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  4. Mazi v Community Housing (Qld) Pty Ltd - [2023] QCATA 72

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Mazi v Community Housing (Qld) Pty Ltd[2023] QCATA 72

Mazi v Community Housing (Qld) Pty Ltd[2023] QCATA 72

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Mazi v Community Housing (Qld) Pty Ltd [2023] QCATA 72

PARTIES:

GRACE MAZI

(applicant/appellant)

v

COMMUNITY HOUSING (QLD) PTY LTD

(respondent)

APPLICATION NO/S:

APL045-21

ORIGINATING APPLICATION NO/S:

MCDT1351/20 & MCDT1559/20 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

15 June 2023

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

  1. Leave to appeal the decision of 18 November 2020 (MCDT1351/20) and the decision of 22 February 2021 (MCDT1559/20) is refused.
  2. The application is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where applicant applied for leave to appeal – where claims dealt with in two Tribunal hearings – where both decisions appealed – where error made in the first decision – whether reasonable prospect of substantive relief – whether error lead to substantial injustice – leave to appeal refused

National Rental Affordability Scheme Regulations 2020 (Cth) r 11, r 13, r 41, r 42, r 43, r 45

Residential Tenancies and Rooming Accommodation Act 2008 Qld s 277, s 328, s 414A, s 415, s 416, s 417, s 419, s 420, s 426

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28, s 32, s 143, s 146, s 147, Schedule 3

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 83

Astill Legal Group Pty Ltd & Anor v Centrepoint Real Estate Pty Ltd t/as First National Centrepoint & Ors [2022] QCAT 399

Bucknell v Robins [2008] QCA 214

Cachia v Grech [2009] NSWCA 232

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

Pirrone-Cook v Claudia Tiller Holdings Pty Ltd [2011] QCATA 127

Tyler v Queensland Building Services Authority [2010] QDC 40

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

Stone v Grundy [2018] QCATA 68

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

What is this application about?

  1. [1]
    Ms Mazi received a notice to remedy breach,[1] then a notice to leave her tenancy[2] on the grounds that her NRAS tenancy renewal documents were not returned to the lessor. 
  2. [2]
    By an application filed 30 October 2020 (MCDT1351/20) Ms Mazi applied to set aside the notices, and, as she had already vacated the tenancy, sought compensation for the loss of tenancy and other expenses in the amount of $3,759.60.
  3. [3]
    On the hearing of that application on 18 November 2020 (the first hearing), the Tribunal made an order setting aside the notices but declined to make any order for compensation, on the basis that a separate application for compensation was needed (the first decision).
  4. [4]
    On 14 December 2020, Ms Mazi filed a further application for compensation (MCDT1559/20), but at the hearing of that application on 22 February 2021 (the second hearing), a differently constituted Tribunal dismissed a claim under section 426 and under section 420 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld (RTRAA) on the basis that it ought to have been decided by the Tribunal constituted for the first hearing and dismissed a section 420 claim on the basis that dispute resolution requirements had not been met (the second decision).
  5. [5]
    Ms Mazi wants to appeal both decisions, but to do so, leave is first required.[3]  Her applications for leave to appeal and, if successful, appeal, filed separately, have been consolidated pursuant to an earlier order of the Appeal Tribunal.
  6. [6]
    In determining whether to grant leave, the Appeal Tribunal must be satisfied that, relevantly:
    1. (a)
      there is a reasonably arguable case of error in the primary decision;[4]
    2. (b)
      there is a reasonable prospect that the appellant will obtain substantive relief;[5] and
    3. (c)
      leave is needed to correct a substantial injustice caused by the error;[6] or
    4. (d)
      there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[7]

The factual background

  1. [7]
    Ms Mazi was a tenant of residential premises on the Gold Coast.  The respondent was the managing agent of the tenancy.  The tenancy was eligible for reduced rent and other incentives pursuant to the National Rental Affordability Scheme (NRAS).
  2. [8]
    The most recent fixed term agreement, signed 13 May 2019, started on 25 May 2019 and was due to end on 24 May 2020.
  3. [9]
    It was an express term of the tenancy agreement that Ms Mazi was to ensure that she was at all times eligible for the NRAS program. To ensure ongoing eligibility, annual income reviews would be undertaken, with Ms Mazi to provide her preceding year’s tax return, or other evidence of income, and to notify the lessor if her income exceeded the maximum permitted under the scheme. 
  4. [10]
    Ms Mazi says she was asked for and provided proof of income documents in April 2020 as a prelude to her next lease renewal, due in May 2020. In June 2020 she was asked for her then current proof of income, but she did not provide it.
  5. [11]
    On 29 September 2020 Ms Mazi says she was asked again for proof of income by way of a current payslip, but she said that she was “mid pay cycle” and that she would provide a current payslip when the next one was received.
  6. [12]
    On 2 October 2022 and again on 6 October 2020 Ms Mazi was provided with a lease renewal document for the lease term commencing 15 June 2020 to 25 May 2021 and a further request for an updated payslip. The respondent says the lease was delayed in being sent out due to the ongoing absence of an updated payslip from Ms Mazi.
  7. [13]
    The new lease contained a rent increase that Ms Mazi appears to have objected to paying on a backdated basis. The rent increase was from $269.60 to $271.10 (a total of $1.50) per week.
  8. [14]
    Ms Mazi was issued a breach notice on 7 October 2020 for failing to sign the lease documents and given 7 days to remedy the breach.[8] 
  9. [15]
    It was explained to Ms Mazi that lease documents had to be submitted to ensure continuing eligibility for the NRAS scheme.
  10. [16]
    By an email dated 14 October 2020 Ms Mazi asked for a lease that was not backdated as she was unwilling to pay the rent increase (by then a total of approximately $24.00) on a back-dated basis.
  11. [17]
    When Ms Mazi did not return the lease, the notice to leave issued on 16 October 2020 with a handover date of 30 October 2020, with an offer to rescind it if lease documents were returned.
  12. [18]
    Ms Mazi vacated the tenancy on 29 October 2020. She paid rent to that date in the sum of $269.60 rather than at the increased rate of $271.10.

