Symes v Kahler[2022] QCATA 35

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction 

1. [1]
   In February 2019 the applicant for leave (`Symes’) leased a residence owned by the respondent (`Kahler’) in the township of Middlemount, in the central Queensland coalfields.
2. [2]
   The lease expired on 7 February 2021^[1], whereupon Symes became a periodic tenant.^[2]
3. [3]
   In Middlemount, as in other contemporary mining towns, accommodation tends to be scarce and expensive. Originally Symes paid a remarkably modest rent of $130 per week, but when the purported lease expired, Kahler raised it to $250 per week.
4. [4]
   Soon afterwards Symes’ rent fell into arrears. By the 11 April 2021 some $1,300 was outstanding.^[3] At the time of the hearing the debt was $4,090.^[4]
5. [5]
   On 26 April 2021 Kahler gave Symes a Notice to Remedy Breach relating to unpaid rent and a water bill for $179.30.^[5] Compliance by 5 May 2021 was demanded.
6. [6]
   On 27 April 2021, seven clear days before the deadline for compliance, Kahler issued a Notice to Leave^[6], without grounds. It required Symes to vacate the residence by midnight on 5 May 2021. She did not comply.
7. [7]
   Symes denies that the notice to leave was duly served, but the judge of fact^[7] reasonably rejected that claim.^[8]

Action commenced and primary decision

8. [8]
   By application marked as filed in the Brisbane registry on 25 May 2021 Kahler sought an order for termination of Symes’ periodic tenancy, and a warrant of possession.
9. [9]
   The initial application was heard and decided on 23 June 2021, when the Tribunal ordered that:

The residential tenancy between the parties be terminated from midnight on 30 June 2021 on the grounds of failure to leave.

A warrant of possession to issue authorising a police officer to enter the premises at ... Middlemount.

The warrant shall take effect on 1 July 2021 and remain in effect for 14 days, to expire at 6.00 pm on 15 July 2021.

Leave to appeal sought

10. [10]
    Symes now seeks leave to appeal^[9] against that decision on six grounds.

First ground:  Was the application out of time?

11. [11]
    Section 293(2) of the RTA provides that an application for termination for failure to leave must be made within 2 weeks after the handover day.^[10] This provision is mandatory; no relaxation is permissible.^[11]
12. [12]
    Symes submits that the application was made twenty days after service of the notice to leave.

13. [13]
    If 25 May 2021 were indeed the filing date of Kahler’s Form 2, the application for ouster would be incurably^[12] out of time. Given that the notice to leave was issued on 26 April 2021 the mandatory time limit expired on 19 May 2021. However, Kahler testified that he lodged the application in the Sandgate registry on 19 May 2021. On production of an appropriate official receipt^[13] the tribunal was satisfied that the application was not out of time. (Apparently Sandgate sent it to the principal registry a few days later, and the Form 2 bears the date of receipt there, instead of the date of lodgement at Sandgate). Findings of fact are the prerogative of the primary tribunal and where, as here, there is evidence clearly capable of supporting a disputed finding, it will rarely be disturbed on appeal.^[14]

14. [14]
    For the above reasons the first ground of the proposed appeal is rejected.

Second ground: Did the notice to leave allow due time for compliance?

15. [15]
    Sub-section 329(2)(j) materially provides that the handover day^[15] for a lessor’s notice to leave without grounds to a periodic tenant must not be earlier than 2 months after the notice is given.^[16]  
16. [16]
    As noted above^[17] the subject notice to leave was stated to be without grounds and allowed only seven clear days for compliance. If, instead, it had simply spelt out the ground which Kahler clearly had, the result may well have been different, but for better or worse the RTA is intricate legislation, with multiple tripwires for the unwary or the ill-advised.
17. [17]
    The primary tribunal did not explicitly purport to abbreviate the prescribed period of notice, but that is the implicit effect of its order. But subsection 329(2)(j) of the RTA is not a mere matter of procedure that can be varied under section 61 of the QCAT Act. It is mandatory rule of law that defines and governs and delimits the Tribunal’s jurisdiction.^[18] Senior Member Stilgoe put it elegantly in a similar case:

The path that the agent took to proceedings in QCAT required a series of steps to be taken in order. Each stood like one in a line of dominos. If one fell it brought the others down with it.^[19]

18. [18]
    It follows, prima facie at least, that the subject decision was made without jurisdiction, and should therefore be set aside.

Point first taken on appeal

19. [19]
    However, the point raised by the second ground was not raised at the trial. Does this prevent it from being taken on appeal?
20. [20]
    Finality of litigation a vital consideration^[20], particularly in tribunals such as QCAT.^[21] Thus courts tend discourage appeals raising issues not mentioned below, particularly when the new plea, if raised at the trial, could have been the subject of contrary evidence, and it is now `too late to deal with [the issue]... fairly’^[22].
21. [21]
    In this case, however, the validity of the notice to leave is a pure question of law. There is nothing that could be achieved by additional evidence at the trial. The defective notice to leave was in evidence then, and now speaks for itself. All the facts needed to address the second ground are before the appeal tribunal as fully as if the issue had been raised at trial.^[23] It is to be borne in mind the neither the parties nor the tribunal had the assistance of professional advocacy at the trial.
22. [22]
    Another reason to entertain the section 329 point at this stage is that it goes to jurisdiction. A court may, and should consider a jurisdictional objection even if the parties do not do not do so.^[24]
23. [23]
    It follows that the subject decision and orders cannot stand, and must be set aside. The second domino in the line has fallen over.
24. [24]
    In view of my ruling on the second proposed ground of appeal it is strictly unnecessary to consider grounds 3 to 6. Most if not all of the submissions on ground 6 are irrelevant, for reasons succinctly expressed by the adjudicator:

Ms Symes, if you do have complaints about the unit, then you should have applied to the tribunal for a rent reduction, if there was [sic] issues.  The issue to be determined here today is whether or not you’ve been paying your rent as and when it’s due.^[25] 

Resolution

25. [25]
    In view of the defective notice to leave, the decision and orders made herein on 23 June 2021 must be set aside.

Remission order not appropriate

26. [26]
    How may these proceedings be expeditiously resolved?  It would be pointless to remit the matter for rehearing, because the second adjudicator would be bound to reach the same conclusion as this appeal tribunal. The existing application for relief is fatally infected by the invalid notice and so cannot be resurrected. There is no point in dragging the case out by remitting it for hearing in several weeks or month’s time. It is to be hoped that a reasonable and amicable compromise may soon bring the proceedings to an end. Meanwhile the application of Kahler, filed on 19 May 2021 must be dismissed.
27. [27]
    However, if Mr Kahler were minded to begin afresh he would not be debarred by this decision. A case that fails for jurisdictional or procedural reasons, as distinct from a decision on the merits remains res integra.^[26]

ORDERS

1. Leave to appeal is granted
2. The appeal is upheld.
3. The orders made herein on 23 June 2021 are set aside.
4. The application of the respondent Kahler, filed herein on 19 May 2021, is dismissed.