other action to enforce the tenant’s rights or if the notice constitutes taking retaliatory action against the tenant. Under s 291(4) a notice to leave which does not state a ground is called a notice to leave without ground. [13] The tenancy agreement here was a fixed term agreement under s 70 of the RTRA. Notwithstanding the fixed term it expresses, s 70(2) provides that after the day on which it ends, it continues to apply on the same terms, and on the basis the tenant is holding over under a periodic agreement. [14] Chapter 5 of the RTRA (Ending of agreements) provides, in s 277(1), that a residential tenancy agreement ends only in one of the ways contained in the section itself. The various methods, relevantly for the purposes of this dispute, are: (i) a written agreement of the lessor, and the tenant; (ii) a notice to leave from the lessor to the tenant, followed by the tenant 1 T 1-13.35. 2 Ex 6 in the proceedings. 3 T 1-23. 4 T of Reasons, 1-2 -- 4 of 6 -- 5 handing over vacant possession on or after the handover day; (iii) a notice of intention to leave from the tenant to the lessor and, again, the handing over of possession; or, (iv) if the tribunal makes an order terminating the agreement. (Other methods of ending these agreements are provided in the section, but none are relevant here.) [15] Under Chapter 5, Part 1, Division 2, Subdivision 3 a lessor may apply to the tribunal for a termination order if the lessor gives a notice to leave and the tenant fails to hand over vacant possession on the handover day: s 293. It was this provision, it appears, upon which the learned adjudicator relied in making the termination order here. [16] Under Division 2, Subdivision 2, however a notice to leave (defined in Schedule 2 of the RTRA, to mean a notice given by the lessor to the tenant requiring the tenant to handover vacant possession of the premises to the lessor on the handover day) may only be, for relevant, present purposes: (a) A notice to leave for unremedied breach: s 281; or (b) A notice to leave without ground: s 291. [17] The Form 12 Notice to Leave here purports, on its face, to be a notice ‘with grounds’ those grounds being: ‘End Of Lease. Owners require vacant possession’. That ground is not available as a basis for a notice to leave in any of the provisions contained in Subdivision 2 (ss 281-292). It follows that the notice was, in truth, one without grounds and, therefore, s 291 applied. [18] While it is not unsurprising that the approach of the last day of a fixed term tenancy agreement does not, by itself, provide a ground for a notice, that is the unavoidable conclusion from these provisions of the RTRA. That conclusion is supported by clause 6 of the General Tenancy Agreement which provides, in 6.1(b), that unless a notice to leave or a notice of intention to leave (or an abandonment termination notice) has been given by the lessor or the tenant before the day upon which the term ends, the terms of the agreement continue to apply on the basis the tenant is holding over under a periodic tenancy. [19] It follows that it was not open to the learned adjudicator to issue, in these circumstances, a termination order under s 293. The notice to leave said to provide a basis for that order was not supported by any ground available under Subdivision 2 and was, in truth, a notice without ground to which s 291 applied. [20] Mr Alikhan said, early in the hearing, that he had given Ray White and Mr Vickers ‘… a lot of breach notices … for failure to … repair and maintain the property…’5 but he was unable to adduce that evidence at the hearing because he thought it was proceeding upon an allegation concerning his objectionable behaviour. That confusion on his part was, in light of the history of the proceedings set out earlier, understandable. The evidence 5 T 1-5.5-10. -- 5 of 6 -- 6 he was unable to adduce may have been relevant to s 291(2)(b)(ii) which prohibits the lessor giving a notice to leave without grounds if the tenant has taken some action to enforce the tenant’s rights; or, he may have been able to adduce evidence to establish the notice without grounds was retaliatory, in terms of s 291(3). [21] It follows that the decision was based upon an erroneous construction of the RTRA and involved an error of law6 and, also that Mr and Mrs Alikhan were denied procedural fairness because evidence they were entitled to present in the face of a notice without grounds could not be presented, in circumstances where their failure to have it available was excusable. Either of those matters warrants a grant of leave to appeal7 . [22] A complication in the matter is the tenants’ own Notice of Intention to Leave (Form 13) delivered on 10 March 2010 which, save for its tender into evidence by the real estate agent, seems to have escaped attention altogether during the proceedings. Presumably, all parties regarded it as irrelevant in light of the fact the tenants had not vacated on the stipulated date and were still in occupation at the time of the hearing, six days later, on 30 March 2010. In any event, it provides further support for the tenants’ assertion that they had grounds for complaint against the lessor or the agent which, as they said elsewhere, they had ventilated and which supported their argument that the agent’s notice to leave was retaliatory in terms of s 291. [23] The application for leave to appeal in 735 of 2010 (APL083-10) should be dismissed. The application for leave in 336 of 2010 (APL055-10), should be allowed. Because, it appears, Mr and Mrs Alikhan have vacated the premises and, conceivably, may not wish to proceed with an appeal, the appeal process ought be left in their hands pursuant to s 143 of the QCAT Act (Queensland Civil and Administrative Tribunal Act 2009) under which they must file their appeal within 21 days. 6 S v Crimes Compensation Tribunal [1998] 1 VR 83 7 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577. -- 6 of 6 --