Craven v Kataria[2024] QCATA 127

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 21 September 2023 Gordon James Craven filed an application for leave to appeal or appeal from a decision made in the minor civil disputes jurisdiction of the Tribunal on 29 August 2023.

Parties to this appeal

2. [2]
   The parties to an appeal are the parties in the Tribunal below.
3. [3]
   Pursuant to s 42 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act’) I now correct the record to include as applicants in the appeal the other applicants in the proceeding below, Janet Craven and Angela Craven. I do so because those persons should be bound by or have the benefit of the proceeding; or their interests may be affected by the appeal proceeding.^[1]
4. [4]
   Mr Craven has made all relevant submissions in the matter.

Decision

5. [5]
   The decision the subject of the application for leave to appeal or appeal is that the application of the applicants filed on 31 July 2023 for residential tenancy dispute is dismissed.

Background

6. [6]
   The Applicants were tenants of the First Respondent pursuant to a general tenancy agreement for the term 21 June 2022 to 19 June 2023.
7. [7]
   The parties were unable to agree the terms of any further lease. A Notice to leave in Form 12 under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’),^[2] dated 24 April 2023, was given to the applicants (the ‘Notice’). The Notice required the tenants to vacate the property by midnight on 26 June 2023. The Notice records that it was issued for the end of a fixed term tenancy.
8. [8]
   Disputes between the parties arose from changes in terms included in the proposed tenancy agreements, with respect to the holder of the electricity account and solar rebates. Unresolved issues also related to an unrepaired water tank, the owner’s camper trailer parked at the property and in the case of the last proposed agreement the fact that the term was only six months and there was no clarity about who would receive solar rebates.
9. [9]
   The applicants asserted that their family needs made them vulnerable and that they were subject to retaliatory conduct by the respondents through:

   1. delivery of a Form 12 in circumstances where:
      1. agreement could not be reached on the matters in dispute between them;
      2. the Form 12 dated 24 April 2023 was issued after a notice of intention to seek Residential Tenancy Authority (‘RTA’) or Queensland Civil and Administrative Tribunal (‘QCAT’) resolution. That notice was given to the respondents on 23 March 2023.  The RTA notice was received by it on 24 April 2023 and the QCAT application was filed on 16 May 2023;
   2. only being offered a six-month term in circumstances where the applicants had disputed the proposed terms of any renewed lease.
10. [10]
    The applicants also asserted that the respondents’ conduct, otherwise described as retaliatory, was unconscionable conduct in contravention of the Australian Consumer Law (Cth) (‘ACL’).^[3]
11. [11]
    The applicants proceeded with an urgent application before the Tribunal under s 415(5)(ha) of the RTRAA – retaliatory action taken against a tenant.
12. [12]
    In late August 2023 the applicants secured the lease of another property for a 12-month term, with an option to renew for a further 12 months. That occurred shortly before the hearing of the matter.
13. [13]
    Much of the relief sought by the applicants became otiose upon them securing another tenancy. The applicants had sought as an outcome of the proceedings that the Form 12 be set aside and that they be provided with a 12-month lease upon the same terms as previously, but with a $10 increase in rent and an option for a further 12 months rental. They also sought orders that the electricity account remain in Janet Craven’s name, that the trailer be removed and that the burst tank be repaired or replaced or that they be compensated for loss of rainwater facility. They sought to be protected from unfair listing on a tenancy database.
14. [14]
    Alternatively, recognising that another tenancy may be secured, the applicants sought the following compensation:

    1. 2 weeks overlapping rent at the new premises - $1,200.00;
    2. Bunnings’ utility vehicle hire – 3 days $201.00;
    3. Utility fuel - $31.60;
    4. Removalist $1,120.00; and
    5. Carpet cleaning and dog fumigation $280.00.
15. [15]
    The compensation was claimed under s 426(4), in the circumstance of s 426(2) of the RTRAA.^[4] That is a claim for compensation because the lessor was not entitled to give the Form 12 notice to leave on the ground stated.
16. [16]
    Otherwise, the applicants sought various Declarations as to unconscionable conduct in contravention of the ACL, contravention of the RTRAA, breach of the tenancy agreement in relation to the burst water tank and that the applicants are owed a duty of care by the respondents.
17. [17]
    The Adjudicator found that the Form 12 was not issued in retaliation as it was issued in accordance with the legislation in circumstances where a renewed lease was not agreed to, and the fixed term lease was coming to an end. The Adjudicator also found no bad faith on the part of the respondents. Because of those findings the relief sought was not granted. The fact that a new tenancy had been secured was noted and the Adjudicator found that some of the claims were therefore no longer relevant.

