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Ray White Townsville v Catalyst Child and Family Services[2023] QCATA 79

Ray White Townsville v Catalyst Child and Family Services[2023] QCATA 79

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Ray White Townsville v Catalyst Child and Family Services [2023] QCATA 79

PARTIES:

ray white townsville

(applicant/appellant)

v

Catalyst child and family services

(respondent)

APPLICATION NO/S:

APL176-20

ORIGINATING

APPLICATION NO/S:

MCDT528-19

MATTER TYPE:

Appeals

DELIVERED ON:

13 July 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Dick SC

ORDERS:

  1. Leave to appeal is granted limited to the ground that the learned magistrate erred factually by finding that the originating application made to the Tribunal below was made outside of the six-month period provided by statute.
  2. The appeal is allowed.
  3. The decision of the learned magistrate is set aside.
  4. The matter is returned to the Tribunal sitting at Townsville for redetermination including the hearing further evidence.
  5. Pursuant to s 146(c)(ii) of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal hearing the redetermination be constituted by a member other than the Member who heard the proceedings appealed from.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – LEAVE TO APPEAL – INTERFERENCE WITH FINDINGS OF FACT – LEGAL ERROR – where the applicant/appellant seeks to appeal the decision of a magistrate sitting as a member of the Tribunal – where the applicant/appellant requires leave to appeal – where the magistrate found the application below was statute barred – where the applicant contends that the magistrate erred by doing so and failing to address the substance of the application – whether leave to appeal should be granted – whether the appeal should be allowed

ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – TENANCY MATTERS – LANDLORD AND TENANT – AGREEMENTS FOR LEASE – BREACH – where the applicant/appellant alleges that the respondent breached a residential tenancy agreement by failing to leave a premises in the same condition that they were in at the start of the tenancy – where the magistrate found that the application was made out of time – whether the magistrate erred in finding that the application was made out of time

Queensland Civil and Administrative Tribunal Act 2009 ss 4, 61, 62, 142, 142, 146, schedule 3. 

Residential Tenancies and Rooming Accommodation Act ss 417, 419, schedule 2.

Alderton v Wide Bay Constructions Pty Ltd [2017] QCATA 147

Beale v Holmes [2023] QCATA 47

King & Ors v Australian Securities and Investments Commission [2018] QCA 352

Pickering v McArthur [2005] QCA 294

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. [1]
    By an ‘Application for leave to appeal or appeal’ lodged on 25 June 2020 (the Application), Ray White Townsville (the applicant) seeks to appeal the decision of a magistrate sitting as a member hearing a ‘tenancy matter’ which is a ‘minor civil dispute’.[1] The applicant complains that the magistrate failed to address the substance of the application and instead dismissed the application after improperly finding that the application “statute barred”. Pursuant to s 142(3)(a)(ii) of the QCAT Act, the applicant requires leave to appeal the decision of the learned magistrate.
  2. [2]
    This proceeding was referred to me in June of 2023 for determination on the papers. Since then, I have endeavoured to determine the matter as quickly as possible.  I regret the delay in finalising this appeal which I suspect is attributable to the limited resources available to the Tribunal.

