Hunt v Lewis[2022] QCATA 142

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Between April 2018 and October 2020, Ms Hunt rented a house property at the Sunshine Coast owned by Mr and Mrs Lewis.  Conflict about the tenancy manifested ultimately in proceedings before an Acting Magistrate sitting as the tribunal at Caloundra, heard on 1 March 2021. 
2. [2]
   Ms Hunt now wishes to appeal orders made in those proceedings. No written reasons were given. A transcript of the proceedings is before this appeal tribunal.

The Nature of the Parties’ Claims and the Orders Made

3. [3]
   The conflict between the parties centred on three issues which can be broadly described as maintenance and repairs; electricity charges; and the sole use and quiet enjoyment of the rental premises.
4. [4]
   Three applications concerning those issues were heard together by the Acting Magistrate:

   1. (a)
      Ms Hunt’s application which sought orders: “that maintenance works be performed as detailed in [an] attached statement”; a payment of “$221.35 toward” an electricity bill which was also attached; and a “rent reduction for a total of $24,778.65 …”^[1] (which related to the exclusive use / quiet enjoyment issue);
   2. (b)
      Mr and Mrs Lewis’s counter application which sought a payment of $5454.64 “as compensation for their loss directly caused by [Ms Hunt’s] failure to provide vacant possession as had been ordered”; and
   3. (c)
      An application by Mr and Mrs Lewis to strike out Ms Hunt’s application. 

The Orders

5. [5]
   A handwritten file note (apparently made at the conclusion of the hearing on 1 March 2021) records, under a heading “Order”:

… found the dispute about sub leasing and mtce^[2] issues was not lodged by [Ms Hunt] with the s 419 time limit of 6 months.  Therefore that part of the claim is struck out.

6. [6]
   The sealed Orders^[3] provide differently:

[Ms Hunt] is awarded the sum of $80 to cover the electricity for the rumpus room owed by [Mr and Mrs Lewis].  This amount will come out of what is awarded to [Mr and Mrs Lewis] in regards to their counterclaim.

Respondents counter-claim

[Ms Hunt] is to pay the sum of $2,763.98 to [Mr and Mrs Lewis].  In part satisfaction of this claim I order the RTA pay out to [Mr and Mrs Lewis] the full bond of $1,860”.^[4]

7. [7]
   The sealed orders contain no order in respect of the Lewis’s strike out application.  Nor is any order made in respect of Ms Hunt’s claim for compensation pertaining to her exclusive use / quiet enjoyment claim. 
8. [8]
   Notwithstanding the handwritten notation to the opposite effect, no part of Ms Hunt’s claim was in fact struck out.  Evidence and submissions were heard in respect of all three components of it. The true position is that Ms Hunt’s claim in respect of electricity use was partially successful and her claims in respect of maintenance and sole use / quiet enjoyment were both dismissed. 
9. [9]
   Appeals (and applications for leave to appeal) are from orders.  Each of the parties have proceeded before this appeal tribunal as if an order for dismissal of each of Ms Hunt’s maintenance and sole use claims was made.  It seems clear from the transcript that this is the substantive effect of what the Acting Magistrate intended. 
10. [10]
    Given the legislative mandates as to the tribunal’s objects and functions,^[5] it is appropriate to frame these proceedings as pertaining to Orders dismissing those two claims. 

Ms Hunt’s Failure to Seek Leave To Appeal

11. [11]
    Ms Hunt’s application for appeal was filed within the time prescribed.^[6] It asserts – via her ticking the relevant box on the standard Form 39 application – that leave to appeal is not required.  That is incorrect. The impugned orders are made in a “tenancy matter” and, therefore, a “minor civil dispute”. ^[7] As a result, leave to appeal is required.^[8]
12. [12]
    Section 143 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) might be seen to contemplate separate consideration of the application prior to the hearing of any appeal. No procedural order directed they be heard together but both parties indicated clearly to this tribunal that they wished this to occur. 
13. [13]
    An applicant for leave must provide reasons for its grant in their application.^[9] Ms Hunt’s erroneous assumption that leave to appeal is not required led in turn to her application (and subsequent written submissions) containing her grounds of appeal and arguments in support of the same, but no separate reasons for the grant of leave.
14. [14]
    It is understandable that a self-represented party might not appreciate the distinct requirements and procedures for leave to appeal.  Ms Hunt plainly did not.  Neither did Mr and Mrs Lewis, who also self-represented.  Their responsive arguments are also directed to the merits of the appeal.  Those arguments can be seen to also pertain to the issue of prejudice which is relevant to the application for leave.
15. [15]
    It is appropriate and just to treat Ms Hunt’s filed application for appeal as an application for leave to appeal.  Equally, if s 143(2)(b) of the QCAT Act – read in light of ss 143(3) and (4)(a) and (b) of that Act – is to be seen as requiring the filed application to specify reasons for leave separate from reasons for the appeal, in this case that requirement should be waived.^[10] Mr and Mrs Lewis suffer no prejudice in either event. It is also appropriate to hear both application and appeal together as both parties desire.
16. [16]
    Established principles govern the grant of leave to appeal. The inquiry is directed to whether an arguable case of error attends the decision and whether the error has caused the applicant a substantial injustice.^[11]

