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  4. Darestani v CSJJ Pty Ltd t/a Vanilla Rental - [2024] QCATA 129

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Darestani v CSJJ Pty Ltd t/a Vanilla Rental[2024] QCATA 129

Darestani v CSJJ Pty Ltd t/a Vanilla Rental[2024] QCATA 129

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Darestani & Anor v CSJJ Pty Ltd t/a Vanilla Rental & Anor [2024] QCATA 129

PARTIES:

ario Yousefi darestani

(applicant/appellant)

nazil ghafouryan

(applicant/appellant)

v

csjj Pty ltd t/as vanilla rental

(first respondent)

kerry rutter

(second respondent)

APPLICATION NO/S:

APL040-23

ORIGINATING APPLICATION NO/S:

MCD1574-22 Brisbane

MATTER TYPE:

Appeals

DELIVERED ON:

6 December 2024

HEARING DATE:

19 September 2024

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

  1. Leave to file fresh evidence granted.
  2. Leave to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where the respondent lessor sought recovery of the bond held by the Residential Tenancies Authority – where the applicant tenants objected and filed a dispute resolution request – where the dispute was not resolved at the conciliation – where the applicants filed an application to resolve a tenancy dispute in the Tribunal – where the respondent filed a counter application – where the Adjudicator determined both claims in the proceedings – where the applicants sought leave to appeal on the basis the respondent had failed to seek conciliation through the Residential Tenancies Authority prior to filing the counter application – where the true issue in dispute was the failure of the tenants to comply with the obligations to return the property to appropriate condition on vacating – where further conciliation prior to making the counter application was unnecessary 

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 111, s 136D, s 188(4), s 397(1), s 398(1), s 413, s 416(1)(a)(ii)

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 43(1), s 44(1), s 51(3), s 51(4)

Evans v Saarman [2013] QCATA 58

Parr v Queensland Police Service [2021] QCA 216

Pickering v McArthur [2005] QCA 294

Ruhle v Lormist Pty Ltd [2022] QCAT 100

APPEARANCES & REPRESENTATION:

Applicants:

Self-represented by A Darestani

First Respondent:

Self-represented by R Millard

Second Respondent:

Self-represented

REASONS FOR DECISION

  1. [1]
    The applicants, Mr Darestani and Ms Ghafouryan (together ‘the applicants’), were tenants of a residential property at Jamboree Heights, Brisbane for eight years.
  2. [2]
    They were then given Notice to Leave without grounds by the lessor’s agent, the first respondent, effective as and from 15 April 2022.
  3. [3]
    The applicants vacated and the first respondent, on behalf of Ms Rutter the lessor, the second respondent, claimed the bond of $1,740 held by the Residential Tenancies Authority (‘RTA’). The tenants objected and filed a dispute resolution notice with the RTA. A conciliation conference took place but there was no resolution and the applicants filed an application for minor civil dispute – tenancy dispute in the Tribunal. They sought recovery of their bond and also asked for “other reimbursement and compensations as applied” and a rent decrease.
  4. [4]
    The matter came on for hearing before an Adjudicator on 24 October 2022 when it was adjourned. The Adjudicator ordered the respondent to “re-file” its counter application by 31 October 2022 and provide evidence of payment of the filing fee. The applicants were directed to file a response to the counter application by 7 November 2022.
  5. [5]
    It is unclear why this direction was made, given the Tribunal file shows the counter application had already been filed on 19 October 2022 and a filing fee of $130.70 paid on 20 October 2022. An application for the second respondent to be joined to the action had also been filed on 19 October 2022.
  6. [6]
    The registry served another copy of the same counter application filed on 19 October 2022 on the applicants on 11 November 2022.
  7. [7]
    The applicants wrote to the registry on that date to note it was the same counter application but claiming the Tribunal had not accepted that document at the hearing on 24 October 2022. The applicants therefore stated that “no response to these documents needs to be presented by the applicants as these have not been correctly filed as requested by the court (item 2 of the decision made on 24 October 2022).”
  8. [8]
    The matter was relisted for hearing on 13 January 2023 with the outcome that the applicants were ordered to pay the respondent the sum of $1,167.07 and the respondent was also awarded the bond held at the RTA of $1,740.
  9. [9]
    The applicants want to appeal that decision.
  10. [10]
    Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1] 
  11. [11]
    Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2] 

Grounds of appeal

  1. [12]
    The applicants rely on the following grounds:
    1. The Tribunal exceeded jurisdiction in making awards of compensation in addition to orders concerning release of the bond.
    2. The applicant was denied natural justice in not being able to file a response to the respondent’s counter application.
    3. The Tribunal made mistaken findings of fact in circumstances where the applicant was denied the opportunity to file documents in response to the respondent’s counter application.

