Hicks v Bell Estate Agents[2021] QCAT 313

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Solicitors for Shellston Holdings Pty Ltd have asked for reasons for the transfer of this matter to the Magistrates Court.
2. [2]
   These non-urgent proceedings commenced in the Minor Civil Dispute residential tenancy jurisdiction of the Tribunal by Mr Hicks filing a Form 2 Application on 21 May 2021. Amongst other things, he claimed refund of his tenancy bond of $8,000, compensation of $17,697.23, and (originally) some amounts “TBA” for lessor’s breach of a residential tenancy agreement and re-imbursement of rent paid. There is some complexity to the facts and legal issues raised.
3. [3]
   Shellston Holdings Pty Ltd (Shellston) is the owner of the rental property at Paradise Point on the Gold Coast which it leased to Mr Hicks. On 21 June 2021, it filed a counterapplication to Mr Hicks’ application and claims payment of outstanding rent and recovery of his bond. Shellston also claims indemnity from the (then) managing agent of the rental property, Bell Estate Agents, against any liability of Shellston to Mr Hicks attributable to the agents’ alleged negligence.
4. [4]
   The parties earlier applied to be legally represented. An order for legal representation was made. Subsequently, the Tribunal made orders and directions for filing and service of affidavits of evidence and documents on 15 July 2021. It did so upon the application of Mr Hicks filed on 13 July 2021 to reduce hearing time and narrow the issues in dispute. The case was listed for a one-day hearing on 1 September 2021 at 11:00 am.
5. [5]
   On 30 August 2021, Mr Hicks’ solicitors filed an amended claim with the Tribunal and served a copy on the other parties. In the amended claim, for which leave to amend has yet to be ordered because the amount claimed is beyond the Tribunal’s monetary jurisdiction, Mr Hicks increased his claim to include $17,669.80 for damages and a rent refund (or compensation) of $19,000, in total for $36,699.80 and return of his bond.
6. [6]
   Mr Hicks’ solicitors simultaneously filed a Form 40 Application on 30 August 2021 to transfer the proceeding to the Magistrates Court of Queensland because the claim exceeds the limit of the prescribed monetary jurisdiction of the Tribunal, viz. $25,000. That application came before me on 1 September 2021 at 8:30 am for a decision on the papers.
7. [7]
   Only Shellston’s solicitors opposed the application for a transfer. Essentially, they submit the following in the attachment to an email sent after 8:30 am to the Southport Registry.
8. [8]
   Firstly, they submit, the claim for bond refund of $8,000 should not be considered in determining whether the limit of the Tribunal’s monetary jurisdiction is exceeded.  I accept that submission. The bond is security for performance of the tenant’s obligations and remains with the Residential Tenancies Authority until an order is made about how, in what amount/s and to whom, the bond must be disbursed.
9. [9]
   Secondly, Shellston’s solicitors submit that Mr Hicks has increased his claim from $13,790.17 to $17,697.23 plus a rent reduction/refund of $19,000.00 based on section 94 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the RTRAA). They say that the rent reduction claim cannot succeed because the application was first filed after the lease ended, which Mr Hicks disputes.
10. [10]
    The law on when rent reduction claims may be brought is now well settled at the appellate level of this Tribunal. An application for rent reduction pursuant to section 94 of the RTRAA must be made to the Tribunal during the currency of a residential tenancy, not after it has ended.^[1]
11. [11]
    However, the second submission overlooks the fact that residential tenancy rent payable automatically reduces to nil during the period that a rental property is completely unliveable or if it is destroyed.^[2] Whether this particular property was wholly unliveable during the tenancy is a matter to be decided at the final hearing.  Rent mistakenly paid in the period of total unliveability (or destruction) is recoverable as a debt or liquidated demand of money in my opinion.
12. [12]
    The unstated premise of the second submission is that the Tribunal may adjudicate a claim for more than the prescribed amount of $25,000, to which QCAT’s monetary jurisdiction is limited, because the result will likely be for a liability of less than $25,000. That is incorrect. It puts the cart before the horse. It is the amount of the claim made, rather than the amount of the claim allowed, that is determinative of jurisdiction.
13. [13]
    If a claim is for more than the Tribunal’s prescribed monetary limit of $25,000 then, with one exception to which I will refer later, it cannot be adjudicated by the Tribunal. The proceeding will in that event usually be transferred to the Magistrates Court to be heard and determined there.
14. [14]
    It is appropriate to consider case precedent in this Tribunal and the history of legislative amendment of statute that limit QCAT’s monetary jurisdiction to $25,000 in claims of this character.
15. [15]
    The Appeal Tribunal in Avery & Ors v Pahwa & Anor [2018] QCATA 53, consistently with a previous decision in Hough v Department of Housing and Public Works [2012] QCAT 579, held that the monetary jurisdiction of QCAT in tenancy disputes was limitless. The Tribunal in North South Real Estate & Anor v Kavvadas [2017] QCAT 306 ruled the other way.
16. [16]
    The precedents in Avery and Hough were subsequently avoided by amendment of section 516 of the RTRAA and section 13(4) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) by the Queensland Legislature with effect from 1 September 2019.
17. [17]
    Section 516 of the RTRAA was amended to clarify and provide that if an applicant to QCAT seeks payment of more than the prescribed amount of $25,000 then reference to the right to apply to QCAT is taken to be a reference to apply … “to a court with jurisdiction for the amount or value of the relief sought.”
18. [18]
    Also, by removing the words “tenancy matter” in section 13(4) of the QCAT Act, the Queensland Legislature ensured that, except in the case of a claim that is the subject of a dispute under the Building Act 1975, chapter 8, part 2A, in terms of section 13(3) the Tribunal cannot make an order under subsection (2) (for a tenancy matter – a decision the Tribunal may make in relation to the matter under the RTRAA) that