The first decision

  1. [19]
    Ms Mazi filed her Form 2 application for a minor civil dispute – residential tenancy dispute relevantly completed as follows:

 PART B  URGENT OR NON-URGENT

If this an urgent or a non-urgent application under the Residential Tenancies and Rooming Accommodation Act 2008? (refer to Appendix 1 of the attached guide for a list of urgent and non-urgent applications under the Act)

Urgent.

PART C  ORDER AND REASONS DETAILS

Section of the Act:  373/425/427

What order do you want the Tribunal to make?

Set aside notice to leave

Set aside breach notice

Compensation for loss of tenancy and other expenses. 

Total amount of claim: $3,759.60

List of claims:

Transient Accommodation$2,505.60

Storage & Removal $   840.00

Filing     $   414.00 

  1. [20]
    Form 11 and Form 12 notices were attached to the application, together with a copy of a Residential Tenancies Authority (RTA) Form 16 Dispute Resolution request.
  2. [21]
    The Registry noted the “Urgent” nature of the application and listed the application for an urgent hearing.
  3. [22]
    A bundle of additional documents tendered to the Tribunal for the hearing that relevantly included:
    1. (a)
      Special Conditions to the tenancy agreement dated 13 May 2019;
    2. (b)
      Chronology of events;
    3. (c)
      Emails exchanged between the applicant and the respondent between 7 and 9 October 2020 and further emails exchanged between 16 and 22 October 2020; and
    4. (d)
      RTA emails pertaining to the Bond claims.
  4. [23]
    According to the hearing transcript, discussions were had within the hearing regarding Ms Mazi’s claim as follows:
    1. (a)
      The Tribunal expressed concern about the utility of setting aside notices where the compensation claim could not be heard.  Ms Mazi said however that she wanted to “set the tone” for the compensation claim.
    2. (b)
      Ms Bayfield, for the respondent Community Housing (Qld) Pty Ltd, gave evidence that its requests for the payslip came from or via NRAS, they were not terms insisted upon by the property managers.
    3. (c)
      Ms Mazi gave evidence that the property manager was “not forthcoming about the impact of the new income assessment” and when asked by the Tribunal whether the concern was that rent would increase Ms Mazi replied “the impact of the new assessment might impact my eligibility”.
  5. [24]
    In giving its decision, the Tribunal said:
    1. (a)
      It had given a detailed consideration prior to proceeding as to whether the matter could proceed given the “urgent” nature of the application about notices.
    2. (b)
      Given conciliation had not yet taken place (as the parties had incorrectly informed the tribunal), the tribunal said correctly that no money matters can be heard or dealt with or any orders made in that regard.
    3. (c)
      Given the serious outcome of failing to remedy a breach which could give rise potentially to homelessness, it was not satisfied to the requisite standard that the respondent had established the breach that gave rise to the notice.
    4. (d)
      The applicant was not entitled to monetary relief until section 416 of the RTRAA (conciliation processes) had been satisfied.  

The second decision

  1. [25]
    Ms Mazi filed her Form 2 application for a minor civil dispute – residential tenancy dispute completed as follows:

PART B  URGENT OR NON-URGENT

If this an urgent or a non-urgent application under the Residential Tenancies and Rooming Accommodation Act 2008? (refer to Appendix 1 of the attached guide for a list of urgent and non-urgent applications under the Act)

Non-urgent.

PART C  ORDER AND REASONS DETAILS

Section of the Act:  426; 419

What order do you want the Tribunal to make?