What Are the Asserted Errors?

17. [17]
    Ms Hunt’s assertions of error and resultant injustice lack legal precision. Again, that is understandable. In many respects, her arguments seek to reagitate arguments unsuccessful before the Acting Magistrate.  Other assertions of “error” misapprehend an appeal tribunal’s task.  Examples are the assertion which refers to evidence of the Lewis’s said to be false which is said to constitute error, and her reliance upon an assertion that alleged breaches of “tenancy law’ are themselves appealable errors. 
18. [18]
    However, taken together, Ms Hunt’s formal Form 39 application and her lengthy written submissions reveal contentions referable to recognisable appealable errors. With some reframing, the following errors are asserted to have been made by the Acting Magistrate:

    1. (a)
       Erred in law in concluding that the provisions of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“RTRA Act”) operated to “bar” Ms Hunt’s claim;
    2. (b)
       Misapprehended the nature of Ms Hunt’s claims in respect of her exclusive use and quiet enjoyment of the rental premises and denied her procedural fairness by failing to properly hear and determine her case for compensation in respect of that breach;
    3. (c)
       Failed to take account of relevant considerations and made a significant error of fact in the calculation of the amount due to Ms Hunt in respect of electricity charges; and
    4. (d)
       Denied her procedural fairness by failing to properly hear and determine her case for compensation arising from a breach of the Lewis’s obligation to maintain the rental premises in a condition fit for her to live in.

Is There Error in the Application of the RTRA Act?

19. [19]
    Section 419 of the RTRA Act permits an application to the tribunal to be made if, relevantly, a tenant “… claim[s] there has been a breach of a ‘residential tenancy agreement’”. 
20. [20]
    A “residential tenancy agreement” is defined to mean “an agreement under which a person gives to someone else a right to occupy residential premises as a residence”.^[12] The claim survives the end of the tenancy.^[13] 
21. [21]
    However, the RTRA Act limits the making of such an application in two ways. First, an application can be made “only if” a dispute resolution request has been made and determined in a manner specified in the Act.^[14]  If that precondition is met, a second limitation applies.  An application “must be made within 6 months after the … tenant … becomes aware of the breach”.^[15] The two limitations marry by s 417 of the Act in effect deeming the application to the tribunal to have been made when the dispute resolution request was made.

What is the Factual Context Relevant to This Issue?

22. [22]
    A simmering controversy between the parties – manifested also in continual interruptions by one party of the other in the proceedings before the Acting Magistrate – concerned whether a friend of Mr and Mrs Lewis was living in the rumpus room^[16]   of the tenanted premises.  Beneath that controversy and the cacophony of interruptions, a centrally relevant fact was, ultimately, uncontroversial.  There can be no doubt on the evidence before the Acting Magistrate that Ms Hunt was not given exclusive use of the rental premises during any of the three separate “residential tenancy agreements” which governed Ms Hunt’s occupation of the property.
23. [23]
    As the Acting Magistrate observed, Mr and Mrs Lewis “admitted that this [friend of the Lewis’s] attended during the day because they didn’t want him to be there on the premises with … [their] daughter alone”.^[17]  Mrs Lewis clarified this evidence before this tribunal, saying that the friend used the rumpus room “on average three or four days per week” and on those occasions would be at the premises for “about seven hours”.
24. [24]
    Against that background, it was also not controversial that:

    • The parties entered three separate residential tenancy agreements from April 2018 until October 2020: the first two tenancies of twelve months duration, and the third six months.
    • Each of the three agreements provided for Ms Hunt’s sole use and occupation of the rental premises and for her to have quiet enjoyment of them.
    • None of the three agreements made any reference to the use of any part of the premises by any person other than Ms Hunt.
    • No negotiation about exempting any part of the rental premises took place in respect of any of the three agreements and nor was any informal request made to that effect.^[18] 
25. [25]
    Equally, it was also not controversial that Ms Hunt:

    • Entered the residential tenancy agreements in April 2019 and April 2020 knowing that a person had been using part of the premises and likely continued intending to do so.
    • Did not lodge either a dispute resolution request (or a notice to remedy breach)^[19] in respect of either of the 2018 and 2019 tenancies.
    • Did not apply to the tribunal in respect of any asserted breach of either of those two tenancy agreements.
26. [26]
    Ms Hunt did lodge a notice of dispute resolution (and notice to remedy breach) in respect of the third tenancy agreement. Each of those notices referred to the asserted breach of the covenants for exclusive use and quiet enjoyment.

Why Did the Acting Magistrate Dismiss Ms Hunt’s Claim?

27. [27]
    It is reiterated that no written or oral reasons were provided by the Acting Magistrate for his decision.  Toward the end of the hearing, the Acting Magistrate asked Ms Hunt: “so what else are you claiming”.  In response Ms Hunt referred to the exclusive use / quiet enjoyment claim to which the Acting Magistrate replied:

Rent reduction?  You never applied for it.  So why would I give it to you now?^[20]

28. [28]
    Read in the context of the interchanges which preceded that comment, the reference to “never applied for it” is, it seems plain, a reference to there having been no application to the tribunal by Ms Hunt when she first became aware, in about August 2018, of the Lewis’s friend’s use of the premises. Ultimately, the Acting Magistrate said:

You’re barred from it from the fact that you did not apply within six months of you having a dispute over - - - someone else living there.^[21]

…

I rule in respect of that that the six-month rule applies.  You failed to do that [institute proceedings]. Even though you didn’t know it [i.e. the relevant time limitation] that does not mean that you can avoid …  that requirement.^[22]

29. [29]
    There can be little doubt that the Acting Magistrate sought to apply the s 419 limitation period from when Ms Hunt first became aware of the friend’s use of the premises in August 2018.  Nothing within the transcript contains any reference to the limitations contained within s 416 of the RTRA Act (or to s 417).
30. [30]
    Clearly, Ms Hunt’s claim in respect of exclusive use and quiet possession was dismissed because no application was filed within six months of her becoming aware of the breach in August 2018.

Is There Appealable Error?

31. [31]
    There is no doubt that Ms Hunt was aware of the asserted breaches of the 2018 and 2019 residential tenancy agreements.  As no notice of dispute resolution was lodged in respect of either agreement, s 416 of the RTRA Act precludes Ms Hunt from making an application to the tribunal in respect of any asserted breach of either. 
32. [32]
    The tribunal does not have power to waive the s 416 (or s 419) requirements; each goes to the tribunal’s jurisdiction.^[23]
33. [33]
    No evidence disputes the contention of Ms Hunt, which was before the Acting Magistrate, that she gave a notice of dispute resolution in respect of the 2020 residential tenancy agreement.^[24]  There can be no doubt that s 416 of the RTRA Act is satisfied in respect of that agreement.  The limitation as to time prescribed by s 419 becomes applicable accordingly.
34. [34]
    The Acting Magistrate’s approach, evidenced in the passages earlier quoted, plainly mirrors the approach contained within written submissions prepared by the Lewis’s lawyer and filed in support of their strike out application.  Both submissions and transcript make no reference to s 416.  In respect of s 419 the submissions contend:

The Applicant submits in her application that despite becoming aware of the alleged breaches of the tenancy agreement by the Respondents in May 2018 (electricity) and on 1 August 2018 (quiet and peaceful enjoyment), the Applicant decided to commence proceedings in October 2020, some 25 months after first becoming aware of the alleged breaches.^[25] [Bold emphasis added].