The proceedings below

  1. [3]
    In the proceedings below, the applicant alleged that the respondent breached a residential tenancy agreement by failing to leave the premises, as far as possible, in the same condition they were in at the start of the tenancy. The applicant claimed damages in the amount of $24,491.93 “plus costs”. The damages were particularised as follows (less $1,640.00 received from withholding of the rental bond):
  1. $16,079.83 for building repairs;
  2. $235.00 for irrigation repairs;
  3. $2,101.00 for cleaning and blinds;
  4. $1,282.00 for carpet cleaning;
  5. $170.50 for a locksmith;
  6. $66.00 to replace an air-conditioner cover;
  7. $1,277.50 for steel-line garage doors;
  8. $4,920.00 for loss of rent; and
  9. An amount to be determined in “court costs”.
  1. [4]
    By the agreement of both parties, the application below was heard by the magistrate on the papers. Oral reasons were handed down on 27 May 2020. The applicant, by its representative, Ms Culleton, was present by telephone when the reasons were handed down. There was no appearance for the respondent. I have read the transcript of the reasons.
  2. [5]
    In her Honour’s reasons, the learned magistrate made the following observations:
  1. On 2 November 2017, the parties entered into a residential tenancy agreement for a fixed term from 8 December 2017 to 7 December 2018 in relation to premises at 60 Estuary Parade with a weekly rent of $410 and a bond of $1,640.
  2. On 19 September 2018, the parties entered into another residential tenancy agreement for the same property for a fixed term from 8 December 2018 to 7 December 2019 for the same weekly amount.
  3. On 20 March 2019, the applicant inspected the premises.
  4. On 25 March 2019, the applicant served the respondent with two notices to remedy breach, with a remedy dated 31 March 2019.
  5. On 29 May 2019, the applicant served the respondent with a notice to leave on the ground of failing to remedy the breaches. The notice to leave set out a handover date of 8 July 2019.
  6. The property was vacated on or about 8 July 2019.
  1. [6]
    The magistrate also made the following conclusions and findings:
  1. The issue of damages and compensation in relation to the residence at 60 Estuary Parade relied on by the applicant first came to the attention of the applicant on the 20th of March 2019, the 1st of April 2019, and the 8th of April 2019, following routine inspections.
  2. Applying sections 417 and 419 of the Residential Tenancies and Rooming Accommodation Act 2008, there is a six-month limitation period that begins from the date the lessor first becomes aware of a breach. The Tribunal only has jurisdiction to hear an application arising from a breach of a residential tenancy agreement if, within the six-month period, an application is made in the Tribunal, or a request is made for dispute resolution.
  3. There was in the material before her Honour, a dispute resolution request completed 1 October 2019, but there was no evidence that the request was lodged with the authority.
  4. In this case, the earliest in time date of the filing of the application in the Tribunal or a request for dispute resolution is the date of the filing of the application in the Tribunal on 9 October 2019.
  5. Applying the six-month rule, the application had to be filed by midnight, the 7th of October 2019.
  6. Given that the application was filed on the 9th of October 2019, the application was statute-barred.
  1. [7]
    At the conclusion of the magistrate’s findings, she said again:

I find there is insufficient evidence to be satisfied that additional damage was caused by the respondent within the six-month period prior to the filing of the application of the referral to dispute resolution.

  1. [8]
    Ms Culleton on behalf of the applicant at that time raised with the magistrate that:

It was submitted to the RTA on the 1st of October.

  1. [9]
    The magistrate replied:

Well, you didn’t supply that in your material.

  1. [10]
    Ms Culleton:

I didn’t realise I had to provide proof. I thought that you would have access to that and the date on the form does show the 1st of October.

  1. [11]
    Later in the reply, the magistrate said:

I mean, it’s a little late now to file that material. And the court file clearly shows it was referred on the date that I mentioned.

Fresh evidence

  1. [12]
    The application for leave to appeal before this Tribunal was accompanied by fresh material namely a print out of an email dated 1 October 2019 purporting to be from the applicant to the Residential Tenancies Authority attaching a dispute resolution request. I infer that to be the material referred to in the exchange between Ms Culleton and the learned magistrate that I have referred to above.
  2. [13]
    To rely on fresh evidence on appeal, leave must be granted.[2] Directions were made by Member Fitzpatrick on 17 August 2020 directing that, if a party seeks to rely on evidence not before the Tribunal below, that party file and serve an application for leave to rely on the fresh evidence along with submissions on why leave should be granted. The Tribunal has not received any such application or submission from the applicant.
  3. [14]
    In any event, it is not necessary for me to determine whether to grant leave for the applicant to rely on the new evidence. The information before the learned magistrate below is sufficient for me to determine the application for leave to appeal and the appeal in the interests of justice.