Compensation

Issue of rental ledger record

Total amount of claim: $5,221.85

List of claims:

Transient Accommodation $3,225.60

Storage & Removal  $   996.25

Filing     $   125.00 

Other- INCVE   $1,000.00

  1. [26]
    The decision of the Tribunal was “Application dismissed”.
  2. [27]
    The reasons given for the decision included:
    1. (a)
      With respect to the section 426 claim, that if a decision is made to set aside notices, the Tribunal who made that decision, needed to be the Tribunal who made the decision on compensation. The matters could not be decided separately.
    2. (b)
      With respect to the section 420 claim, the Tribunal did not have power to grant compensation because, firstly there had been no breach of the agreement by giving notices even if they were subsequently set aside and additionally because there had been no dispute resolution about the bond and rent issue which was a separate dispute.

Application for leave to appeal and appeal

  1. [28]
    Ms Mazi appears to seek to expand her claim against the lessor to seek additional compensation for “loss of enjoyment” under section 183 of the RTRAA, calculated at $3,344.97. 
  2. [29]
    On appeal the Appeal Tribunal’s powers are:
    1. (a)
      in deciding an appeal against a decision on a question of law only, to:
      1. confirm or amend the decision; or
      2. set aside the decision and substitute its own decision; or
      3. set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration—
        1. with or without the hearing of additional evidence as directed by the appeal tribunal; and
        2. with the other directions the appeal tribunal considers appropriate; or
      4. make any other order it considers appropriate. [9]
    2. (b)
      in deciding appeal on question of fact or mixed law and fact, which must be by way of rehearing, to:
      1. confirm or amend the decision; or
      2. set aside the decision and substitute its own decision; or
      3. set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration.[10]
  3. [30]
    The additional relief sought by Ms Mazi cannot be dealt with in the application for leave to appeal and appeal. 

The legislative framework

  1. [31]
    At the time the notices were given, and the matter was before the Tribunal (on both occasions) the relevant version of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) was the reprint effective from 1 September 2019 to 20 October 2021. All references herein to the RTRAA are to that reprint unless otherwise specified. The distinction is important due to subsequent residential tenancy reforms that amended the RTRAA significantly.  

Notices issued with grounds

  1. [32]
    Section 426 pertains to disputes about a notice to remedy breach or a notice to leave premises (other than notices to leave without grounds).  It permits a tenant to dispute the grounds of a notice, and, if the tribunal is satisfied the lessor was not entitled to give the notice on the ground stated, it may make orders as follows:
    1. (a)
      If the application is decided while the tenancy is still current, the tribunal may make any order it considers appropriate.
    2. (b)
      If the application is decided after the tenancy has ended because of the lessor’s action, the tribunal may make an order requiring the lessor to pay the tenant compensation for loss or expense incurred by the tenant for having to leave the premises.
  2. [33]
    Sections 425 and 427 pertain to notices given to/by rooming accommodation providers by/to their residents. They have no relevance to the applicant’s situation.

Notices to leave without grounds

  1. [34]
    Section 373 permits a rooming resident to apply to the tribunal to set aside a notice to leave without grounds if it is retaliatory, provided the application is made within 2 weeks after the notice is given.  It is not relevant to the applicant’s situation. 
  2. [35]
    Section 291 permits a tenant to apply to the tribunal to set aside a notice to leave given without grounds if it is retaliatory, provided the application is made within 4 weeks after the notice is given (per section 292). Again, it has no relevance to the application.

Urgent vs non-urgent applications

  1. [36]
    Sections 414A to 417 provide for how tenancy applications are made, including how “urgent’ and “non urgent” applications are dealt with.
  2. [37]
    An “urgent” application is defined in section 415 but to include applications to set aside notices to leave if retaliatory, but not applications under sections 419 or 426.

Dispute Resolution

  1. [38]
    The RTA dispute resolution process must have been completed (not merely requested) before a non-urgent application is made to the Tribunal, but it is not required for urgent applications (section 416).

When a tenancy agreement ends

  1. [39]
    Section 277 provides that a tenancy agreement only ends in a way mentioned in that section, including, relevantly, if
    1. (a)
      the lessor gives a notice to leave the premises to the tenant; and
    2. (b)
      the tenant hands over vacant possession of the premises on or after the handover day.

Application for leave to rely on fresh evidence

  1. [40]
    Fresh evidence tendered in the application for leave to appeal or appeal that was not put before the Tribunal in either hearing included:
    1. (a)
      Notice of Unresolved Dispute issued by the RTA dated 28 October 2020 pertaining to the disputed notices.
    2. (b)
      Tenancy Agreement dated 13 May 2019.
    3. (c)
      Accommodation invoice dated 2 November 2020.
    4. (d)
      Tenancy ledger to 30 October 2020.
    5. (e)
      Receipts for filling fees and obtaining transcripts dated 14 December 2020, 31 March 2021, 30 April 2021 and 15 July 2021; and
    6. (f)
      Receipt for obtaining a company search of the respondent dated 4 August 2022.
  2. [41]
    Items numbered (e) and (f) above post-date the hearings and essentially pertain to appeal expenses.
  3. [42]
    Items (a)-(d) however, pre-date the hearings and it has not been explained why they were not tendered at the time. 
  4. [43]
    The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce fresh evidence must satisfy three tests:[11]
    1. (a)
      Could the parties have obtained the evidence with reasonable diligence for use at the hearing?
    2. (b)
      If allowed, would the evidence probably have an important impact on the result of the case?
    3. (c)
      Is the evidence credible?
  5. [44]
    The Appeal Tribunal is satisfied that the evidence would probably have an important result on the case. Certainly, the Notice of Unresolved Dispute dated 28 October 2020 is likely to have changed the outcome of the first hearing had the applicant known to tender it. The Tribunal knew to ask for it but both parties replied that dispute resolution procedures had not been completed for the breach notice issue when in fact they had completed it.   As for the tenancy agreement, a complete copy should always be filed in any residential tenancy application.
  6. [45]
    The fresh evidence is germane to any findings and orders in the dispute and is admitted on that basis.