35. [35]
    The use of the singular in the emphasised phrase would appear to assume that one residential tenancy agreement covered the whole of the 2018 – 2020 period.  That is, of course, incorrect – there were three separate agreements covering that period.
36. [36]
    In applying the s 419 limitation, the submissions assume, as again does the Acting Magistrate, that awareness of the relevant breach of the 2018 agreement in August 2018 is determinative of the awareness which activates the s 419 time limitation applicable to the asserted breach of the 2020 agreement.  In this tribunal’s opinion, that too is erroneous.
37. [37]
    The tenancy rights and obligations of Mr and Mrs Lewis on the one hand and Ms Hunt on the other were dictated by three separate agreements.  Ms Hunt could not prosecute a breach of the 2020 agreement based on acts or omissions referable to the 2018 agreement; the conduct founding any such breach must be attributable to the 2020 agreement. 
38. [38]
    The fact that, as in this case, the same continuing conduct might found asserted breaches of each of the 2018, 2019 and 2020 agreements does not alter that position.  Although the conduct continues across all three agreements, in so far as it constitutes “a breach of a term of a residential tenancy agreement”, the conduct must be attributable to the agreement whose covenant has been breached. 
39. [39]
    Similarly, while awareness of the conduct might span all three agreements, s 419(3) applies not to the conduct but to the breach of the covenant of the relevant agreement.   The s 419(3) time limitation runs from when awareness of the breach of the relevant terms of each separate agreement arises. Ms Hunt’s awareness first arose in August 2018.  Thereafter the conduct continued, but her awareness of the breach of each subsequent agreement arose when each agreement commenced. 
40. [40]
    Relevantly, then, the s 419 time limitation in respect of the 2020 agreement commenced on 7 April 2020. Section 419 requires that Ms Hunt’s application to the tribunal needed to be made by 6 October 2020.  Her application was filed on 3 November 2020.  However, Ms Hunt lodged her notice of dispute resolution on 28 June 2020.  Section 417 of the RTRA Act operates to treat that application as an application to the tribunal.  The consequence is that Ms Hunt’s application is properly made within time.
41. [41]
    In this tribunal’s opinion, the Acting Magistrate erred in:

    • Failing to apply s 416 of the RTRA Act; and
    • Misapplying the provisions of ss 417 and 419 of that Act.
42. [42]
    The arguments by Ms Hunt in support of her contention that she was denied natural justice by her claim for compensation not being properly considered are effectively bound up in the error just considered.
43. [43]
    The application to the tribunal was properly brought.  It properly founds an application for compensation which was not considered by the Acting Magistrate.  A substantial injustice to Ms Hunt has occurred accordingly. 
44. [44]
    Leave to appeal should be granted and the appeal allowed.

Is There Error in the Calculation of Electricity Charges?

45. [45]
    Mrs Lewis conceded before this tribunal that an amount was due to Ms Hunt arising from the use of electricity in the rumpus room by the Lewis’s friend.  She also agreed that the amount payable should have been simply calculated by means of deducting the metered usage for the rumpus room from the total metred usage for the premises.
46. [46]
    The Acting Magistrate was not assisted in dealing with this issue by a course of continual interruptions of one party by the other which marred the proceedings generally and which further confused this issue.  Ultimately, the Lewis’s managing agent gave evidence of some form of “averaging” to arrive at a (rounded) figure of $80 payable to Ms Hunt out of total electricity charge of $294.39.
47. [47]
    It is not possible to discern how that “averaging” was done by reference to the transcript of proceedings or the evidence before this tribunal.  The basis of Ms Hunt’s claim for half of the total amount does not appear to have been considered by the Acting Magistrate.  The evidence which informed the conclusion as to an $80 payment is not apparent.  Mrs Lewis was unable to explain it. 
48. [48]
    Mrs Lewis accepted before this tribunal that the figure arrived at appeared erroneous and conceded that a further $68 should have been payable to Ms Hunt. In effect the concession is that the Acting Magistrate made an error of fact or, alternatively, failed to take account of relevant considerations, namely electricity usage in the rumpus room not accounted for.

Is There Error in Respect of Maintenance of the Premises?

49. [49]
    The maintenance claim centred on an assertion that the Lewis’s failure to maintain the rental premises as fit for Ms Hunt to live in^[26] allowed significant mould to develop which in turn produced medical conditions productive of considerable expense to Ms Hunt. 
50. [50]
    Ms Hunt admitted that she had no medical report that “associated [her] condition to the [rental premises]”. There was plainly insufficient evidence before the Acting Magistrate by which any such claim could be made out. 
51. [51]
    No arguable case of error is established. 