The application for leave to appeal

  1. [15]
    An application for leave to appeal must set out a basis upon which leave to appeal should be granted.[3] The applicant in this case is not legally represented and the Application does not set out a basis upon which leave to appeal should be granted separately from the basis for the appeal itself. Nonetheless, before considering the appeal, I must first address whether leave should be granted.
  2. [16]
    If s 143(2)(b) of the QCAT Act read with ss 143(3) and (4)(a) and (b) of the QCAT Act contemplate the filing of a separate application for leave to appeal and an appeal, I waive that requirement and order pursuant to ss 62(1) and 61(1)(c) of the QCAT Act that the application for leave to appeal and the appeal be heard together. In doing so, I have had regard to the functions of the Tribunal set out in s 4 of the QCAT Act. In particular, I have had regard to the Tribunal’s function to ensure that proceedings are conducted in an informal way that is as quick as consistent with achieving justice.[4]

Whether leave to appeal should be granted

  1. [17]
    When leave to appeal is required, it should only be granted where an appeal is necessary to correct a substantial injustice and where there is a reasonable argument that there is an error to be corrected.[5]
  2. [18]
    In an annexure to the Application (the Annexure), the applicant sets out the grounds of its appeal. Further grounds of appeal appear to be set out in the form of complaints in submissions filed by the applicant.
  3. [19]
    Among the grounds set out in the Annexure, the applicant sets out that:

The magistrate’s decision was handed down that the time from first being aware of the issues was greater than 6 months, which is incorrect. The majority of the issues and damages caused and unsuitable repair works were only made evident at vacate, as the repairs could not have been inspected until vacate repairs had been conducted as per the tenants obligations.

  1. [20]
    I take this to be a contention that the learned magistrate erred factually by finding that the originating application made to the Tribunal below was made outside of the six month period provided by statute. There is merit to this ground.
  2. [21]
    In her Honour’s decision, the learned magistrate had regard to ss 419 and 417 of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRAA) properly observing that s 419(3) is subject to s 417(2). Section 419 of the RTRAA provides that:

419Applications about breach of agreements

  1. (1)
    This section applies if any of the following claim there has been a breach of a term of a residential tenancy agreement or a rooming accommodation agreement—
  1. (a)
    a lessor or tenant under the residential tenancy agreement;

…

  1. (2)
    The lessor or tenant, or provider or resident, may apply to a tribunal for an order about the breach.
  2. (3)
    The application must be made within 6 months after the lessor or tenant, or provider or resident, becomes aware of the breach.
  3. (4)
    For a residential tenancy, the application may be made—
  1. (a)
    during the term, or after the end, of the agreement; and
  1. (b)
    whether or not an application for termination, or a termination order, has been made about the agreement; and
  1. (c)
    whether or not a rental bond for the agreement is held by the authority when the application is made.

… (emphasis added)

  1. [22]
    Section 417 of the RTRAA provides that:

417Reference to making of tribunal application includes making of dispute resolution request

  1. (1)
    This section applies if—
    1. (a)
      an application about an issue (the dispute issue) may be made to a tribunal by—
    1. (i)
      the lessor or tenant under a residential tenancy agreement; or
    1. (ii)
      a provider or resident under a rooming accommodation agreement; and
    1. (b)
      under a provision of this Act, the question whether the application has been made is relevant to an issue.
  2. (2)
    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.

Note—

Section 419 provides for the time in which the lessor or tenant, or provider or resident, may apply to the tribunal for an order about a breach of the agreement.

(emphasis added)

  1. [23]
    The meaning of ‘the authority’ is set out in the dictionary in schedule 2 of the RTRAA:

authority means the Residential Tenancies Authority.

