Wilks v Integrated Family and Youth Service Ltd
[2015] QCAT 322
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.
- Unreported Judgment
- Wilks v Integrated Family and Youth Service Ltd[2015] QCAT 322
- Add to List
Wilks v Integrated Family and Youth Service Ltd[2015] QCAT 322
Wilks v Integrated Family and Youth Service Ltd[2015] QCAT 322
CITATION: | Wilks v Integrated Family and Youth Service Ltd [2015] QCAT 322 |
PARTIES: | Jamie Christopher Wilks (Applicant) |
v | |
Integrated Family and Youth Service Ltd (Respondent) |
APPLICATION NUMBER: | MCDT188-15 |
MATTER TYPE: | Residential tenancy matters |
HEARING DATE: | 14 August 2015 |
HEARD AT: | Redcliffe |
DECISION OF: | Adjudicator Stanton |
DELIVERED ON: | 19 August 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | MINOR CIVIL DISPUTE - RESIDENTIAL TENANCIES - where notice to leave without grounds - where application to set aside notice - whether application made within required time -where dispute resolution request lodged for urgent application - where notice to leave was not signed - whether name of respondent should be amended Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 291, 292, 326, 341, 417 |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: | Jamie Christopher Wilks in person |
RESPONDENT: | Ms Melanie Kelly, Co-ordinator appeared for IFYS Limited |
REASONS FOR DECISION
What is this application about?
- [1]Jamie Christopher Wilks wants to stay in his unit where he has lived for almost three years. His landlord IFYS Limited recently gave him a ‘Notice to Leave Without Grounds’ and Mr Wilks wants the Tribunal to set it aside because he says it is retaliatory.
- [2]In determining Mr Wilks’ application, the issues for me to decide are - when can Mr Wilks apply to set aside the Notice? - can the Tribunal vary the requirement to apply within 4 weeks? - is the Notice to Leave Without Grounds otherwise valid? As a preliminary issue, I will also address who is the correct respondent.
Background
- [3]Mr Wilks has been the tenant of a unit in a residential complex at Redcliffe since 2012. The lessor is shown in the tenancy agreement as Integrated Family and Youth Services trading as IFYS Ltd. Mr Wilks continues to remain in occupation of the premises under a periodic agreement.
- [4]The history of the tenancy shows there has been some conflict between Mr Wilks and IFYS, particularly in about May 2013 and more recently in May and June of 2015. The conflict in 2013 resulted in breach notices and a notice to leave being served. Those issues were resolved and Mr Wilks continued his occupation as a tenant.
- [5]IFYS says that on 19 May 2015, Mr Wilks had a conversation with its property manager and engaged in extremely offensive language, including swearing and yelling. It also says that an allegation was made that Mr Wilks had been seen wandering the complex with a baseball bat which it said could be considered by others as intimidation. On 22 May 2015, it served upon Mr Wilks, a notice to remedy breach. This notice says “The Tenant must not use verbal abuse, harassment, intimidation or cause a serious nuisance.” The notice also required that the breach be remedied by 1 June 2015. No further action in respect of that notice would appear to have been taken by IFYS although Mr Wilks says that he forwarded to the Residential Tenancy Authority a completed dispute resolution request.
- [6]On 4 June 2015, IFYS posted a letter and a notice to leave without grounds to Mr Wilks. The notice is shown as having been issued on 4 June 2015 and required him to vacate by 10 August 2015. Significantly, the copy of the notice to leave which is on the tribunal file is both unsigned and undated.
- [7]On 24 July 2015, Mr Wilks filed an application with the tribunal. The application was brought under Section 292 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) and sought an order to set aside the notice. He also maintained he has a defence to the allegations previously brought against him and apart from his own evidence at the hearing, called three witnesses in support. He has also shown, by the production of a petition, that he has the support of many of the other residents in the complex. He gave his account of what occurred in May and June of 2015 without any hesitation and was not seriously challenged by the respondent. He impressed as a person who was likely to be telling the truth and gave a credible explanation for his actions. The overall impression from his own evidence and that of his witnesses is that he is a staunch defender of his rights although perhaps may be seen as too overbearing for some. IFYS chose not to call any further evidence in response to the application.
Who is the correct respondent?
- [8]From the documents on the tribunal file, it is apparent that the applicant has not named the respondent correctly. The true identity of the lessor is however not in issue. The respondent’s representative raised no issue about the matter and I am satisfied there would be no disadvantage to the respondent by making an order to correct the name of the respondent to IFYS Limited. It is appropriate to make this order to ensure that the name of the respondent is not only a proper legal entity but also the correct respondent to the application.
When can Mr Wilks apply to set aside the Notice?
- [9]Section 291 of the RTRA Act provides that the lessor may give a notice to leave the premises to the tenant without stating a ground for the notice however the lessor must not give such a notice because the tenant has taken some action to enforce his rights or if the notice constitutes taking retaliatory action (my emphasis).
- [10]Section 292 of this Act further provides that if the tenant is given such a notice and he reasonably believes the notice was given in contravention of s 291, he may apply to the tribunal for an order to set aside the notice. Significantly, the section also provides that the application must be made within 4 weeks after the notice was given (my emphasis).
- [11]The application as filed by Mr Wicks was not made within 4 weeks after the notice was given. However, he said that he had instead lodged a dispute resolution request. A copy of such request is on the tribunal file and is dated 28 May 2015.
- [12]Section 417 of the Act provides that if an application about an issue may be made to the tribunal by the tenant and under a provision of the Act, the question whether the application has been made is relevant to an issue, then a reference in the provision to the making of an application includes a reference to the making of a dispute resolution request. Whilst this provision more frequently applies to non-urgent applications, it would seem to equally apply to urgent applications. However, the difficulty for Mr Wilks is that his dispute resolution request pre-dates the notice to leave. Neither his application as lodged on 24 July 2015 nor his dispute resolution request dated 28 May 2015 were made “within 4 weeks after the notice to leave was given” (my emphasis).
Can the Tribunal vary the requirement to apply within 4 weeks?
- [13]The tribunal has no power to vary or waive this requirement. The RTRA Act “is intended to be prescriptive and all-embracing in governing the procedure for determination of disputes arising under residential tenancies…..it is inescapable that the procedure to be followed must accord with the RTRA Act”. [1]
- [14]Because Mr Wilks has not complied with this provision, it is not necessary to further consider the merits of his application - that is whether it is ‘appropriate’ to set aside the Notice.[2]
Is the Notice to Leave Without Grounds otherwise valid?
- [15]By letter dated 4 June 2015, IFYS attached the notice to leave. The copy of the notice is neither dated nor signed.
- [16]Section 326 of the RTRA Act provides that a notice to leave must, amongst other things, be signed by or for the lessor (my emphasis). The above comments relating to procedure are equally applicable to this requirement.
- [17]Section 341 of the Act provides that if an application is made to the tribunal for a termination order because of a failure to leave, it may make the order if it is satisfied it is appropriate to make the order (my emphasis).
- [18]In considering what further action, if any, is taken in respect of the notice to leave, the parties should have regard to these provisions.
Orders:
- The name of the respondent is amended to IFYS Limited.
2. The application is dismissed.