Should leave to appeal be granted?

A reasonably arguable case of error in the primary decision – the first decision

  1. [46]
    Ms Mazi’s tenancy ended on 29 October 2020 when she vacated the property and returned possession of it to the lessor. She had competed the necessary dispute resolution procedure to bring a non-urgent section 426 application for compensation but:
    1. (a)
      cited several incorrect sections of the RTRAA as the bases upon which her application was grounded, and did not cite section 426 at all;
    2. (b)
      stated that her application was urgent when it was not;
    3. (c)
      did not file the relevant Notice of Unresolved Dispute (even though she had obtained one); and 
    4. (d)
      told the Tribunal in the hearing that dispute resolution procedures had not been completed (when in fact they had).
  2. [47]
    The Tribunal did not have power to set aside notices in those circumstances and fell into error in making the first decision to do so.  This is an error of law.
  3. [48]
    The Tribunal did not fall into error in refusing to consider the compensation application on the basis that it was a non-urgent application, but ought to have dismissed the application for want of jurisdiction on the evidence before it (namely the failure to complete RTA dispute resolution processes).

A reasonably arguable case of error in the primary decision – the second decision

  1. [49]
    With respect to the section 426 claim, the Tribunal in the second hearing found the application under section 426 had been partially determined by the Tribunal by the making of a decision to set aside the notices, although the application had not in fact been determined by the Tribunal under section 426 at all or, if it had, it was done in error. In any event, given that earlier orders were made about the notices, the Tribunal was correct in deciding that it could not deal with the compensation claim separately – it needed to be decided by the Tribunal as constituted for the application pertaining to the notices.[12] The Tribunal did not fall into error in making the second decision to dismiss the section 426 claim on that basis.
  2. [50]
    With respect to the section 420 compensation claim, the Tribunal dismissed it on the bases that:
    1. (a)
      the issuing of the notices did not amount to a breach of the agreement; and
    2. (b)
      the parties had not engaged in dispute resolution on that particular issue. 
  3. [51]
    Although the parties had, again, in fact engaged in dispute resolution on the bond/rent dispute issue, they did not tender a Notice of Unresolved Dispute (for the bond claim and the rent dispute) and made submissions to the Tribunal that they had not mediated that issue when, as a matter of fact, they had.  On the evidence before the Tribunal, therefore, it was right to dismiss the application under section 420 for want of jurisdiction.
  4. [52]
    There is no case of error in the second decision.

A reasonable prospect of obtaining substantive relief

  1. [53]
    At first instance, the Tribunal did not consider that the lessor had tendered sufficient evidence to establish the breach set out in the Form 11 Notice to Remedy Breach to justify a termination order.  With respect to the Tribunal, that is not the test.
  2. [54]
    Section 426 requires the applicant to establish that the lessor was not entitled to give the notice on the ground stated: the onus is not upon the respondent to establish the ground: this would be a matter for any subsequent termination application brought by the lessor.   
  3. [55]
    Further, if the tribunal decides the lessor was not entitled to give the notice the subject of the application, it may, but does not have to make a compensation order in an amount it considers appropriate as compensation for loss or expense incurred by the tenant for having to leave the premises. It is a matter for the applicant to establish its loss and that it was caused by the lessor’s action in wrongfully giving notices.
  4. [56]
    Therefore, Ms Mazi’s prospects of obtaining substantive relief depend upon her satisfying the Tribunal:
    1. (a)
      That the lessor was not entitled to give the notices it did; and
    2. (b)
      That she should be compensated for loss and expense she incurred for having to leave the premises as a consequence of the lessor’s action.
  5. [57]
    The notices concerned a breach of the NRAS eligibility requirements. According to the National Rental Affordability Scheme Regulations 2020 (Cth) (NRAS Regs):

11  Eligible tenants

No incentive is available for any period during which the dwelling is rented to a tenant who is not an eligible tenant.

Note:          For eligible tenant, see section 41.