  1. [24]
    As set out above, the learned magistrate observed that the material before her Honour included a completed dispute resolution request. However, her Honour found that there was no evidence that the request was ever filed with the authority. Respectfully, that is where her Honour erred.
  2. [25]
    In the material before the learned magistrate, there was a letter from the Residential Tenancies Authority dated 4 October 2019. That letter referred to a dispute resolution request in relation to the tenancy at 60 Estuary Parade, Douglas. The letter noted that the dispute was unsuitable for conciliation. I infer from that letter, that the dispute resolution request that her Honour referred to as being within the material (or a similar request preceding the application to the Tribunal) was made to the authority about the dispute issue some time before 4 October 2019. That was before the end of the six-month period established by the learned magistrate. As a result, reading s 419(3) of the RTRAA with s 417(2) of the same Act, the application, at least in part, cannot be said to have been made outside of the six-month period provided for by s 419(3) of the RTRAA.
  3. [26]
    The Annexure also sets out other complaints, including that the application was not statute barred because the majority of the issues and damages were only discovered upon the respondent vacating the premises. It is not necessary to consider this asserted factual error, but I will address the legal error underpinning this issue later in my reasons.
  4. [27]
    The applicant’s written submissions also make complaints which, in my view, have little value for the purpose of this proceeding. They include the fact that the case was heard “via teleconference”, and that being unsuitable for such a “complex case”. The matter was heard during the COVID-19 lockdowns, and hearing matters by teleconference or other remote means has become unexceptional in courts and tribunals.
  5. [28]
    Another complaint is that the “magistrate had already made a decision, and [the applicant was] given no opportunity to argue [its] case”. I take this to be a complaint that the applicant was denied procedural fairness. This complaint also cannot be sustained. As is not uncommon in the Tribunal, the matter was determined on the papers pursuant to s 32 of the QCAT Act. The applicant, in particular, filed submissions and, an extremely voluminous, and in my view unnecessary, amount of supporting material. The learned magistrate alerted the applicant to her preliminary view that the application was “statute barred” during a mention of the matter on 22 January 2020 and the matter was adjourned to allow the applicant to file additional material to show that the claim was not statute barred and to specify damage when it was first noticed and the cost to repair. It cannot be said that the applicant was denied procedural fairness.
  6. [29]
    In the circumstances, I find that the leave to appeal should be granted limited to the ground the learned magistrate erred factually by finding that the originating application made to the Tribunal below was made outside of the six-month period provided by statute.
  7. [30]
    It is necessary to grant leave to appeal to correct a substantial injustice. There is more than a reasonable argument that the learned magistrate erred by finding that the application below was statute barred.