Scope of the proceeding before the Adjudicator

18. [18]
    The RTRAA provides for an urgent application to the Tribunal for relief in certain circumstances set out in s 415.^[5] By s 416, for all other matters a party to a residential tenancy agreement may apply to the Tribunal about an issue only if the party has first made a dispute resolution request about the issue and relevantly, the conciliation process has ended without a conciliated resolution having been reached because the authority refuses to provide a conciliation service about the issue.^[6]
19. [19]
    The applicants sought urgent relief arising out of giving a Form 12 which they asserted to be retaliatory action. None of the other issues raised by the applicants are properly categorised as urgent under s 415 of the RTRAA.
20. [20]
    Section 246A of the RTRAA provides that the Tribunal may make an order setting aside the Form 12 if it is satisfied the Form 12 was likely to have been given by the lessor to intimidate or punish the tenant for applying to the Tribunal for an order.^[7] Section 246A of the RTRAA provides for compensation as a remedy for retaliatory action. By the time the matter reached a hearing the applicants had secured another tenancy. Setting aside the Form 12 was then of no utility.
21. [21]
    On one view of things the Adjudicator may have been entitled to dismiss the application for urgent relief and to require the applicants to apply for relief relating to their other issues by way of separate application running on the usual timelines rather than taking advantage of the urgent hearing allocated to the applicants.
22. [22]
    The Adjudicator did not proceed in that way. A pragmatic approach was taken in that the Adjudicator satisfied herself the parties had been issued with a notice from the RTA that the required steps under s 416 of the RTRAA had been undertaken and then proceeded to deal with the remaining issues of claimed compensation and declarations.
23. [23]
    The way in which the hearing unfolded is relevant to questions before the appeal tribunal. No point is taken by the respondents as to a lack of jurisdiction in the minor civil disputes jurisdiction to deal with the non-urgent matters. I am satisfied given a letter from the RTA was produced by the applicants, stating that the matter is not conciliable, that there was jurisdiction to deal with the non-urgent matters at the hearing.

Application for leave to appeal or appeal

24. [24]
    The applicants must obtain leave to appeal before the appeal may proceed.^[8]
25. [25]
    The principles which guide the grant of leave are that:

    1. there is a reasonably arguable case of error in the primary decision;^[9]
    2. there is a reasonable prospect that the applicants will obtain substantive relief;^[10]
    3. leave is necessary to correct a substantial injustice cause by the error;^[11] or
    4. there is a question of general importance upon which further argument, and a decision of the appeal tribunal, would be to the public advantage.^[12]

The applicants’ concerns

26. [26]
    At the heart of the applicants’ concerns is a dispute over the name in which the electricity account for the rented premises should be held, and who should receive solar rebates. The applicants Gordon Craven and his wife Janet Craven are pensioners and are entitled to a pensioner discount which would be lost if the electricity account was not in their name. Further, they have had the benefit of solar rebates under previous tenancy agreements. Because of the needs of disabled children living with the applicants the family required a long-term lease.
27. [27]
    These things were put at jeopardy by the respondents’ special conditions in the first two proposed leases as to the electricity account and solar rebate and in the last proposed lease only offering a six-month term, with no clarity as to the solar rebate.
28. [28]
    Mr Craven does not accept the evidence given by the property manager, Ms Black, that the solar credit was to go to the tenants and that it was an oversight such a term did not appear in the first two versions of the proposed leases. Ms Black gave evidence that the lessors were happy for the electricity account to remain in the tenants’ name. Her evidence was that the special condition in the proposed leases was an administrative error on the part of Coronis Real Estate.
29. [29]
    In the end the last offered lease no longer required the electricity account to be held in the lessors’ names, however the solar credits were not expressly said to go to the tenants. By then the lessors were only prepared to offer a 6-month lease. The evidence from Ms Black was that she was later told the reason for a 6-month term was that the lessors wished to live in the premises upon the forthcoming birth of a child.
30. [30]
    The point made by Mr Craven is that there had been much communication with the property manager over the electricity account name and the solar rebates and it was never said that an error had occurred in the drafting of the proposed leases. If that had emerged it is argued that the applicants could have signed a 12-month lease. Instead, they have been forced to move with attendant cost and distress.
31. [31]
    Mr Craven argues that the evidence as to administrative error took the applicants by surprise, was false, and that it led the Adjudicator into error.
32. [32]
    The applicants say that they are entitled to compensation under s 426(4) of the RTRAA arising out of the conduct of the respondents.^[13]