41  Eligible tenants

  1. (1)
    In this instrument:
  1. (a)
    a reference to the tenants of a rental dwelling is a reference to the particular person or persons who are tenants of the dwelling; and
  1. (b)
    the day on which those tenants become tenants of the dwelling is their start day; and
  1. (c)
    the 12‑month period beginning on their start day or an anniversary of their start day is an eligibility year for those tenants; …
  1. (2)
    The tenants of a rental dwelling covered by an allocation become eligible tenants on their start day if their combined gross income for the 12 months ending on the day before the start day does not exceed the income limit for their household as set out in this section.

Note:          For working out the income limit, see subsections (5) to (8).

  1. (3)
    Eligible tenants cease to be eligible tenants if:
  1. (a)
    they cease to be tenants of a rental dwelling covered by an allocation; or
  1. (b)
    their combined gross income exceeds the income limit for their household by 25% or more in 2 consecutive eligibility years; or
  1. (c)
    a person (other than an eligible tenant) joins their household and the person’s income for the previous 12 months exceeds the income limit for a first adult for the year in which the person joins the household.

Note: See subparagraph (5)(a)(i) for the income limit for a first adult for a year beginning in the NRAS year beginning on 1 May 2019.

…

  1. (5)
    The income limit for a household for a 12‑month period beginning in the NRAS year beginning on 1 May 2019 is:
  1. (a)
    if the household does not include a sole parent:
  1. (i)
    $51,398 for the first adult; and
  1. (ii)
    $19,663 for each additional adult; and
  1. (iii)
    $17,050 for each child; and
  1. (b)
    if the household includes a sole parent:
  1. (i)
    $54,060 for the first sole parent; and
  1. (ii)
    $19,663 for each additional adult; and
  1. (iii)
    $17,050 for each child.

…

13  Documents and information

Statements of compliance

  1. (1)
    No incentive is available for a period unless the approved participant has given the Secretary a statement of compliance for the dwelling for the period.

Note:  For statements of compliance, see Part 5.

Outstanding documents and information

  1. (2)
    No incentive is available for any period during which a document or information relating to the allocation, and required for the purposes of the Scheme, is outstanding.
  1. (3)
    A document or information is outstanding if:
  1. (a)
    the period for giving the document or information has ended; and
  1. (b)
    the document or information has not been given to the Secretary in the approved form (if any).

…

Examples of documents and information relating to the allocation

  1. (7)
    Documents and information relating to the allocation include the following:
  1. (a)
    a statement of compliance;

…

  1. (d)
    a tenant demographic assessment or tenant consent form;
  1. (e)
    a lease agreement;

…

42  Statement of compliance required for each NRAS year

  1. (1)
    The approved participant for a rental dwelling covered by an allocation must give the Secretary a statement of compliance for the dwelling for each NRAS year.
  1. (2)
    A statement of compliance must:
  1. (a)
    be in the approved form; and
  1. (b)
    include the information required by the form for the purposes of the Scheme.

Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.

  1. (3)
    The statement of compliance must be given to the Secretary before:
  1. (a)
    30 June after the end of the NRAS year; or
  1. (b)
    a later date approved by the Secretary, which must not be later than 30 September after the end of the NRAS year.

Note:  No incentive is available for any period during which the approved participant fails to comply with this subsection (see subsections 13(2) to (4)).

  1. (4)
    The Secretary may approve a later date:
  1. (a)
    on the Secretary’s own initiative, if the Secretary considers it appropriate; or
  1. (b)
    on the application of the approved participant, if:
  1. (i)
    the application is in the approved form; and
  1. (ii)
    the application is made before 30 September after the end of the NRAS year; and
  1. (ii)
    the Secretary is satisfied that the approved participant has a reasonable excuse for not being able to lodge the statement by 30 June.

…

43  Contents of statement of compliance

  1. (1)
    The statement of compliance must include the following for the NRAS year:
  1. (a)
    a statement that at all times during the year, any tenant or tenants were eligible tenants, or details of any way in which this requirement was not met;

…

45  Lease agreement

  1. (1)
    The approved participant for a rental dwelling covered by an allocation must give the Secretary a copy of each current lease agreement for the dwelling.
  1. (2)
    The copy must be given to the Secretary before the next statement of compliance for the dwelling is given to the Secretary.

Note: No incentive is available for any period during which the approved participant fails to comply with this subsection (see subsections 13(2) to (4)).