Ground 1

  1. The Tribunal exceeded jurisdiction in making awards of compensation in addition to orders concerning release of the bond.
  1. [13]
    The applicants submit that the respondent had not pursued conciliation of its claims in the counter application before filing it in the Tribunal. Therefore, applying s 416(1) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘the Act’), they were not entitled to recover anything on the counter application. The only amount available for an order by the Adjudicator was the bond money of $1,740.
  2. [14]
    The respondent responds that the dispute before the RTA was initiated by the applicants and was about the condition of the premises when the applicants vacated. That was the issue in dispute in the RTA and that was the same issue pursued by them in the Tribunal through their counter application.
  3. [15]
    The respondent’s counter application claimed compensation as follows:

Rent arrears

$223.57

Carpet cleaning

$1857

Pest treatment

$90

Bond clean

$637.50

Fly screen and window sill repairs

$616

Pizza oven removal

$266

Gardening

$880

Plus additional (gardening) work

$1,210

Bedroom window and air-conditioner windows

$450

Mould clean and clean all vertical surfaces

$456.50

Replacement of keys and changing locks

$295

Curtain replacement

$200

$5,509.57

  1. [16]
    That far exceeded the bond held by the RTA of $1,740.
  1. [17]
    At the hearing on 13 January 2023 the learned Adjudicator heard evidence about and made orders finalising both the application for tenancy dispute and the counter application.
  2. [18]
    Rental bond is defined in s 111 of the Act as:
  1. (1)
    A rental bond is an amount—
  1. (a)
    for a residential tenancy agreement—
  1. (i)
    paid by or for the tenant under the agreement; and
  1. (ii)
    intended to be available for the financial protection of the lessor against the tenant breaching the agreement;
  1. [19]
    By s 416 of the Act:
  1. 416
    Dispute resolution request required before applying to tribunal
  1. (1)
    The lessor or tenant under a residential tenancy agreement, or provider or resident under a rooming accommodation agreement, may apply under this Act to a tribunal about an issue only if the applicant has first made a dispute resolution request about the issue and—
  1. (a)
    the conciliation process has ended without a conciliated resolution having been reached, because—
  1. (i)
    the authority refuses to provide a conciliation service about the issue; or
  1. (ii)
    a party refuses to participate, or continue to participate, in the conciliation process; or
  1. (iii)
    the parties participate in the conciliation process but do not reach an agreement on resolving the dispute; or
  1. [20]
    The requirement for parties to participate in mediation or conciliation of a dispute before proceeding in the Tribunal is not exceptional. There are a number of Acts of Parliament giving the Tribunal jurisdiction to determine disputes where a precursor dispute resolution process is imposed.
  2. [21]
    Section 397(1) of the Act makes clear that the first step in resolving an issue in a dispute relating to a residential tenancy agreement is negotiation between the parties.
  3. [22]
    If that does not resolve the matter, by s 398(1) the RTA conciliation process becomes available and is designed to help and encourage the parties resolve the dispute.
  4. [23]
    If the conciliation does not resolve the issue in dispute, the Tribunal process then becomes available.
  5. [24]
    There are similar statutory schemes scheduling negotiation followed by mediation and then litigation in other jurisdictions the province of the Tribunal. Manufactured homes and retirement village disputes come to mind. Then there are legislative schemes with a mediation prerequisite before a party is entitled to litigate the dispute in the Tribunal, such as retail shop lease disputes, building disputes, breach of information privacy and anti-discrimination claims.
  1. [25]
    In some schemes the mediation or conciliation process is given responsibility to act as gate keeper, filtering out matters that should not proceed to the Tribunal, such as in retail shop lease disputes where the application is out of time or applications to the information commissioner in a breach of information privacy matter deemed by the information commissioner to be frivolous, vexatious, misconceived or lacking in substance. Generally however, the mediation or conciliation process is in place to facilitate resolution of disputes if possible without the necessity of the parties turning to litigation.
  2. [26]
    In residential tenancy disputes, the conciliation process is of the latter kind. It is not intended to place any obligation on the RTA to filter access to Tribunal proceedings. It is not intended to be any sort of barrier to resolution where resolution ultimately requires proceedings in the Tribunal.
  3. [27]
    In Ruhle v Lormist Pty Ltd [2022] QCAT 100, a building dispute, it was submitted that there had not been compliance with s 77(2) Queensland Building and Construction Commission Act 1991 (Qld) requiring the parties to participate in a dispute resolution process before applying to the Tribunal, because the dispute resolution had related to only a concrete slab, not the shed structure built on it. The learned Senior Member said:
  1. [28]
    The construction of s 77(2) pressed by the respondent would, if accepted, impose constraints on the conduct of building disputes in the Tribunal not found in the clear words of the provision. If the respondent’s submission is accepted, any proposed amendment to the scope of a building dispute before the Tribunal by, for example, including additional defective items of building work, would first require an applicant to comply with a QBCC dispute resolution process. What s 77(2) requires is compliance with a dispute resolution process before a proceeding for a building dispute is commenced in the Tribunal. What s 77(2) does not require is compliance with such a process every time there is a material change in the particulars and scope of such a dispute once proceedings have been commenced. 
  1. [29]
    The dispute between the parties relates to the construction of the extension to the shed on the applicants’ land. The building works involved both the construction of a slab and the construction of a structural extension to the shed. The proposed claim by the applicants simply enlarges the scope of the existing dispute. The construction of s 77(2) argued for by the respondent is rejected. 
  1. [28]
    The remarks by the Senior Member apply equally to residential tenancy disputes, but in residential tenancies disputes there is the additional complexity of confidentiality associated with the conciliation process to be factored in. Section 413 of the Act provides:
  1. Admissions made in conciliation process
  1. (1)
    Evidence of anything said or an admission made during the conciliation process for a dispute is inadmissible—
  1. (a)
    at the hearing before a tribunal of an application relating to an issue to which the conciliation process relates; or
  1. (b)
    in another proceeding before a court or elsewhere.
  1. [29]
    In practical terms that means it will be impossible for the Tribunal to know precisely what particulars or items of claim associated with an issue in dispute were considered at a RTA conciliation conference.
  2. [28]
    At the hearing of the application for leave to appeal, the applicants claimed none of the items of claim listed in the counter application had been discussed at the RTA conference. I note however in a statement of evidence filed by the applicants in the minor civil dispute proceedings they said:

I sent a copy of the entry report with some of our photos to her via email outlining the house problems, asking her kindly to release our bond (refer attachment K). But they didn’t. Surprisingly, during RTA dispute session she talked about other items not originally listed in her claims….

  1. [29]
    Ms Millard for the respondent was asked whether she agreed the items of claim listed in the counter application had not been discussed at the RTA conciliation. She answered no. She said, somewhat confusingly, that the respondent “responded to his application of what he was submitting”. She added “He had his argument, we had ours, on the day of mediation. Obviously, we were seeking the bond for the clean up of the property and the condition of the property.”
  1. [30]
    To the respondent the dispute involved more than simply “the bond”. It concerned a dispute over the applicants’ failure to comply with their obligations under the residential tenancy agreement to leave the property in the same condition on exit as it had been on entry, fair wear and tear excepted.
  1. [31]
    A bond is simply a money earnest, a token of good faith that the applicants as tenants will comply with their obligations under the residential tenancy agreement. Indeed s 136D of the Act provides:
  1. Tribunal order about payment of rental bond
  1. (1)
    This section applies if, under section 136B, an interested person applies to the tribunal for an order about the payment of a rental bond.
  1. (2)
    The tribunal may make any order about payment of the rental bond the tribunal considers appropriate having regard to—
  1. (a)
    for a residential tenancy agreement—
  1. (i)
    the efforts made by the tenant to comply with the tenant’s obligation under section 188(4); and
  1. (ii)
    the lessor and tenant’s compliance with this Act for the agreement; and
  1. (iii)
    the evidence supporting any claim on all or part of the rental bond;
  1. [32]
    Section 188(4) provides:

At the end of the tenancy, the tenant must leave the premises and inclusions, as far as possible, in the same condition they were in at the start of the tenancy, fair wear and tear excepted.