(a) purports to require payment of an amount …. of more than the prescribed amount; or

(b) purports to grant relief of a value of more than the prescribed amount.

19. [19]
    Pursuant to section 12(3) of the QCAT Act, a “relevant person”, that is a party to a residential tenancy dispute in the present case, limits their claim “to the prescribed amount by applying to the tribunal to deal with the claim as a minor civil dispute.” This is the exception I earlier flagged. A claim for amounts exceeding $25,000 in total is deemed limited to $25,000 and the Tribunal may award interest and a filing fee on top of that.
20. [20]
    If a transfer order was not made, Mr Hicks would have to litigate a second time in the Magistrates Court for the difference of $11,699.80 assuming his claim was allowed in the amount of $25,000 plus interest (if any) and filing fee by the Tribunal. He could not make two applications to the Tribunal for those respective amounts in respect of the same dispute because that would amount to splitting of claims and, therefore, an abuse of process.
21. [21]
    On the other hand, the Magistrates Court has monetary jurisdiction to $150,000 and jurisdiction to adjudicate residential tenancy disputes involving claims greater than $25,000 which means it is within its’ monetary jurisdiction to resolve the entire dispute in this case once and for all.
22. [22]
    Mr Hicks risks “falling between two stools” if he filed an application in each of the jurisdictions claiming different amounts based on the same underlying facts and cause of action. It is possible that an Adjudicator and a Magistrate respectively might come to different conclusions on liability. A multiplicity of proceedings in different jurisdictions arising out of the same underlying facts and issues is therefore to be avoided wherever possible.
23. [23]
    Section 52 of the QCAT Act, which sets out the jurisdictional and procedural powers of this Tribunal to resolve the present problem, provides as follows:

1. (1)
   If the tribunal considers the subject matter of a proceeding or part of a proceeding would be more appropriately dealt with by another tribunal, a court or another entity, the tribunal may, by order, transfer the matter to which the proceeding or part relates to the other tribunal, the court or the other entity.
2. (2)
   If the tribunal considers it does not have jurisdiction to hear all matters in a proceeding, the tribunal may, by order, transfer the matter or matters for which it does not have jurisdiction to –

   1. a court of competent jurisdiction; or
   2. another tribunal or entity having jurisdiction to deal with the matter or matters.

24. [24]
    Both subsections to section 52 of the QCAT Act are relevant, and apply, here. In summary, the tribunal has monetary jurisdiction to $25,000, to which Mr Hicks claim is deemed statutorily limited whilst the proceeding remains here. The Magistrates Court of Queensland on the other hand has monetary jurisdiction to $150,000. It therefore has jurisdiction to adjudicate the entire residential tenancy dispute, including the counter and cross applications.
25. [25]
    Though the proceedings are currently within the Tribunal’s jurisdiction by the deeming provision of section 12(3) of the QCAT Act to which I referred earlier, the proper exercise of discretion requires that they now be transferred to the Magistrates Court in the circumstances to which I have referred.
26. [26]
    That is not to say that the Tribunal will invariably make a transfer order in every case. Each case falls to be considered on its own merits. An applicant who seeks to amend a claim to more than $25,000 for an improper purpose, that is, vexatiously, would be unsuccessful in obtaining an order for transfer. There is no suggestion that this is the case here. I do accept that the timing of the amendment, sought two days before the hearing, is unfortunate but that alone does not make the application to transfer vexatious.

Disposal

27. [27]
    In terms of section 52(7) of the QCAT Act, only a Member of the Tribunal may make a transfer order. As an Adjudicator, I do not have that power. I therefore recommended to an Acting Senior Member that he so order. He agreed and that has been done.
28. [28]
    The order made is as follows.

IT IS THE DECISION OF THE TRIBUNAL THAT:

1. Application MCDT712/21 (Southport) is transferred to the Magistrates Court at Southport as the relevant Court having jurisdiction to determine the matter.