Noffke v Oceanside Management Pty Ltd
[2017] QCA 156
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Notable Unreported Decision
- Appeal Determined (QCA)
- Noffke v Oceanside Management Pty Ltd[2017] QCA 156
- Add to List
Noffke v Oceanside Management Pty Ltd[2017] QCA 156
Noffke v Oceanside Management Pty Ltd[2017] QCA 156
SUPREME COURT OF QUEENSLAND
CITATION: | Noffke v Oceanside Management Pty Ltd t/as Broadwater Apartments [2017] QCA 156 |
PARTIES: | ALLAN NOFFKE |
FILE NO/S: | Appeal No 1388 of 2017 QCATA No 305 of 2016 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave Queensland Civil and Administrative Tribunal Act |
ORIGINATING COURT: | Queensland Civil and Administrative Tribunal Appeal Tribunal at Brisbane – [2017] QCATA 6 |
DELIVERED ON: | 21 July 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 13 July 2017 |
JUDGES: | Sofronoff P and Gotterson JA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
|
CATCHWORDS: | LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – RENTAL BONDS OR SECURITY DEPOSITS – where a tenancy agreement between the applicant and respondent was terminated by order of the Queensland Civil and Administrative Tribunal (QCAT) on the basis of excessive hardship associated with the applicant’s ill-health – where, in a separate application, QCAT ordered compensatory payment to the respondent from the applicant’s rental bond pursuant to s 350(2) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“the Act”) – where an application by the applicant for leave to appeal this order to the QCAT Appeal Tribunal (“the Tribunal”) was dismissed – where the applicant contends that s 350(2) of the Act does not apply to an application made because of excessive hardship by a tenant – whether the Tribunal erred in law Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 295, s 310, s 343, s 350 Noffke v Oceanside Management Pty Ltd t/as Broadwater Apartments [2017] QCATA 6 Torki v Norris [2014] QCATA 253, cited |
COUNSEL: | C Van Der Weegen for the applicant No appearance for the respondent |
SOLICITORS: | Suncoast Community Legal Service for the applicant No appearance for the respondent |
- SOFRONOFF P: I agree with the reasons of Gotterson JA and with the orders his Honour proposes.
- GOTTERSON JA: Mr Allan Noffke, the applicant, entered into a tenancy agreement to rent a unit in Broadwater Apartments on Birtinya Island for the period 13 December 2015 to 12 December 2016.[1] He paid a rental bond of $1,328.
- On 8 June 2016, Mr Noffke applied to the Queensland Civil and Administrative Tribunal (“QCAT”) for an order terminating the lease under Chapter 5 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“the Act”). The application was made under s 310 of the Act on the basis of excessive hardship associated with the applicant’s ill-health.[2]
- The agreement was terminated as at 21 June 2016 by order of QCAT made under s 343 of the Act.[3] Pursuant to s 277(5)(a) of the Act, the tenancy agreement ended upon the making of this order.
- On 20 July 2016, the respondent to the applicant’s application, Oceanside Management Pty Ltd trading as Broadwater Apartments (“Oceanside”), filed a separate application in QCAT seeking payment to it from the balance of the bond of $580.70 comprised of $6 for unpaid rent, a break-lease fee of $456.50, the QCAT filing fee of $63.20 and an amount of $55 for attendance at the hearing.[4] That application was heard on 10 August 2016. An order was made that Oceanside’s claim be allowed to the extent of $525.70, the claim for attendance not being allowed. The Tribunal also ordered that the balance bond of $802.30 be paid to the applicant.[5]
- On 9 September 2016, the applicant applied to the Appeal Tribunal of QCAT for leave to appeal the order made in favour of Oceanside. In that application, the applicant conceded that the unpaid $6 for rent was not recoverable by him and sought reimbursement of $519.70.[6] That application was heard on the papers. Leave to appeal was granted, but the appeal was dismissed on 17 January 2017.[7]
- The applicant filed an application on 14 February 2017 for leave to appeal to this Court against the dismissal of the appeal. He may appeal only on a question of law and if this Court grants leave to appeal.[8]
The question of law
- Before the Tribunal which heard Oceanside’s application and in written submissions to the Appeal Tribunal, the applicant contended, correctly, that he was not liable to pay reasonable costs incurred in reletting the premises under clause 7 of the lease. Clearly, a termination by order of QCAT made under s 343 of the Act was not a circumstance that triggered the clause and a break-lease fee was not payable by the applicant under it.
- Notwithstanding that, the Appeal Tribunal’s short reasons concluded as follows:[9]
“[8] Although leave to appeal should be granted, the appeal should be dismissed. Section 350(2) of the RTRA Act provides, specifically, that if the tribunal terminates a tenancy agreement because of excessive hardship, it may also make an order it considers appropriate, including an order that the a party pay compensation for the loss of tenancy. That section operates to negate Mr Noffke’s submission that no compensation was payable because the tenancy agreement was lawfully terminated.