What Orders Should Be Made by this Tribunal?

52. [52]
    Consequent upon the grant of leave and the allowing of the appeal, this tribunal should set aside the order dismissing Ms Hunt’s claim for compensation and itself determine the question of compensation for Ms Hunt in respect of established breaches of the covenants for exclusive use and quiet enjoyment of the rental premises during the 2020 tenancy.
53. [53]
    There is no appeal from the tribunal’s orders requiring Ms Hunt to pay compensation of $2763.98 to Mr and Mrs Lewis.^[27] Those orders result from proceedings in which Mr and Mrs Lewis obtained a warrant of possession consequent upon termination of the 2020 agreement.  This amount was part satisfied by a tribunal order forfeiting Ms Hunt’s rental bond to the Lewis’s.  The balance of $903.98 remains owing.
54. [54]
    No guidance is provided in s 420 of the QCAT Act as to the calculation of compensation. No statutory factors are prescribed to be considered. A broad discretion is apparently contemplated.
55. [55]
    Ms Hunt calculates her claim for compensation mathematically – half of the rent payable from the commencement of the agreement until the tribunal-ordered cessation of the tenancy.  Mrs Lewis submitted that if, contrary to her position, compensation was to be ordered, 20% of the rental calculated to the end of the tenancy agreement is a fairer figure.^[28]
56. [56]
    Those calculations are not determinative of the exercise of discretion. Factors considered relevant to the exercise of the discretion are:

    • The interference was extensive and long-standing.
    • A right to the interference was apparently assumed by Mr and Mrs Lewis and occurred without any attempt to negotiate with Ms Hunt about her non-exclusive use of the premises.
    • The issue was raised with the managing agents in respect of the 2020 agreement but not addressed by them or Mr and Mrs Lewis.
    • There was no notice of breach given by Ms Hunt in respect of earlier tenancies and the notice of breach in respect of the 2020 tenancy occurred approximately halfway through it.
    • Neither party sought to address the issue formally prior to entering the 2020 agreement.
    • There was a measure of physical separation between the “rumpus room” and the balance of the premises.
    • Proceedings for possession of the premises was obtained only after a tribunal order which involved compensated expenses.
57. [57]
    Compensation in an amount of $4000 should be awarded. 
58. [58]
    That order should be effected by ordering Mr and Mrs Lewis to abandon any claim to the balance of $903.98 owing pursuant to the orders unaffected by this appeal, and a payment by them to Ms Hunt of $3096.02.  The balance of the amount earlier ordered has remained unpaid by Ms Hunt for almost two years.  Five months will be allowed for Mr and Mrs Lewis to pay the amount ordered.
59. [59]
    The orders of this tribunal are:

8. The application for appeal from orders of the tribunal dated 1 March 2021 be treated as an application for leave to appeal those orders.

9. In so far as s 143 of the Queensland Civil and Administrative Tribunal Act 2009 requires an application for leave to appeal be made separately from an application for appeal, that requirement be waived, and the application and the appeal be heard together.
10. Leave to appeal the Orders made by the Tribunal on 1 March 2021 (as amended) be granted.
11. The appeal from the Orders made by the Tribunal on 1 March 2021 (as amended) be allowed in part.
12. The orders made by the Tribunal on 1 March 2021 (as amended) be varied as follows:
    1. (a)
       The Order dismissing the Applicant’s claim for compensation for breaches of the covenants of exclusive use and quiet enjoyment of the tenanted premises the subject of a residential tenancy agreement dated 7 April 2020 be set aside.
    2. (b)
       BY CONSENT the Order for the payment of $80 by the respondents to the applicant in respect of electricity charges be varied to provide the respondents pay to the applicant an additional amount of $68.
13. The respondents pay to the applicant the sum of $4,000 by way of compensation for breaches of the covenants of exclusive use and quiet enjoyment of the rental premises the subject of a residential tenancy agreement dated 7 April 2020. 
14. The sum ordered to be paid in Order 6 be satisfied by the respondents:
    1. (a)
       abandoning any right or claim to the balance of $903.98 owed to them by the applicant pursuant to the orders of the Tribunal made on 1 March 2021; and
    2. (b)
       paying to Ms Hunt the sums of $3096.02 and $68 on or before a date five months from the date of these orders.