  1. [58]
    On the evidence before the Appeal Tribunal, and on Ms Mazi’s own evidence:
    1. (a)
      It was a special term of Ms Mazi’s tenancy that she “ensure that at all times [she is] eligible for the NRAS program”. This was her overriding obligation.  To track eligibility, the lessor undertook annual income reviews, which the tenant must participate in.  This did not limit the tenant’s obligation to ensure eligibility “at all times”.  In any event, the “annual” nature of the review could only logically apply to NRAS years, not calendar or financial years given how eligibility was determined.
    2. (b)
      Pursuant to the NRAS Regs, NRAS eligibility required, among other things:
      1. Ms Mazi to be income-eligible during the NRAS year; and
      2. that a signed lease be in place for the tenancy. 
    3. (c)
      Ms Mazi’s tenancy expired on 24 May 2020. Presumably therefore, her NRAS “eligibility year” commenced on 25 May in each year. The statement of compliance for her tenancy from 25 May 2020 was due to be lodged by 30 June 2020. 
    4. (d)
      The provision of a payslip for April 2020 did not meet the requirements for income eligibility for Ms Mazi’s NRAS eligibility year commencing 25 May 2020.  Failing to have a lease in place prior to 30 June 2020 also rendered the tenancy ineligible for the NRAS scheme.
    5. (e)
      On 6 October 2020 Ms Mazi was provided with a lease for signing.  It was backdated to prior to 30 June 2020, presumably to ensure ongoing compliance with and eligibility for the NRAS Scheme. It is not clear why it was not backdated to 25 May 2020, however, this may have something to do with required notice periods for rent increases. 
    6. (f)
      In any event, Ms Mazi did not sign the lease and objected to signing the lease. Her objection seems to have been to paying backdated rent, as expressed in her email to the lessor of 14 October 2020 and, as she stated in her first hearing, her concern that it might impact her eligibility.
    7. (g)
      Ms Mazi did not provide a current payslip for the NRAS year commencing 25 May 2020 or at any time before she vacated the tenancy on 29 October 2020. 
    8. (h)
      In summary, Ms Mazi did not take steps required of her to ensure eligibility with the NRAS scheme. This was a breach of her lease.
    9. (i)
      The Form 11 Notice to Remedy Breach issued on 7 October 2020 met the requirements of sections 325 and 328 of the RTRAA. It stipulated that the breach to be remedied was “As per NRAS Lease Terms and Conditions and Annexure A Item 12 non return of all NRAS lease documents”. Under the NRAS Regs, NRAS lease documents included documents other than the lease agreement pertaining to eligibility.
    10. (j)
      The Form 12 Notice to Leave issued on 16 October 2020 met the requirements of sections 326 and 329 of the RTRAA.  The grounds of the Notice to Leave were “Failure to remedy breach as per NRAS Lease Terms and Conditions and Annexure A Item 12 non return of all NRAS lease documents”.   
  2. [59]
    If leave to appeal was granted and the appeal allowed, whether the Appeal Tribunal reheard the claim itself or remitted it for rehearing before a differently constituted tribunal, the evidence does not satisfy me that Ms Mazi has a reasonable prospect of establishing that the lessor was not entitled to give the notices it gave on such a rehearing.
  3. [60]
    Even if the notices were found to have issued without proper grounds, the making of a compensation order is a discretionary remedy, and an award of compensation does not follow just because there is a finding that notices were issued incorrectly. The Appeal Tribunal is not satisfied that there is a reasonable prospect of such an order being made on a rehearing because, on the evidence Ms Mazi brought to the Tribunal:
    1. (a)
      There is no evidence to support a finding that the accommodation costs incurred were reasonable as Ms Mazi has not produced evidence of what other options were available to Ms Mazi and at what cost or of any effort made by Ms Mazi to mitigate her loss.
    2. (b)
      Ms Mazi has not deducted from her claim what her living expenses would otherwise have been had her tenancy not ended, given the usual principle of compensation in residential tenancy cases is that the complainant is to be put back as far (as money can do it) in the same position as if the loss suffered had not occurred.[13] This would require a consideration of whether her accommodation costs included cleaning, linen, power, water, internet and any other expenses that Ms Mazi would ordinarily have incurred, and the reasonable deduction of such expenses from her claim, as well as the rent she would otherwise have had to pay had her tenancy continued.
    3. (c)
      Although somewhat canvassed in the first hearing, Ms Mazi did not explain her decision to move from the tenancy rather than produce a payslip and sign the new lease. She objected to the backdated rent increase, but at $1.50 per week over, say, 16 weeks (June, July, August, September) the increase was nominal at $24.00.  Over the entire lease year the rent increase amounted to $78.00. Incurring the costs to vacate and paying $548.03 per week ($78.28 per night) in short term apartment accommodation seems a disproportionate choice to make against an obligation to a back-payment of $24.00 to secure the ongoing tenancy and avoid the loss entirely.  Coupled with her evidence that Ms Mazi was concerned that providing the payslip might impact her eligibility, this creates a real challenge in Ms Mazi establishing her obligation to mitigate. 
  4. [61]
    As to the moving and storage costs, adopting the reasoning in Astill Legal Group Pty Ltd & Anor v Centrepoint Real Estate Pty Ltd t/as First National Centrepoint & Ors [2022] QCAT 399 at [117], a lessor will not ordinarily be liable for moving costs because they are not incurred by reason of the ending of the tenancy due to the lessor’s action, but, rather, they are incurred prematurely. If a finding is made against the lessor with respect to the notices, compensation would be limited to interest on the moving expenses brought forward.  Given Ms Mazi was non-compliant with requirements to maintain her NRAS eligibility for the tenancy, she could have been breached again, and her tenancy terminated on application to the tribunal following a failure to leave.  At most, therefore, the costs were incurred prematurely by weeks, not months.
  5. [62]
    With respect to the application and transcript costs, these are not recoverable in MCD applications, other than the filing fee.[14] As the second application was dismissed without error, the costs of that application and claimed in that application are not recoverable, nor are her transcript and related costs.
  6. [63]
    This factor does not favour granting leave to appeal.