Respondents’ submissions

33. [33]
    The respondents in their submissions purport to give evidence as to the circumstances surrounding the proposed leases and the status of the terms in relation to the electricity account and the solar rebate. The evidence is more detailed than that given at the hearing. The respondents also purport to give evidence as to the basis for the issue of the Form 12, which accords with the exchanges with the Adjudicator at the hearing. The submissions have been prepared by Ms Black on behalf of the respondents.
34. [34]
    An appeal is not a re-hearing where further and better evidence may be given. The respondents’ submissions are therefore of limited help in conducting an enquiry as to whether a reasonable argument has been shown as to error in the Tribunal below.

Applicants’ reply submissions

35. [35]
    Mr Craven’s reply submissions challenge Ms Black’s authority to make submissions on behalf of all respondents and submits that the submissions should be struck out. He also disputes the factual matters raised in the response submissions.
36. [36]
    For the reason given continued debate over the facts is not relevant to this application for leave to appeal or appeal.

Consideration of the grounds of appeal

37. [37]
    Mr Craven has not characterised the grounds of appeal as an error of law, of fact or mixed fact and law.
38. [38]
    The grounds of appeal described as grounds 1, 2, 3, 5 and 6 are formulations of a contention that the Adjudicator was in error in accepting that the electricity account ownership and solar rebate issue was an administrative error, corrected on the final proposed lease. It is argued that result is against the weight of evidence. On that formulation Mr Craven is raising an error of law.
39. [39]
    Mr Craven put evidence before the Tribunal which may have justified the Adjudicator rejecting the evidence of Ms Black that an administrative error occurred with respect to the holder of the electricity account and entitlement to solar rebates, corrected in the final proposed lease.
40. [40]
    However, even if the Adjudicator was wrong in accepting Ms Black’s evidence in the face of the other evidence before her, the real question is whether accepting Ms Black’s evidence led the Adjudicator into error in finding that the giving of a Form 12 was not retaliatory but was usual practice and finding that there had been no unconscionable conduct which gave rise to an entitlement to compensation.
41. [41]
    These findings are also relevant to grounds 7, 10 and 11.
42. [42]
    Grounds 7 and 11 go to an asserted failure by the Adjudicator to find unconscionable conduct on the part of the respondents in contravention of the Australian Consumer Law. The applicants object to the Adjudicator treating delivery of a Form 12 as normal practice because they consider its delivery in the circumstances to be retaliatory and unconscionable. These contentions are alleged errors of law.
43. [43]
    Ground 10 is that the Adjudicator did not expressly address that the Form 12 was issued in breach of s 291(2) of the RTRAA, which prohibits the lessor giving a notice to leave under s 291 (notice relates to the end of a fixed term agreement) if the tenant is proposing to apply to a tribunal for an order under the Act.^[14] The ground links with the assertion that the respondents took retaliatory action against the applicants in issuing the Form 12. This is an alleged error of law, or error of mixed law and fact.
44. [44]
    Beyond the allegation that the Form 12 was delivered in retaliation for the applicants’ challenge to the proposed special conditions, Mr Craven also asserts the Form 12 was given contrary to s 291 of the RTRAA,^[15] that is at a time when he proposed applying to the Tribunal for an order under the Act. In reality the further assertion relates to the same complaint.
45. [45]
    The reason for Mr Craven proposing to apply to the Tribunal for an order was because of the applicants’ complaint the Form 12 was retaliatory. However, by the time of the hearing it was no longer relevant to enquire into the lawfulness of the Form 12 because there was no need to set it aside. That is the context within which the Adjudicator’s findings must be seen.
46. [46]
    Mr Craven submits that the Form 12 was not given for the ground stated on the Form, being end of the fixed term agreement. He contends that it was given for retaliatory reasons and the lessor was not entitled to give the notice on the ground stated. On the basis of this argument Mr Craven seeks an award of compensation under s 426(4) of the RTRAA.^[16]
47. [47]
    As I understand Mr Craven’s argument, if the Adjudicator had not accepted that the special conditions were proposed as a result of administrative error and that the problems had been resolved by the time of the final offer, the Adjudicator should then have found that the Form 12 was not given to address the end of the agreement, but rather the real reason for giving the Form 12 was to punish the applicants for their objections to the special conditions.
48. [48]
    Mr Craven’s submission involves the drawing of an inference as to what the Adjudicator might have concluded.
49. [49]
