Wardle v De Villiers[2023] QCATA 45

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

The decision the subject of the appeal

1. [1]
   This is an application for leave to appeal, and if leave is granted, an appeal from a decision of an Adjudicator made on 24 March 2022 that:

   1. Throughout the life of the current tenancy the Tenants are entitled to the full solar rebate.
   2. The respondent is to refund to the Tenants the amount of $678.78 paid by the Tenants towards the electricity account.

The parties

2. [2]
   The applicant in the application for leave to appeal and appeal is the lessor herself, Karen Wardle. The lessor was not a named party in the proceeding below. The named respondent Beyond Property Management Pty Ltd has not commenced the application for leave to appeal and is not named as a party in the appeal proceeding.
3. [3]
   By s 142 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) a “party to a proceeding” may appeal or seek leave to appeal.
4. [4]
   How then may the application for leave to appeal be prosecuted by Ms Wardle?
5. [5]
   By clause 43 of the General Tenancy Agreement and s 206 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) the tenants were entitled to proceed against Beyond Property Management Pty Ltd in its capacity as agent for Ms Wardle. S 206 of the RTRA Act provides that a proceeding may be taken against an agent as if the agent were the lessor and a tribunal may make an order against the agent as if the agent were the lessor.
6. [6]
   The RTRA Act creates a legal fiction whereby a lessor is effectively a party to the proceeding although bearing the agent’s name.
7. [7]
   The intention of the Parliament to do so is supported by s 24 of the RTRA Act which provides that where the lessor or the lessor’s agent must do something under the Act , a reference to one is a reference to the other. A combination of s 206 and s 24 of the RTRA Act work with s 39(e) of the QCAT Act to make the lessor a party to a proceeding. S 39(e) provides that a party to a proceeding is someone an enabling Act states is a party to a proceeding. On this basis Mrs Wardle is a party to the proceeding and able to make an application for leave to appeal or appeal.
8. [8]
   Also relevant is s 39(b) of the QCAT Act which provides that a party to a proceeding includes a person in relation to whom a decision of the tribunal is sought by the applicant.
9. [9]
   The point of the proceeding below was to bind the lessor and to ensure that the lessor passed to the tenants the benefit of a solar rebate applying at the premises. I consider this covers the lessor named in the proceeding as the agent. On this basis Ms Wardle is a party to the proceeding and able to make an application for leave to appeal or appeal.
10. [10]
    Similar reasoning was followed in Corcoran v Simon^[1]. As was noted in Corcoran’s case, in this case the rights liabilities and interests of the parties in the proceeding below are the same as the rights, interests and liabilities of the parties in the appeal. There can be no suggestion that the De Villiers are prejudiced by Ms Wardle conducting the application for leave to appeal or appeal.
11. [11]
    I find that Ms Wardle is a proper applicant in the application for leave to appeal or appeal.

Background

12. [12]
    The documents relevant to this matter include:

    1. (a)
       General Tenancy Agreement for a lease of premises from 8 October 2021 to 10 October 2022 signed on 30 August 2021 by the tenants, providing at item 12 that the tenant is to pay for electricity and at item 16 that electricity is to be paid for by payment to the agency within 30 days upon an invoice being issued.
    2. (b)
       Disclosure document signed by the tenants on 30 August 2021 which provides that the tenants agree to not open an electricity account.  The electricity is to remain in the lessor’s name and the tenants will be invoiced to reimburse the lessor for electricity costs incurred less a deduction of $50.00 per quarter which will be applied to the usage costs of the account, with the remainder of the costs payable by the tenants to the lessor/agent as per the terms under 18a of the General Tenancy Agreement.
    3. (c)
       Advertisement for the premises, noting amongst the property features: solar power.
13. [13]
    The respondents to this appeal, Charles and Eunice De Villiers filed an application for minor civil dispute – residential tenancy dispute on 24 March 2022 in the Minor Civil Disputes jurisdiction of the Tribunal. They sought Orders pursuant to s 169 and s 429 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act)
14. [14]
    By s 169 of the RTRA Act if the lessor and tenant do not agree about the amount of the lessor’s outgoings for electricity charges payable by the tenant then either party may apply to a Tribunal for a decision about the amount payable.
15. [15]
    By s 429 of the RTRA Act if there is a dispute between the lessor and tenant about an agreement either party may apply to a Tribunal for an order and the Tribunal may make any order it considers appropriate to resolve the dispute.
16. [16]
    The De Villiers sought orders for provision of the solar rebate to them for the past and the future and for the clause, which I take to be the disclosure document clause, to be struck out.
17. [17]
    In summary, the De Villiers say that:

    1. (a)
       the agent for the landlord at the time told them that the electricity bill will stay in the owner’s name due to the good solar rebates and “we will get the benefit of it”.
    2. (b)
       The general tenancy agreement does not say that solar rebates will not be passed on to the tenants.
    3. (c)
       Their interpretation of the disclosure document was that the electricity account would remain in the owner’s name and a payment of $50 per quarter would be applied in favour of the tenants in consideration of the account remaining in the owner’s name.
    4. (d)
       If they had known the solar rebate would not be passed onto them, they would have looked more closely at the actual cost of the electricity given that an inflated price is charged if solar rebate is given to the account holder. At the hearing the evidence given by the tenants was that they were told they would get the solar rebate and that they would not have taken the house otherwise because they would have seen that they were paying 50 per cent more for power in certain blocks by having solar panels on the house.
18. [18]
    The Adjudicator:

    1. (a)
       accepted the evidence of the De Villiers that it had been represented to them they would benefit from reduced electricity costs;
    2. (b)
       found that the agent advertised and represented to the tenants that they would get the full benefit of the solar whilst a tenant and that their only obligation was to keep the current solar account on;
    3. (c)
       accepted that the De Villiers may not have entered the lease if the solar rebate was not available;
    4. (d)
       construed the disclosure agreement as providing a deduction of $50.00 per quarter as compensation for not opening their own account, noting that the provision is not written in the plainest English;
    5. (e)
       found that the tenants are entitled to the full solar rebate and that the respondent is to refund the amount of $678.67 paid by the tenants towards the electricity.
19. [19]
    Ms Wardle’s grounds of appeal are:

    1. (a)
       the Adjudicator did not consider the terms of the General Tenancy Agreement requiring the tenant to pay electricity costs to the agent upon invoice.
    2. (b)
       The Adjudicator did not construe the Disclosure Agreement according to its clear words and misunderstood that as a goodwill measure for the tenant usage costs were to be reduced by $50 per quarter.
    3. (c)
       The Adjudicator misunderstood the effect of the rental advertisement which merely listed solar power as a feature of the property and did not say that electricity usage was free of charge.

Leave to appeal

20. [20]
    An appeal from a decision made in the minor civil disputes jurisdiction of the Tribunal can only be made with leave of the Appeal Tribunal, which must be satisfied that it is necessary to correct a substantial injustice to the appellant and there is a reasonable argument that there is an error to be corrected.^[2]
21. [21]
    The grounds of appeal raise errors of law on the part of the Adjudicator. I am satisfied that it is in the interests of justice for the appeal to proceed.

Consideration

22. [22]
    The Adjudicator did not turn her mind to s 165(3)(b)(ii) of the RTRA Act, which provides that a tenant may not be required to pay an amount for outgoings, such as the supply of electricity, that is “more than the amount charged” by the relevant supply authority for the service supplied to or used at the premises.
23. [23]
    The electricity accounts in evidence before the Adjudicator show an electricity charge by reference to usage and a credit for solar export, resulting in a supply charge, which is the amount payable by the account customer.
24. [24]
    The Electricity Act 1994 (Qld) provides that an electricity retailer must reduce the charges payable by a customer for electricity supplied to the customer by the feed-in tariff amount.^[3]
25. [25]
    S 165(3)(b)(ii) of the RTRA Act does not specify if the ‘amount charged’ is the total cost of the service or the total cost, less the solar rebate.
26. [26]
    In my view the amount charged is the amount less the solar rebate because of the obligation imposed by the Electricity Act 1994 (Qld) as to the amount which can be charged.
27. [27]
    That being the case the tenants are entitled to the benefit of the solar rebate and the arrangement purportedly made to require payment of the charge for usage and to only credit $50.00 a quarter from that charge runs counter to s 165(3)(b)(ii) of the RTRA Act.
28. [28]
    I find that the Adjudicator was in error by failing to consider the terms of s 165(3)(b) (ii) of the RTRA Act.
29. [29]
    I do not consider that the grounds of appeal put by the applicant can succeed because they are predicated on the terms of the disclosure agreement providing for a lawful arrangement with respect to treatment of the solar rebate. On my construction of s 165(3)(b) it is not possible for a lessor to pass on only a part of a solar rebate to tenants as intended by Mrs Wardle, because that would result in Mrs Wardle requiring payment for electricity usage at the premises which is more than the amount charged to her by the supplier.
30. [30]
    In any event, I consider that the Adjudicator relied on irrelevant considerations in arriving at the final decision. The Adjudicator appeared to be influenced by what she accepted to be a representation made by the agent as to the solar rebate and relied upon by the De Villiers to their apparent detriment. The Adjudicator’s reasoning does not follow through to demonstrate whether she considers that the representation creates an estoppel and what jurisdiction the Tribunal has to provide a remedy in those circumstances. Nor does the Adjudicator adequately deal with the express written terms of the disclosure agreement which provide for a different treatment of the solar rebate.
31. [31]
    Despite these issues, the decision reached by the Adjudicator is consistent with the requirements of s 165(3)(b)(ii) of the RTRA Act.

Conclusion

32. [32]
    By my interpretation and application of s 165(3)(b)(ii) of the RTRA Act I consider that the issues between the parties can be adequately dealt with as part of the appeal proceeding and that the appropriate order is to confirm the decision of the Adjudicator.
33. [33]
    The appeal is dismissed.