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Ray White IMS v Scott QCATA 186
Ray White IMS v Scott  QCATA 186
Ray White IMS
On the papers
Senior Member Stilgoe OAM
22 December 2015
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where rent to buy agreement – where rent in arrears – where tenant disputed rental ledger – where agent conceded error in ledger – where tribunal found no jurisdiction – where tribunal dismissed application – whether grounds for leave to appeal
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 35, s 280(1)(a), 337(2)(c), 349
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur  QCA 294
Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- Joanne and Troy Scott bought their home on a “rent to buy” plan. After they signed the contract, responsibility for collecting rent was transferred from the vendor’s agent to Ray White IMS. Ray White believed that the Scotts were behind in their payments so issued a notice to remedy breach and then a notice to leave. It filed an application to terminate the Scotts’ tenancy agreement. The tribunal refused that application.
- Ray White IMS wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
- Ray White has two grounds of appeal. Firstly, it submits that the tribunal wrongly found that it had no jurisdiction to consider the application because of the effect of s 35 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act). Secondly, it submits the tribunal erred in finding an error on the face of the rental ledger which rendered the notice to remedy breach, and therefore the notice to leave, invalid.
Did the tribunal err in the application of s 35 of the RTRA Act?
- Section 35 of the RTRA Act states that the Act does not apply to residential tenancy agreements that are rental purchase plan agreements. ”Rental purchase plan agreement” is defined in the RTRA Act as an agreement between the State and the buyer.
- As Ray White points out, the State was not a party to this transaction. Therefore, s 35 did not apply and the tribunal erred in its finding that it had no jurisdiction. Leave to appeal should be allowed.
Did the tribunal err in its finding that there was an error on the face of the rental ledger?
- Ray White submits the tribunal erred in preferring the Scotts’ oral evidence that they sent a “legion” of correspondence about the ledger errors even though they produced no documentary evidence in support. Ray White submits that, had the tribunal properly considered the correspondence that was before it, it would not have concluded in the Scotts’ favour.
- I agree that the lack of documentary evidence from the Scotts was a concern. The tribunal, in fact, told the Scotts that they had not presented their case correctly. The tribunal should have been given copies of the Scotts’ payslips which, they say, showed payments to Ray White.
- On the other hand, Ray White’s representative admitted that there was an error in the ledger and it took no steps to verify its accuracy.
- The Scotts admitted that they were in arrears of rent by $50. The weekly rent was $440. A notice to remedy breach can only be issued if the rent payable has remained unpaid for at least 7 days. If the Scotts were only $50 behind at the date the notice to remedy breach was issued, then the notice was invalid. The evidence before the tribunal did not allow it to form a different view about the validity of the notice to remedy breach.
- Even though the tribunal has power to waive defects in a notice to leave, there is no corresponding power to waive defects in notices to remedy breach. The evidence could support the tribunal’s finding that the notice to remedy breach was defective and I can find no compelling reason to come to a contrary view.
Should the appeal be allowed?
- The main reason the tribunal refused the termination order was Ray White’s failure to demonstrate the validity of the notice to remedy breach. That finding did not depend on the application of s 35 of the RTRA Act. Therefore, the tribunal’s error in that regard does not infect its decision to refuse the termination order.
- Further, even if a party can demonstrate that a notice to remedy breach and a notice to leave was validly given, the tribunal is not compelled to make an order. The tribunal may make the order if it is satisfied that the breach justifies terminating the agreement.
- The evidence before the tribunal was that the Scotts were $50 in arrears. That is not a good enough reason to terminate a rent to buy contract. I would not exercise my discretion differently in any event without hearing from the parties as to the current status of that agreement.
- Leave to appeal is granted. The appeal is dismissed.
 QCAT Act, s 142(3)(a)(i).
 Pickering v McArthur  QCA 294 at .
 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
 Chambers v Jobling (1986) 7 NSWLR 1 at 10.
 Transcript page 1-9, lines 22 – 29.
 Transcript page 1-10, lines 8 – 42.
 Transcript page 1-6, lines 43 – 44; page -7, lines 30 – 31.
 RTRA Act s 280(1)(a).
 Ibid s 349.
 Ibid s 337(2)(c).
- Published Case Name:
Ray White IMS v Scott
- Shortened Case Name:
Ray White IMS v Scott
 QCATA 186
Senior Member Stilgoe OAM
22 Dec 2015