  1. [33]
    That obligation under the Act was a term of the residential tenancy agreement.[3] The respondent applied to the RTA for payment to the respondent of the bond on the basis that the obligation imposed on the applicants by s 188(4) had been breached. The applicants opposed that claim to the bond maintaining there had not been breach and lodged the dispute resolution request with the RTA. The RTA conciliation followed.
  1. [34]
    It is not every individual item or particular of a residential tenancies dispute, such as a lessor’s claim for the cost of carpet cleaning or mowing or a handyman’s charges for replacing light bulbs, that needs be addressed at a RTA conciliation. Section 416(1)(a)(ii) makes clear that a party need not engage at all in the conciliation process but the process will still be effective to open the way for Tribunal litigation.
  2. [35]
    What is important is whether or not the issue in dispute taken to the Tribunal has been raised at the preceding RTA conciliation. That question will necessarily be answered in broad brush fashion given the difficulty of peering behind the confidential conciliation process and that in most circumstances the true issue in dispute will also be broad brush, such as a breach of s 188(4) of the Act.
  3. [36]
    I note in Evans v Saarman [2013] QCATA 58, which involved separate claims for compensation by tenant and lessor, the tenant had made an application for RTA dispute resolution but the lessor had not. The learned Senior Member there said:

It is an artificial reading of s 416 to require both parties to make a dispute resolution request. The purpose of the section is to ensure the parties have first accessed the dispute resolution process offered by the Residential Tenancies Authority. If one party has made a dispute resolution request, the RTA will refuse another party’s request to conciliate about the same issue. By default, therefore, a second dispute resolution request will end automatically within the meaning of s 416(1)(a)(i). The purpose of the section is achieved through conciliation on the first request and there is simply no utility in a second request.

  1. [37]
    The Senior Member does not explain the basis upon which she states that the RTA would refuse to accept a second request to conciliate the same issue. That is something upon which I have not had the benefit of submissions. However her remark about a second request lacking utility is on point.
  2. [38]
    One might ask whether it make any difference that in the matter at hand not all the costs of the various compensation items claimed by the respondent in the counter application were known before the conciliation on 21 June 2022. The receipts for work done (the time when the work was done is not made clear) show:

Item

Amount

Date

Carpet cleaning

$185

17.5.22

Pest treatment

$90

17.5.22

Bond clean

$637.50

16.6.22

Fly screen and window sill repairs

$616

25.6.22

Pizza oven removal

$266

1.7.22

Gardening

$880

1.7.22

Plus additional (gardening) work

$1,210

1.7.22

Bedroom window and air-conditioner windows

$450

not dated

Mould clean and clean all vertical surfaces

$456.50

1.7.22

Replacement of keys and changing locks

$295

14.6.22

Curtain replacement

$200

7.6.22

  1. [39]
    The answer in my opinion is no. Most of the work concerned had been discussed and the applicants’ responsibility for it contested prior to conciliation. The various items were but particulars of the claim constituting the issue in dispute between the parties, namely whether the applicants had breached s 188(4) of the Act and therefore the residential tenancies agreement and were responsible for payment of compensation to cover the costs of making good the condition of the property.
  1. [40]
    It was not necessary for the respondent to seek further conciliation of the items of claim listed in the counter application prior to filing the counter application.
  2. [41]
    As such, this ground of appeal cannot succeed.