[9] The appeal should be dismissed.”
- The Appeal Tribunal evidently considered that s 350(2) of the Act authorised the making of the order in Oceanside’s favour. The question of law that the applicant wishes to raise in this Court is whether, upon its proper construction, that section did authorise the making of that order.
Discussion
- I preface my discussion of this question with the observation that the applicant was represented by counsel at the hearing before this Court. Oceanside had intimated that it would not attend the hearing. No submissions were made on its behalf.
- Section 350 is within Division 7 of Chapter 5 of the Act. That division is headed “Recovery of possession of premises”. The section states as follows:
“(1) If a tribunal makes a termination order on an application made other than by a tenant, it also must issue a warrant of possession.
- If the termination order is made on an application made because of excessive hardship, as well as issuing the warrant of possession, the tribunal may make any other order it considers appropriate including, for example, an order that the applicant pay compensation to the other party to the agreement for the other party’s loss of the tenancy.”
- It is relevant to the interpretation of this section that Chapter 5 of the Act contains not only the provisions for termination for excessive hardship on the application of a tenant to which I have referred, but also provisions for termination for excessive hardship on the application of the lessor if the lessor would suffer such hardship were the tenancy agreement not terminated. An application for termination on that ground may be made by a lessor under s 295 of the Act. A termination order may be made by QCAT on such an application under s 343 of the Act.
- Given the framework which permits an excessive hardship termination application by a tenant or a lessor, the question to be resolved may be refined to whether or not s 350(2) applies both to an application made because of excessive hardship by a tenant and to an application made because of excessive hardship made by a lessor. In my view, there are features of the language in which the section is enacted which indicate that it applies only to a lessor’s application.
- Firstly, the conditional clause which introduces the section refers to “the termination order made”. The definite article relates the order to a termination order to which s 350(1) applies, that is to say, a termination order made on an application that has been made other than by a tenant. Secondly, the expression “as well as issuing the warrant of possession” in using the definite article, relates the warrant of possession to one issued under s 350(1). As noted, such a warrant is issued only on the application of a person other than the tenant.
- So construed, s 350(2) is a provision which authorises orders, including an award of compensation to a tenant, where a termination order is made on a lessor’s application because of excessive hardship, and where, concurrently, a warrant of possession is issued against the tenant under s 350(1). The discretion conferred by s 350(2) provides a means whereby orders appropriate to that circumstance, including orders for payment of compensation, may be made.[10]
- I conclude that the discretion to make orders, including orders by way of compensation, conferred by s 350(2) is one that is not applicable to the circumstance where a termination order is made on the application of a tenant because of excessive hardship. In my view, the Appeal Tribunal erred in law in holding that it does.
- The Appeal Tribunal ought to have allowed the applicant’s appeal, set aside the order that $525.70 be paid to Oceanside and substituted for it, orders with effect that as to the $525.70, $519.70 be paid to the applicant, and $6 to Oceanside.
Leave to appeal
- I would grant leave to appeal in this instance notwithstanding that this appeal arises out of a minor civil appeal in QCAT. The appeal involves the interpretation of a significant provision in the Act concerning the ambit of jurisdiction of QCAT. This grant of leave is not to be regarded as implying that leave will be granted in any instance where an error of law is demonstrated in a minor civil dispute matter.
Orders
- I would propose the following orders:
- Grant leave to appeal.
- Allow the appeal.
- Set aside the decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal (“the Tribunal”) made on 17 January 2017.
- Substitute therefor, the following orders:
- the appeal to the Appeal Tribunal is allowed;
- the order of the Tribunal made on 10 August 2016 for payment of the bond to Oceanside Management Pty Ltd trading as Broadwater Apartments be set aside to the extent of $519.70;
- in substitution therefor, it be ordered that the said amount of $519.70 be paid to the applicant.
- Order that the respondent refund to the Residential Tenancies Authority the sum of $519.70 paid to it pursuant to the orders of the Tribunal made on 10 August 2016.
- APPLEGARTH J: I agree with the reasons of Gotterson JA and with the proposed orders.
Footnotes
[1] AB35-45.
[2] Section 310 permits a tenant to apply for a termination order because the tenant would suffer hardship of the agreement were not terminated.
[3] Order made 20 June 2016: AB55.
[4] AB16-20.
[5] AB25.
[6] Applicant’s Written Submissions: AB30-32.
[7] AB94.
[8] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 150(3).
[9] AB62.
[10] I note that the Senior Member who constituted the Appeal Tribunal had, in fact, so interpreted s 350(2) in her earlier decision in Torki v Norris [2014] QCATA 253 at [6].