    Even if it is accepted that it was against the weight of evidence to accept the evidence of Ms Black, that evidence was not the only basis on which the Adjudicator found the lessor was entitled to give the Form 12, and that no entitlement to compensation arose.
50. [50]
    The Adjudicator stated a number of times that the giving of a Form 12 is normal practice and referred to the notice period required to give the Form 12. The Adjudicator said in her reasons that issuing a Form 12 for the end of a fixed term lease requires two months-notice. She noted that unsuccessful attempts were made to negotiate a new lease in March. The Adjudicator found that it is common practice that a real estate agent would issue a Form 12 if the lease was not going to continue.
51. [51]
    Although not specifically referenced by the Adjudicator the basis for her conclusion can be found in s 291 of the RTRAA, which provides that a lessor may give a notice to leave the premises to the tenant if the residential tenancy agreement is a fixed term agreement and the notice relates to the end of the agreement.^[17] As a starting point the respondents were lawfully entitled to issue a Form 12 to the applicants given the imminent expiry of the fixed term agreement. If a notice is to be validly given it must give 2 months’ notice of the handover day at the end of the fixed term.^[18] In circumstances where no agreement had been reached on the terms of a new agreement, it is not unreasonable for a Form 12 to be issued to ensure compliance with the relevant time constraints.
52. [52]
    I consider that there was a basis for the Adjudicator’s finding that the Form 12 was properly given and was not retaliatory. That basis stands apart from Ms Black’s evidence.
53. [53]
    As to the asserted failure of the Adjudicator to find unconscionable conduct under the ACL, the position followed in this Tribunal is that the RTRAA is intended to exclusively cover all aspects of the procedure for determination of disputes arising under residential tenancies. In Big4 Brisbane Northside Caravan Village v Schliebs^[19] Justice Wilson discussed the prospect of an adjudicator treating an issue relating to a residential tenancy as a type of minor civil dispute other than a residential tenancy dispute. His Honour said that the RTRAA is intended to be prescriptive and all-embracing in governing the procedure for determination of disputes arising under residential tenancies.
54. [54]
    Consistent with His Honour’s view in the Big4 case, where the RTRAA directly addresses a matter, then it is the RTRAA which must govern determination of disputes arising under residential tenancies. In this case s 426 of the RTRAA deals with the question of when a Form 12 may not be delivered and prohibits the giving of the Form if that constitutes retaliatory action against the tenant.^[20] Section 246A of the RTRAA provides for the relief available in the event of retaliatory action by a tenant.^[21]
55. [55]
    In this case Mr Craven has sought to characterise the respondents’ conduct as both retaliatory and unconscionable. I do not think it fell within the jurisdiction of the Tribunal below to deal with the issue as one of unconscionable conduct under the ACL. To the extent that a finding was made that there was no unconscionable conduct, it does not assist the applicants in their application for leave to appeal where there was no jurisdiction in any event to deal with the complaint.
56. [56]
    Grounds 1, 2, 3, 5, 6, 7, 10 and 11 of the application for leave to appeal or appeal are not reasonably arguable so as to support a grant of leave to appeal.
57. [57]
    There is no numbered ground 9.
58. [58]
    Ground 4 is that the issue of administrative error was not raised until the hearing and that the applicants were caught by surprise and prejudiced in the presentation of their case. That appears to be an argument that the hearing was conducted with a lack of procedural fairness such that the applicants were denied natural justice. That is an alleged error of law.
59. [59]
    I note from the transcript of the hearing that the applicants were given an opportunity to respond to Ms Black’s evidence. The transcript shows that Mr and Mrs Craven made the point about having questioned the special conditions. Their material backs up their position. I do not consider that there has been a lack of procedural fairness sufficient to amount to an error of law. This ground is not reasonably arguable so as to support a grant of leave to appeal.
60. [60]
    Ground 8 is that the Adjudicator appeared to assist the property manager at points in the hearing and was biased in favour of the property manager. This is an alleged error of law.
61. [61]
    Mr Craven asserts that the Adjudicator was biased in favour of Ms Black. The test for bias is whether a hypothetical, fair-minded observer would view the decision-maker as impartial.
62. [62]
    The High Court reaffirmed the basic test in Ebner v Official Trustee in Bankruptcy.^[22] Application of the test requires two steps. First, identification of the matter which underpins the apprehension that a decision-maker might decide a case other than on its legal and factual merits. Second, articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.
63. [63]
    Mr Craven gives five examples of the Adjudicator being seen to assist Ms Black:

    1. Summary dismissal of claims of unconscionable conduct. Apart from unconscionable conduct under the ACL not falling within the jurisdiction of the Tribunal in a residential tenancy dispute, I note that the Adjudicator was asked for reasons for her conclusion on this issue. The adjudicator gave reasons including that issuing a Form 12 is common practice, that there is no requirement on a lessor to provide a long-term lease and that a real estate agent must follow an owner’s instructions. Where reasons for a conclusion are sought and given, I think a fair-minded observer would view the Adjudicator as impartial.
    2. Telling the applicants that even if a 12-month lease had been signed, the owners could still have issued a notice to leave within that 12 months because they needed to move back in, without giving any clarification. I note that when questioned as to whether that statement was correct the Adjudicator signalled that was the case by saying: “mmm”.^[23] The exchange was not strictly germane to the matters before the Adjudicator, being something of an aside for Mr Craven’s benefit, in explaining the lack of security experienced by tenants. I think a fair-mined observer of this exchange would view the Adjudicator as impartial.
    3. Telling the applicants that some agencies issue a Form 12 at the start of the lease. It is asserted the statement was not relevant, but assisted Ms Black and was to discourage the tenants from making their claims. I note that statement from the Adjudicator occurred as part of a discussion with Mr and Mrs Craven as to why reference to a Form 12 by the real estate agent may not be “intimidating”, but rather accords with usual practice if a lease may not be renewed. The statement was made by way of explanation to Mr and Mrs Craven. I think a fair-minded observer of this exchange would view the Adjudicator as impartial.
    4. Apparently ignoring Mr and Mrs Craven’s objection to the evidence of Ms Black as to administrative error in relation to the electricity account holder and entitlement to solar rebates and not questioning Ms Black about the error. It seems Mr Craven anticipated the Adjudicator would cross-examine Ms Black. That is not the role of the Adjudicator. I note the Adjudicator gave Mr Craven an opportunity to explain the applicants’ position, which he did. I think a fair-minded observer of the hearing would view the Adjudicator as impartial.
    5. Identifying for Ms Black the name of the legislation which requires a real estate agent to follow an owner’s instructions. There can be no doubt about a real estate agent’s obligations in this regard. The point is not germane to the outcome of the matter. I think a fair-minded observer of the hearing would view the Adjudicator as impartial.
64. [64]
    In coming to a conclusion that there is no evidence of apprehended bias on the part of the Adjudicator, I observe that a minor civil dispute proceeding is necessarily conducted quickly and with an absence of formality. Exchanges between the parties and the Adjudicator may not be as elegantly framed as one might see in superior courts. It is in this context that a view should be formed as to whether there has been a breach of natural justice arising from the statements made by the Adjudicator at the hearing.
65. [65]
    It is also the case that the critical statement from the hearing is the reasons for decision. The reasons address the important issues in the matter and put in context comments and exchanges made earlier in the hearing. The fact that a party has their claim dismissed is not evidence of apprehended bias. The fact that errors may have occurred in reaching the decision is also not evidence of apprehended bias. In this case the Adjudicator addressed herself to the facts and the law as she understood them. There is nothing to suggest that Adjudicator failed to do so because of a bias in favour of the respondents.
66. [66]
    The test for apprehended bias is not made out. The ground of appeal is not reasonably arguable so as to support a grant of leave to appeal.

