HHP v WHP[2020] QCAT 524

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Summary of application

1. [1]
   This is an application by Mr P^[1] to recover as a minor debt the sum of $4,845.96 (plus interest and costs) from the respondent, Mrs P, being the amount of solar rebates/credits the applicant says the respondent wrongly benefited from – or in his words, “stole”^[2] – between June 2013 and January 2020.
2. [2]
   During the relevant period, the respondent occupied as tenant a property owned by the applicant on terms that such occupancy was to be rent free, save for utilities usage charges. There was no dispute that the respondent paid for her electricity consumption during the period upon production of invoices from the applicant. However, in late 2019 the applicant extracted from the invoices he had received over the period the sum discounted for the “solar rebate” and now seeks in the Tribunal to recover from the respondent of the amount of those credits he says she wrongly received.
3. [3]
   The applicant relies upon the terms of a Financial Agreement and a Lease between the parties and in his words, seeks that the Tribunal “honour the terms of our financial agreement and the lease”.^[3]
4. [4]
   The application necessarily begs the question of jurisdiction, in respect of which a closer examination of the parties’ legal relationship was necessary.

Parties’ Background

5. [5]
   The applicant and the respondent commenced living together in approximately 1989 and married on 25 August 1990.^[4]
6. [6]
   They separated in May 2011, with a relationship that spanned approximately 24 years.^[5]
7. [7]
   With the assistance of solicitors, the parties ultimately reached agreement with respect to the division of their matrimonial property on separation, the terms of which were somewhat novel in that they meant the parties had an ongoing contractual relationship for up to 10 years after terms were agreed.
8. [8]
   On 21 June 2013 the parties entered into a Financial Agreement which – relevant to these proceedings - provided, among other things:

   1. (a)
      that the Agreement was made under section 90C of the Family Law Act 1975 (Cth);
   2. (b)
      in clause 6, that the applicant would “retain as his absolute property” the former matrimonial property^[6] (the property) and the “Solar Power rebate entitlement”;^[7]
   3. (c)
      in clause 8, that the benefits provided in the agreement were “in full and final settlement of any and all claims” arising under Part VII of the Family Law Act 1975 (Cth);
   4. (d)
      in clause 10, that “all and any future disputes” under the agreement would be determined by an approved arbitrator under the Family Law Act 1975 (Cth);
   5. (e)
      in clause 11 that the agreement finally determined the financial relationship between the parties and that they had each “taken into account the exigencies in life so far as such exigencies may affect the financial circumstances favourably or unfavourably of each of them including without limiting the generality of the foregoing: (a) the loss of employment of either or both of the parties”; and
   6. (f)
      in clause 15, that each party entered the agreement with the benefit of receiving independent legal advice about their respective rights under the agreement and after “mature consideration and judgment” of its terms.
9. [9]
   Contemporaneously with the signing of the Financial Agreement, the parties entered into a Lease which relevantly provided, among other things:

   1. (a)
      that the term of the lease was 10 years commencing 1 July 2013 and ending 30 June 2023;^[8]
   2. (b)
      in clause 5, that the consideration for the Lease being granted is “the lessee entering into a Binding Financial Agreement pursuant to the Family Law Act 1975 (Section 90C)” and the parties acknowledge that “the terms of this Lease and the terms of the Binding Financial Agreement jointly form the whole of the agreement reached by the lessor and lessee in relation to property settlement as a result of the breakdown of their marriage”;
   3. (c)
      in clause 6, that the respondent was entitled to “sole and uninterrupted occupation of the leased premises during the term”;
   4. (d)
      in clause 7, that no rental was payable but that the respondent would pay “all telephone, electricity, gas and water use charges (excluding any charges of a capital nature issued by any utility or service provider) in respect of the leased premises”.
10. [10]
    The respondent says the Lease is registered on the title to the property and was registered with the consent of the mortgagee to the transaction. Although she didn’t use that word, she believes therefore her lease is protected by the “indefeasibility” that registration affords as against the interests of future buyers or mortgagees.^[9]

This particular dispute

11. [11]
    It is not clear when the applicant first made demand upon the respondent to reimburse the amount of the solar rebate/credits applied to the electricity accounts she had been paying since July 2013, but on 24 February 2019 the applicant caused solicitors to write to the respondent making that demand, and the demand was repeated by the applicant in an email dated 23 January 2020 wherein the claim was quantified as $4,845.96.
12. [12]
    In or about October 2019, the respondent says the applicant informed her that Origin Energy had contacted the applicant to inform him that there was a problem with the solar panels on the property. An inspection took place, following which the respondent says the applicant applied paint to the panels and her electricity bills increased.
13. [13]
    In December 2019, the respondent says she caused her son to inspect the panels and to clean the paint from them. The respondent then obtained a report indicating the panels were in good working order, save for some loose wiring.
14. [14]
    On or about 28 January 2020 the applicant removed the solar panels from the property such that it no longer benefits from solar rebates/credits.
15. [15]
    On 25 February 2020 the respondent was granted a Protection Order – by consent without admissions - requiring the applicant to be of good behaviour towards the respondent and prohibiting the applicant from contacting or approaching the respondent.
16. [16]
    As stated, the applicant says that:

    1. (a)
       the Financial Agreement entitles him to the solar rebate credits, and they should be added back to the electricity accounts he presented to the respondent for payment and paid by the respondent as a debt; and
    2. (b)
       his income has reduced, and he may need to sell the property.
17. [17]
    The respondent says that:

    1. (a)
       her agreement with the applicant was to pay the electricity consumption charges over and above the solar credit and that the applicant’s ownership of the rebate in the Financial Agreement was of any credits over and above usage charges – she disputes the applicant’s interpretation of the Financial Agreement;
    2. (b)
       she would never have agreed to the Financial Agreement or Lease on terms that didn’t include the subsidised electricity; and
    3. (c)
       in any event, she says that the application is “time-barred” under the Limitation of Actions Act 1974 (Qld). 

Jurisdiction

18. [18]
    At first glance, the dispute seemed more akin to a residential tenancy dispute rather than a minor debt claim. This is because:

    1. (a)
       on the face of it, the Lease is an agreement to occupy residential premises in Queensland as a residence and is a “residential tenancy agreement” within the meaning of section 12 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRAA); and
    2. (b)
       the RTRAA applies to residential tenancy agreements;^[10] and
    3. (c)
       the claim may be one for the payment of money (electricity charges) under a residential tenancy agreement, being a tenancy matter in which the Tribunal has minor civil dispute jurisdiction.^[11]

19. [19]
    If the matter is a tenancy matter, then the applicant has immediate difficulties in that in relation to his claim for money he has not complied with the obligation to obtain a Notice of Unresolved Dispute from the Residential Tenancies Authority in order to trigger the Tribunal’s jurisdiction, and, if he had, and if he established the breach by the respondent (as his tenant), he would have difficulty with section 419(3) which prevents him from claiming the payment of money following breach of a tenancy agreement unless he applies within six months of becoming aware of the breach.

20. [20]
    However, it is not at all clear that the parties ever intended their tenancy to fall under the jurisdiction of the RTRAA when the lease was entered into, and the argument was not pursued by either party in these proceedings.
21. [21]
    Regardless, the Financial Agreement is the problematic factor in these proceedings in terms of jurisdiction.
22. [22]
    That is not to say that parties who were previously married cannot subsequently find themselves in tenancy relationship or a contractual relationship that becomes the subject of a dispute over which the Tribunal has jurisdiction.
23. [23]
    The jurisdiction of the Tribunal is not ousted in minor civil dispute – minor debt or residential tenancy matters merely by virtue of the fact that the parties to the dispute had previously been married or in a defacto relationship that is the subject of final orders or a financial agreement under the Family Law Act 1975.^[12]
24. [24]
    The current application, however, can be distinguished from such a situation for several reasons:

    1. (a)
       the Lease was entered into contemporaneously with and not subsequent to or independent of the Financial Agreement; 
    2. (b)
       the consideration for the Lease was expressly stated as being the parties entering into the Financial Agreement;
    3. (c)
       early termination of the Lease on account of the lessor/applicant’s breach triggers a further financial settlement or compensation to the respondent as a party to the marriage; and
    4. (d)
       the express terms of the Lease are that it and the Financial Agreement jointly form the whole of the agreement reached between lessor and lessee in relation to property settlement as a result of the breakdown of their marriage.

25. [25]
    I find that the Lease and the Binding Financial Agreement were so intertwined that it cannot be said that the Lease can stand alone from the Financial Agreement, at least not in the context of the current dispute. 
26. [26]
    In fact, it is probable that the terms of the Lease might reasonably have been included in the Financial Agreement but for the fact that the format of the lease needed to comply with Titles Office Registry requirements for registration of the lease on title.
27. [27]
    Further:

    1. (a)
       the applicant’s claim pertains to the solar rebate which is not addressed in the Lease at all;
    2. (b)
       the applicant’s entitlement to the solar rebate is a term of the Financial Agreement not the Lease; and
    3. (c)
       it is arguable that, if the documents can stand alone (and I find that they cannot), then the claim seems to be to enforce a term of the Financial Agreement rather than the Lease.
28. [28]
    In any event, the applicant expressly seeks that the Tribunal order that the terms of the Financial Agreement and the Lease be enforced.
29. [29]
    The Financial Agreement in clause 10 seeks to require that the parties arbitrate “all and any future disputes” under the agreement. Neither party has sought to do so.
30. [30]
    Section 90KA of the Family Law Act 1975 (Cth) requires that questions of whether a financial agreement is valid, enforceable or effective are to be determined by the “Court”, “Court” being the Family Court of Australia.^[13]
31. [31]
    In all of the circumstances, this being an application to enforce or to seek payment of a “debt” arising under the terms of a Financial Agreement, or under the terms of a Lease that forms part of a Financial Agreement expressly and by implication, or under both documents jointly, the Tribunal does not have jurisdiction to hear it.

Orders

32. [32]
    The application is dismissed for want of jurisdiction.