Substantial injustice on account of the error – the first decision

  1. [64]
    In Pirrone-Cook v Claudia Tiller Holdings Pty Ltd [2011] QCATA 127 the Appeal Tribunal found that an inability to pay the amount awarded at first instance was not “substantial injustice”.
  2. [65]
    In Tyler v Queensland Building Services Authority[15] the appellant argued that, if leave was not given, he would be required to complete work for which he had not been paid and, again, this was not considered as amounting to “substantial injustice”.
  3. [66]
    In Bucknell v Robins[16] financial disadvantage, in the absence of hardship did not amount to “substantial injustice”.
  4. [67]
    With respect to the error in the first decision, Ms Mazi was not entitled to the orders she obtained that set aside the notice to remedy breach and the notice to leave because the Tribunal had no power under section 426 to make that order in the first decision.  She was entitled to have her compensation claim with respect to the notices heard because she had completed dispute resolution on that issue, but she misinformed the Tribunal as to that fact and her application ought therefore to have been dismissed for want of jurisdiction.
  5. [68]
    Ms Mazi bears a measure of responsibility for the dismissal of her compensation claim at first instance:
    1. (a)
      Her scattergun approach of selecting multiple sections of the RTRAA that might apply to the first application, none of which were correct, and her incorrect selection of an “urgent” matter type led to the Registry listing the matter as an urgent matter and to the Tribunal considering a remedy that was not in fact available to the applicant.
    2. (b)
      She misinformed the Tribunal in the first hearing and did not correct the respondent’s misinformation to the Tribunal in the second hearing on the jurisdictional question of dispute resolution.
    3. (c)
      She did not produce relevant evidence to the Tribunal at the time of her applications, even when it was available to her.
  6. [69]
    To her credit, in her appeal submissions Ms Mazi conceded her contribution to the ensuing confusion and expressed her appreciation to the Tribunal for efforts made to assist her as a layperson.
  7. [70]
    Ms Mazi submits that:
    1. (a)
      She acted in good faith and to the best of her ability as a lay person in bringing her claim.
    2. (b)
      Her claim has not properly been heard “due to a complicated combination of technical and procedural reasons and errors”.
    3. (c)
      Failing to hear her compensation claim on its merits amounts to a failure to provide her with natural justice and procedural fairness as required under section 28(3) of the QCAT Act and to ensure a proper understanding as per section 29(1) of the QCAT Act.
  8. [71]
    With respect to the submissions regarding the QCAT Act:
    1. (a)
      Section 28(3) provides that in conducting a proceeding, the tribunal:
      1. must observe the rules of natural justice; and
      2. is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and
      3. may inform itself in any way it considers appropriate; and
      4. must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and
      5. must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.
    2. (b)
      Section 29(1) provides that the tribunal must take all reasonable steps to ensure each party to a proceeding understands:
      1. the practices and procedures of the tribunal; and
      2. the nature of assertions made in the proceeding and the legal implications of the assertions; and
      3. any decision of the tribunal relating to the proceeding.
  9. [72]
    These obligations do not extend to giving legal advice or to perfecting an imperfect claim brought by an applicant. 
  10. [73]
    The error made in the first hearing was to make orders setting aside notices where the Tribunal had no power to do so. The Tribunal did not err in refusing to hear the compensation claim.  Despite the failure to file a Notice of Unresolved dispute, which many parties omit, the Tribunal attempted in the hearing to ascertain whether the jurisdictional requirements for dispute resolution had been met and the parties informed the Tribunal that they had not.  Ms Mazi was afforded natural justice in that regard: she was heard on the issue of jurisdiction and led the Tribunal astray with her own evidence.  
  11. [74]
    Having regard to my finding that Ms Mazi does not have a reasonable prospect of obtaining the substantive relief she seeks on a rehearing of the matter, it is difficult to see the substantial injustice to her of refusing leave to appeal to correct the Tribunal’s error in setting aside the notices.

A question of general importance upon which further argument, and a decision would be to the public advantage?

  1. [75]
    The section 426 claim is not one of general importance wherein a decision would be to the public advantage because:
    1. (a)
      the issues the subject of the application are personal and particular to the applicant; and
    2. (b)
      because of tenancy reforms, notices to remedy breach can now be set aside, if retaliatory, in an urgent application under section 246 of the current RTRAA. Section 426 remains as a non-urgent application but has been expanded upon in the current RTRAA.
  2. [76]
    This factor does not favour the grant of leave to appeal.