Is there a prospect of substantive relief?

Relief sought in the appeal

67. [67]
    No grounds of appeal have been found sufficient for the grant of leave to appeal. Accordingly no appeal might succeed whereby the applicants would receive substantive relief.
68. [68]
    It may be useful to make some observations.
69. [69]
    Mr Craven submits that the declarations and compensation sought below should be ordered by the appeal tribunal. I note that the application for leave to appeal or appeal seeks other relief:

    1. leave to appeal be given;
    2. set aside the dismissal of the initiating application;
    3. orders under s 48(2) of the QCAT Act;^[24]
    4. declaration of a contravention by the respondents and Ms Black of ss 216(1) and (2) of the QCAT Act (false and misleading information);^[25]
    5. that pursuant to s 218(g) of the QCAT Act the respondents and Ms Black be held in contempt of the Tribunal;^[26]
    6. pursuant to s 219 of the QCAT Act those held in contempt be punished at the discretion of the Tribunal;^[27]
    7. other orders deemed appropriate.
70. [70]
    If leave to appeal were granted, then insofar as the applicants have raised errors of law any appeal would be dealt with under s 146 of the QCAT Act.^[28] Errors of fact or mixed fact and law would be dealt with under s 147 of the QCAT Act.^[29] An outcome of a successful appeal may be remittal to another adjudicator to re-hear the matter.
71. [71]
    It is not certain that another Adjudicator would award the applicants compensation under s 426 of the RTRAA.^[30] I observe that compensation is generally awarded to place a complainant who has suffered damage back into the same position as if the damage had not occurred.^[31] A complainant is not entitled to be put into a superior position.^[32]
72. [72]
    Of the amounts claimed by way of compensation the moving costs and costs of cleaning the rental property were all costs which would have been incurred by the applicants upon the end of the tenancy at some point in the future but have been brought forward. A lessor will not ordinarily be liable for these costs.^[33] If an entitlement to compensation could be established, it is possible that two weeks overlapping rent might be recovered. It is possible interest on the moving costs might be recovered.
73. [73]
    In all, relief on a very limited basis might be all the applicants could recover if their case was otherwise tenable.
74. [74]
    As to the other relief sought, I consider it to be misconceived on the basis of a lack of jurisdiction with respect to the ACL, further there is no need for any findings in this application for leave to appeal or appeal that Ms Black gave false or misleading evidence or that she is in contempt of the Tribunal. Ms Black’s evidence was not fundamental to the Adjudicator’s finding that the Form 12 was not issued in retaliation.

Is leave necessary to correct a substantial injustice caused by error?

75. [75]
    I have concluded that the grounds of appeal do not demonstrate a reasonably arguable case of error. Further the applicants do not have reasonable prospects of obtaining substantive relief on a rehearing of the matter. On these bases leave is not necessary to correct a substantial injustice.

Is there a question of general importance?

76. [76]
    The issues in this matter are particular to the applicants. There is no question of public importance on which further argument and a decision of the appeal tribunal would be to the public advantage.

Conclusion

77. [77]
    For the reasons given there is no basis on which leave to appeal should be granted.

Order

1. The application for leave to appeal and appeal is dismissed.