Miller v Bridgebury Real Estate Pty Ltd
[2020] QCATA 178
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- Unreported Judgment
- Miller v Bridgebury Real Estate Pty Ltd[2020] QCATA 178
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Miller v Bridgebury Real Estate Pty Ltd[2020] QCATA 178
Miller v Bridgebury Real Estate Pty Ltd[2020] QCATA 178
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Miller & Ors v Bridgebury Real Estate Pty Ltd [2020] QCATA 178 |
PARTIES: | COREY MILLER, SARAH ROSSITER, EMILY ROSSITER (applicant/appellant) v BRIDGEBURY REAL ESTATE PTY LTD (respondent) |
APPLICATION NO/S: | APL104-19 |
ORIGINATING APPLICATION NO/S: | Pine Rivers MCDT0378/18 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 7 February 2020 |
HEARING DATE: | 5 February 2020 |
HEARD AT: | Brisbane |
DECISION OF: | Dr J R Forbes, Member |
ORDERS: |
|
CATCHWORDS: | APPEAL – APPLICATION FOR LEAVE TO APPEAL – tenancy agreement – application for arrears of rent – whether landlord received insurance against tenants’ default – whether any insurance received stands to the tenants’ credit – whether application brought within time – whether claim statute barred by section 419 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) – whether position modified by section 417 of that Act – whether error of law shown – whether leave to appeal should be granted – whether appeal should be allowed – where leave to appeal granted and appeal allowed Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 362, s 402, s 417, s 419. Bourke v Kenjad Rentals [2019] QCATA 81 Cleak v Hirt [2013] QCATA 321 Daminato v Ingle & Ors [2012] QCATA 233 Durrand & Anor v Karaolis & Anor [2012] QCATA 182 Hughes & Anor v Garnett [2017] QCATA 26 Parktrent Properties Group & Ors v Hancox [2018] QCATA 90 Raymond v Doidge [2012] QCAT 163 Realgo Investments Pty Ltd v Daley [2013] QCATA 81 Routley v Philip & Anor [2019] QCATA 119 Sunners v Define Property Mooloolaba & Ors [2013] QCATA 289 Scholefield v High Surf Resorts Pty Ltd [2013] QCATA 157 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]In September 2017 the applicants Cory Miller, Sarah Rossiter and Emily Rossiter (`the Applicants’) leased 13 Wingara Grove Ferny Hills, Brisbane, from Matthew Klauss for 12 months. However, that arrangement did not run its full course. The Applicants defaulted, principally in the matter of rent, and left the premises on or about 22 March 2018. [1]
- [2]The present respondent Bridgebury Real Estate Pty Ltd (`Bridgebury’), as managing agent, commenced these proceedings on the landlord’s behalf [2], but not until 8 December 2018.
- [3]
- [4]In the event, Bridgebury was awarded $2315.57.
- [5]
Ground (a) An insurer has already paid the landlord
- [6]This submission accuses Bridgebury of `double dipping’. Incidentally, it ignores the fact that insurance may cost the insured a substantial amount of money, which is not refundable when a valid claim is paid out. But further, the Applicants face practical problems of proof. There is some evidence that a claim was made [8], but no evidence of payment, or the amount (if any) of such payment. [9]
- [7]An appeal to the doctrine of subrogation is more rhetorical than enlightening:
`The law of subrogation protects us against this application ... The law of subrogation protects us’. [10]
- [8]But to the extent that an insurer indemnifies its insured, any related right of action effectively passes to the insurer, to whom the insured, in principle, is accountable if the insurer does not formally take charge of the action. [11] Whether such an accounting actually occurs is a matter between insurer and insured.
- [9]There is no substance in this ground of appeal.
Ground (b) Is the landlord’s action statute barred?
- [10]Section 419 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) deals with actions by lessors and tenants for breaches of residential tenancy agreements. Clearly a failure to pay rent as it becomes due is such a breach. However, subsection 419(3) provides that any such application must be made within 6 months after the lessor (in this case) `becomes aware of the breach’. As keeper of the landlord’s accounts Bridgebury was no doubt well aware in mid-April 2018 of the arrears for the period ending on 10 April 2018. [12]
- [11]Section 419(3) (`the time limit’) is a mandatory, substantive provision, not a mere matter of procedure that the Tribunal may relax. Appellate decisions of this Tribunal to that effect, including judgments of judicial members, are legion. [13]
- [12]The Applicants expressly raised the time limit issue at the trial. [14]
- [13]The Adjudicator responded:
But an application to the RTA [15] is considered to be an application to the tribunal. There are appeal decisions on that which confirm that. [16]
- [14]There the issue rested, as submissions on a different point were made. The learned Adjudicator did not cite any relevant decision, but it is evident that he had in mind, primarily, the recondite [17] section 417(2) of the RTRA Act:
A reference in the provision to the making of an application about the dispute issue includes a reference to the making of a dispute resolution request to the authority about the dispute issue.