Conclusion

  1. [77]
    With respect to the first decision, the Tribunal fell into an error of law in setting aside notices without power to do so, however, the Appeal Tribunal is not satisfied that this led to a substantial injustice to the applicant; nor is it satisfied that the applicant has reasonable prospects of substantive relief, or that the question is one of general importance.  For those reasons, leave to appeal is refused.
  2. [78]
    With respect to the second decision, the Appeal Tribunal finds no error and leave to appeal is refused on that basis.
  3. [79]
    The application for leave to appeal and appeal is dismissed.

Footnotes

[1] Form 11 dated 7 October 2020, requiring the breach to be remedied (documents submitted) by 14 October 2020.

[2] Form 12 dated 16 October 2020, requiring the tenancy to be vacated by 30 October 2020.

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 143(3).

[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[5] Cachia v Grech [2009] NSWCA 232, 2.

[6] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[7] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.

[8] RTRAA, s 328.

[9] QCAT Act, s 146.

[10] QCAT Act, s 147.

[11] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408.

[12] Stone v Grundy [2018] QCATA 68.

[13] Johnson v Perez (1988) 166 CLR 351.

[14] QCAT Act, s 102(2) and Rules 83 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld).

[15] [2010] QDC 40.

[16] [2008] QCA 214.

Close

Editorial Notes

  • Published Case Name:

    Mazi v Community Housing (Qld) Pty Ltd

  • Shortened Case Name:

    Mazi v Community Housing (Qld) Pty Ltd

  • MNC:

    [2023] QCATA 72

  • Court:

    QCATA

  • Judge(s):

    Member Lember

  • Date:

    15 Jun 2023

Litigation History

EventCitation or FileDateNotes
Primary JudgmentQCAT1351/20 (No citation)18 Nov 2020Application to QCAT to set aside certain notices, and for compensation, in respect of residential tenancy; notices set aside; no order as to application for compensation.
Primary JudgmentQCAT1559/20 (No citation)22 Feb 2021Further application for compensation dismissed.
Primary Judgment[2023] QCATA 7215 Jun 2023Application for leave to appeal decisions of 18 Nov 2020 and 22 Feb 2021 refused: Member Lember.
Appeal Determined (QCA)[2023] QCA 22717 Nov 2023Application for leave to appeal (pursuant to Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 150) refused: Bowskill CJ (Dalton and Boddice JJA agreeing).
Application for Special Leave (HCA)File Number: B6/202424 Jan 2024Application for special leave to appeal filed.
Special Leave Refused (HCA)[2024] HCASL 7811 Apr 2024Special leave to appeal refused: Edelman and Jagot JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited

Case NameFull CitationFrequency
Astill Legal Group Pty Ltd v Centrepoint Real Estate Pty Ltd t/as First National Centrepoint [2022] QCAT 399
2 citations
Jump To
Cite 1 - [2022] QCAT 399
Cite 2 - [2022] QCAT 399
Bucknell v Robins [2008] QCA 214
2 citations
Jump To
Cite 1 - [2008] QCA 214
Cite 2 - [2008] QCA 214
Cachia v Grech [2009] NSW CA 232
2 citations
Jump To
Cite 1 - [2009] NSW CA 232
Cite 2 - [2009] NSW CA 232
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
2 citations
Jump To
Cite 1 - [1984] 1 Qd R 404
Cite 2 - [1984] 1 Qd R 404
Glenwood Properties Pty Ltd v Delmoss Pty Ltd[1986] 2 Qd R 388; [1986] QSC 221
2 citations
Jump To
Cite 1 - [1986] 2 Qd R 388
Cite 2 - [1986] 2 Qd R 388
Johnson v Perez (1988) 166 CLR 351
1 citation
Jump To
Cite 1 - (1988) 166 CLR 351
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd[1989] 2 Qd R 577; [1989] QSCFC 53
2 citations
Jump To
Cite 1 - [1989] 2 Qd R 577
Cite 2 - [1989] 2 Qd R 577
Pirrone-Cook v Claudia Tiller Holdings Pty Ltd [2011] QCATA 127
2 citations
Jump To
Cite 1 - [2011] QCATA 127
Cite 2 - [2011] QCATA 127
QUYD Pty Ltd v Marvass Pty Ltd[2009] 1 Qd R 41; [2008] QCA 257
3 citations
Jump To
Cite 1 - [2009] 1 Qd R 41
Cite 2 - [2009] 1 Qd R 41
Cite 3 - [2009] 1 Qd R 41
Stone v Grundy [2018] QCATA 68
2 citations
Jump To
Cite 1 - [2018] QCATA 68
Cite 2 - [2018] QCATA 68
Tyler v Queensland Building Services Authority [2010] QDC 40
2 citations
Jump To
Cite 1 - [2010] QDC 40
Cite 2 - [2010] QDC 40

Cases Citing

Case NameFull CitationFrequency
Craven v Kataria [2024] QCATA 1272 citations
1

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