Grounds 2 and 3

  1. The applicant was denied natural justice in not being able to file a response to the respondent’s counter application.
  2. The Tribunal made mistaken findings of fact in circumstances where the applicant was denied the opportunity to file documents in response to the respondent’s counter application.
  1. [42]
    Grounds 2 and 3 are appropriately determined together.
  2. [43]
    In submissions filed by the applicants with their application for leave to appeal the applicants submit that the respondent failed to comply with the Adjudicator’s order to re-file its counter application by the deadline of 31 October 2022. Additionally they were not given a (new) counter application by 7 November 2022 and therefore they were unable to file a response to the counter application.
  3. [44]
    The applicants say they were unable to file material in response because there was no new counter application filed.
  4. [45]
    The Counter application bears a filing date of 19 October 2022. It bears the Tribunal seal. It was appropriately filed on 19 October 2022. It is unclear why the Adjudicator required it to be refiled. It may be that the document had not been placed on the file by the registry before the hearing on the 24th. That is not uncommon where documents are filed close to hearing dates.
  5. [46]
    There is no basis to claim the counter application was not validly filed and therefore not a valid counter application before the first or final hearing however.
  6. [47]
    The registry is responsible for serving applications and counter applications in residential tenancy matters. The registry served a copy of the counter application on the applicants on 11 November 2022. The applicants wrote to the registry that same day and said the counter application was the same as the document filed on 31 October 2022, the Tribunal had not accepted the document filed on 31 October 2022 and therefore the applicants were not required to file any response.
  7. [48]
    Indeed a response is not required to be filed to an application for minor civil dispute – tenancy dispute.[4] Only in minor civil dispute – minor debt claims is the filing of a response necessary. A party may respond if the party wishes.[5] A respondent to a minor civil dispute – tenancy dispute may file a counter application however. The counter application proceeding is conducted as if it was an application for orders the subject of the counter application and for that purpose, the respondent making the counter application is taken to be the applicant and the person against whom the counter application is made is taken to be the respondent.[6]
  8. [49]
    The applicants attended the final hearing with documents on hand rather than having filed them beforehand. In that respect their circumstances were no different from any other respondent attending a minor civil dispute – residential tenancy dispute proceeding.
  9. [50]
    Ms Millard for the respondent said the Adjudicator did not have the counter application at the first hearing. It had been filed before that however. She said the respondent complied with the directions of the Adjudicator in any case and filed the same document again and a copy of the receipt for payment of the filing fee.
  10. [51]
    The registry served the counter application a second time on 11 November 2022. That was after the date directed for service by the Adjudicator.
  11. [52]
    On the return date of 13 January 2023 the same Adjudicator accepted that the counter application had been filed on 19 October 2022. There was no mention at the second hearing before him that the initial filing had been invalid. The applicants made no mention of being disadvantaged in not being able to file material in response. Nor was there anything said at that hearing by the applicants about them being disadvantaged by the late service of the re-filed counter application.
  12. [53]
    The applicants claim they were not permitted to tender material to the Adjudicator. There is no evidence of that reading the transcript of proceedings. There was no refusal by the Adjudicator to consider additional relevant material. There was no mention of the applicants having additional relevant material.
  13. [54]
    It was the choice of the applicants not to file documents responding to the counter application. There is no evidence that there was additional evidence held by the applicants relevant to the items of claim set out in the counter application in any case. Additional material could have been tendered by the applicants at the second hearing before the Adjudicator but was not.
  14. [55]
    There was no denial of natural justice to the applicants. The applicants were not denied opportunity to file material. The findings made by the Adjudicator were findings on the material before him, both documentary and in oral evidence.
  15. [56]
    These grounds of appeal have no prospect of success either.
  16. [57]
    The application for leave to appeal is refused.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).

[2] Pickering v McArthur [2005] QCA 294 [3], cited with approval in Parr v Queensland Police Service [2021] QCA 216 [7].

[3]  The Act, s 52(1).

[4] Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 43(1).

[5]  Ibid, s 44(1).

[6]  Ibid, s 51(3).

Close

Editorial Notes

  • Published Case Name:

    Darestani & Anor v CSJJ Pty Ltd t/a Vanilla Rental & Anor

  • Shortened Case Name:

    Darestani v CSJJ Pty Ltd t/a Vanilla Rental

  • MNC:

    [2024] QCATA 129

  • Court:

    QCATA

  • Judge(s):

    Member Howe

  • Date:

    06 Dec 2024

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
Evans v Saarman [2013] QCATA 58
2 citations
Jump To
Cite 1 - [2013] QCATA 58
Cite 2 - [2013] QCATA 58
Parr v Queensland Police Service [2021] QCA 216
2 citations
Jump To
Cite 1 - [2021] QCA 216
Cite 2 - [2021] QCA 216
Pickering v McArthur [2005] QCA 294
2 citations
Jump To
Cite 1 - [2005] QCA 294
Cite 2 - [2005] QCA 294
Ruhle v Lormist Pty Ltd [2022] QCAT 100
2 citations
Jump To
Cite 1 - [2022] QCAT 100
Cite 2 - [2022] QCAT 100

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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