The appeal

  1. [31]
    Having granted leave to appeal, I must now consider the appeal.
  2. [32]
    For the reasons set out above, I find that her Honour erred by finding that the application below was statute barred.
  3. [33]
    I also find that the learned magistrate erred at law by failing to provide adequate reasons and failing to address the case raised by the applicant.
  4. [34]
    The learned magistrate was concerned with the damage and the breaches but did not direct herself or give any reasons relating to the way in which the tenancy was left on vacation, that is, the original complaint by the applicant that the premises were not left, to paraphrase, in the same condition they were in at the start of the tenancy, fair wear and tear excepted. There were no written reasons for the decisions made by the magistrate, so there is a need to find those in the transcript, and it appears that while the matter was done on the papers, there was some real conflict in the evidence with which the learned magistrate attempted to grapple, but not all such matters were addressed.
  5. [35]
    It is recognised that “reasons do not need to be lengthy and elaborate”.[6] That might seem to be all the more so in a high-volume tribunal that is statutorily charged with conducting proceedings informally and expeditiously,[7] but the problem that emerged here was that having misinformed herself about the statutory period, the magistrate did not adequately address the original complaint in the application before her. I find that the learned magistrate’s failures to provide adequate reasons and to address the case raised by the applicant each amount to an error of law.
  6. [36]
    I pause to observe, that given that it was an underlying factual error that also led the learned magistrate into error by failing to provide adequate reasons and failing to address the case raised by the applicant, the matter could likely have resolved much more quickly had it simply been re-opened. No doubt had her Honour corrected the factual error; her Honour would have grappled with the other matters in an appropriate way. Had that happened, the matter could have been resolved far more expeditiously. I acknowledge that I too have the power under s 143A of the QCAT Act to refer the matter back to the Tribunal for re-opening. However, given the extraordinary delay, it is more appropriate that I hear the appeal as I have done and provide reasons that may assist the Tribunal in its original jurisdiction to deal with this matter in an expeditious way.
  7. [37]
    My findings that the learned magistrate has made factual and legal errors in the determination of the application below enlivens my jurisdiction under s 146 of the QCAT Act.
  8. [38]
    It is, of course, desirable if this tribunal is able to substitute its own decision, and if it is able to, that is the course that should be adopted. However, here, conclusion on factual determinations have, in some cases, not been made, and that means that the matter regrettably needs to be returned to the original jurisdiction to make relevant determinations and effect a just result between the parties.
  9. [39]
    Importantly, the member who re-hears this matter will need to make crucial determinations about when breaches of the residential tenancy agreement came to the attention of the applicant and which of the breaches, were the subject of a dispute resolution request or an application to the Tribunal within the six-month period provided by law. Of course, only those breaches of the agreement that were pursued within the parameters set out in ss 417 and 419 of the RTRAA can give rise to a legitimate claim for damages.
  10. [40]
    So, the matter must be returned to the tribunal sitting in Townsville for reconsideration, and assuming a magistrate will sit as the tribunal on the redetermination, those proceedings should be heard by a magistrate other than the magistrate who heard the original application.
  11. [41]
    Therefore, it is ordered: 
  1. Leave to appeal is granted limited to the ground that the learned magistrate erred factually by finding that the originating application made to the Tribunal below was made outside of the six-month period provided by statute.
  2. The appeal is allowed.
  3. The decision of the learned magistrate is set aside.
  4. The matter is returned to the Tribunal sitting at Townsville for redetermination including the hearing further evidence.
  5. Pursuant to s 146(c)(ii) of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal hearing the redetermination be constituted by a member other than the Member who heard the proceedings appealed from.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), schedule 3, dictionary.

[2]Alderton v Wide Bay Constructions Pty Ltd [2017] QCATA 147 at [40]; citing Clarke v Japan Machines (Australia) [1984] 1 Qd R 404 at 408.

[3]Beale v Holmes [2023] QCATA 47 [11]; QCAT Act s 143(2)(b).

[4]  QCAT Act s 4(c).

[5]Pickering v McArthur [2005] QCA 294 [3].

[6]King & Ors v Australian Securities and Investments Commission [2018] QCA 352 [40].

[7]Beale v Holmes [2023] QCATA 47 [34].

Close

Editorial Notes

  • Published Case Name:

    Ray White Townsville v Catalyst Child and Family Services

  • Shortened Case Name:

    Ray White Townsville v Catalyst Child and Family Services

  • MNC:

    [2023] QCATA 79

  • Court:

    QCATA

  • Judge(s):

    Judicial Member Dick SC

  • Date:

    13 Jul 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Alderton v Wide Bay Constructions Pty Ltd [2017] QCATA 147
2 citations
Jump To
Cite 1 - [2017] QCATA 147
Cite 2 - [2017] QCATA 147
Beale v Holmes [2023] QCATA 47
3 citations
Jump To
Cite 1 - [2023] QCATA 47
Cite 2 - [2023] QCATA 47
Cite 3 - [2023] QCATA 47
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
1 citation
Jump To
Cite 1 - [1984] 1 Qd R 404
King & Ors v Australian Securities and Investments Commission [2018] QCA 352
2 citations
Jump To
Cite 1 - [2018] QCA 352
Cite 2 - [2018] QCA 352
Pickering v McArthur [2005] QCA 294
2 citations
Jump To
Cite 1 - [2005] QCA 294
Cite 2 - [2005] QCA 294

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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