- [15]There does not appear to be any higher authority on that provision, but it appears well settled by appellate and other decisions of this tribunal that when section 417 is engaged –
It follows that where the rent dispute has been referred to the RTA, the clock stops on the date of that reference and not when the claim for rent arrears is made to the Tribunal. [18]
- [16]And further:
Making a dispute resolution request to the Residential Tenancies Authority is deemed to be making an application about the matter to the Tribunal. [19]
[U]nder s 417(2) the relevant date for calculating the limitation period under s 419(3) ... is when a dispute resolution request is made to the Residential Tenancy Authority. [20]
- [17]What is the factual position in this case? The initiating process was filed on 8 December 2018. Bradbury was aware, or should have been aware of the breach relied on within a few days of 10 April 2018, that is, the terminal date of the relevant rent period. [21]
- [18]The time lapse between mid-April 2018 and the filing in the Tribunal on 8 December 2018 is manifestly in excess of six months. However, the effect of section 417 must also be considered.
- [19]A significant document in evidence is a letter from the Residential Tenancies Authority to Bridgebury, dated 15 November 2018, and noting:
Date Dispute resolution request received: 13/11/2018.
- [20]In effect, that document backdates the commencement of proceedings to mid-November 2018, but that is of no assistance to Bridgebury, for it still follows that the proceedings were commenced out of time. The `strict’ [22] requirements of section 419 still bar the action.
- [21]Accordingly the award of $2315.57 to Bridgebury cannot stand. Leave to appeal must be granted and the appeal allowed.
- [22]It is unnecessary to consider the third ground of appeal, alleging failure to mitigate. Suffice it note that section 362 is not concerned with claims for arrears of rent.
- [23]According to an email from Bridgebury to QCAT dated 19 June 2019, and notwithstanding the application for leave filed on 30 April 2019, the Applicants have already paid the amount of the primary judgment to Bridgebury. If that is so, the amount so paid will now be refundable to the Applicants as moneys had and received to their use.
ORDERS
- The application for leave to appeal is granted.
- The appeal is allowed.
- The order made herein by the Tribunal on 2 April 2019 is set aside.
- If the Applicants have already paid the amount of the primary judgment to Bridgebury, that company must refund that amount to the Applicants within fourteen days of notice of this decision.
Footnotes
[1] Transcript of hearing 2 April 2019 (`T’) page 6 line 28.
[2] Pursuant to Clause 43 of the standard REIQ agreement.
[3] 2 April 2019.
[4] T page 21 lines 26-29; page 29 line 44.
[5] Dispute application filed 8 December 2018 page 3 Part C.
[6] There is no appeal as of right; leave to appeal is required by s 142(3)(a)(i) of the QCAT Act.
[7] Application for leave to appeal filed 30 April 2019 page 3.
[8] Submissions of Applicants to tribunal 2 April 2019.
[9] T page 25 lines 41-45 (Smith).
[10] T page 25 lines 25, 46.
[11] Meagher, Gummow and Lehane Equity, Doctrines and Remedies 2nded Butterworths 1984 paragraphs 930, 932.
[12] Bridgeway’s diligent scrutiny of accounts is evidence by a series of Notices to Remedy Breach; see e.g. Notice dated 3 April 2018.
[13] See for examples Bourke v Kenjad Rentals [2019] QCATA 81 at [4], Cleak v Hirt [2013] QCATA 321 at [6] (Deputy President), Daminato v Ingle & Ors [2012] QCATA 233 at [6], Realgo Investments Pty Ltd v Daley [2013] QCATA 81 at [4]. Durrand & Anor v Karaolis & Anor [2012] QCATA 182 at [6] (Wilson J, President).
[14] T page 24 line 45ff. Page 25 lines 9-10.
[15] Residential Tenancies Authority. As to applications to the RTA see Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (`RTRA Act’) s 402.
[16] T page 25 lines 12-13.
[17] `This provision could be better worded’: Parktrent Properties Group & Ors v Hancox [2018] QCATA 90 at [13] per Member Howe.
[18] Raymond v Doidge [2012] QCAT 163 at [35].
[19] Parktrent Properties Group & Ors v Hancox [2018] QCATA 90 at [13]
[20] Routley v Philip & Anor [2019] QCATA 119 at [10]. See also Sunners v Define Property Mooloolaba & Ors [2013] QCATA 289 at [6], Scholefield v High Surf Resorts Pty Ltd [2013] QCATA 157 at [7], Hughes & Anor v Garnett [2017] QCATA 26 at [10].
[21] As recorded in T page 21 lines 26-29; page 29 line 44.
[22] Realgo Investments Pty Ltd v Daley [2013] QCATA 81 at [7] per Horneman-Wren Deputy President.