Wallace v Hull[2024] QCATA 70

QUEENSLAND CIVIL AND  ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The appellant was formerly a tenant of premises owned by the respondent, originally with her husband but more recently on her own.^[1]  She vacated the premises at the beginning of 2022.  On 1 July 2022 the respondent filed in the Tribunal a claim for $4,681 for unpaid rent, $860 for the cost of cleaning the premises at the end of the tenancy, $500 for the cost of cleaning up the yard, and $13,796 for damage to the property.^[2]  This claim came on for hearing on 9 September 2022 before a Member in Mackay.^[3]  An order was made that day that the appellant pay to the respondent $4,998.    
2. [2]
   The Member allowed $4,681 for unpaid rent, $860 for cleaning the premises at the end of the tenancy, and $500 for cleaning up the yard and removing rubbish, but set off the amount of the rental bond, $1,400, which had been paid to the respondent by the Residential Tenancy Authority (“the RTA”).  The claim for damage to the premises was rejected.  The Member also allowed the application fee of $357.  
3. [3]
   On 12 October 2022 the appellant filed in the Tribunal an Application for Leave to Appeal or Appeal, and at the same time filed an Application to stay the decision pending the determination of the substantive application.  The appellant required an extension of time to file the former application, which was granted by a Member on 18 January 2023.  The application for stay came before me to be dealt with on the papers, and on 20 March 2023 I dismissed that application.^[4]
4. [4]
   The proceeding at first instance was a minor civil dispute, so the appellant requires leave to appeal to the Appeal Tribunal, whatever the ground.^[5]  Leave is usually only granted where there is a reasonable argument that there is an error which should be corrected and an appeal is necessary to correct a substantial injustice to the applicant,^[6] although it may also be granted when the application raises an issue of general importance on which the decision of the Appeal Tribunal would be useful.^[7]  The requirement for leave to appeal reflects a legislative intention that ordinarily parties to a minor civil dispute will be confined to one judicial determination of the dispute.  

Grounds of Appeal

5. [5]
   The grounds of appeal set out in the Application for Leave to Appeal raised two issues:

   1. The respondent had failed to comply with the mandatory requirement of the Residential Tenancy and Rooming Accommodation Act 2008 (Qld) (“the Act”) that, before the application was filed in the Tribunal, it was necessary to complete the dispute resolution process with the RTA, and to attach to the application the notice of unresolved dispute from the RTA.
   2. The respondent’s claim for arrears of rent was outside the time frame of six months imposed by the Act s 419.  

6. [6]
   In the written submissions filed on 17 February 2023 the appellant also raised issues about whether the respondent had kept proper records of rent payments, as required by the Act s 88, s 89 and s 90, whether there was a failure on the part of the respondent to provide receipts for rent payments as required by the Act s 88, and a failure by him to provide copies of his rental records on request, whether there was a general inadequacy of evidence as to the rental arrears, and that the Member had allowed an amount for “lawn maintenance” which had not been included in the claim.  
7. [7]
   Attached to the submissions was a bundle of documents, some of which were not before the Member on the hearing.  When the Member granted the application for an extension of time for filing the Application for Leave to Appeal on 18 January 2023, there were also directions given that any party seeking to rely on additional evidence on the appeal had to apply to the Tribunal for leave to do so.  No such application was filed by the appellant.  I have therefore not acted on this additional evidence.  

Consideration

8. [8]
   Some of these matters can be dealt with quickly.  The complaint that the claim for cleaning the yard was not included in the respondent’s application involves reading what was said in the application too strictly, as if it were a pleading.  The application did refer (on p 8) to an unkempt yard, and this was treated as a part of the respondent’s claim which could be allowed,^[8] along with the cost of cleaning the interior of the premises, the conventional “bond clean”.  That it was not left clean by the appellant was not disputed by the appellant at the hearing.^[9]  There is no substance to this argument.

9. [9]
   The issues sought to be raised by the appellant in the submissions in writing about the adequacy of the respondent’s rental records related to the amount of the rent which had not been paid, and there was no issue raised about that amount at the hearing.  New issues of fact should not be raised for the first time on appeal.  The Member dealt with the question of unpaid rent on the basis that there was no dispute that there was unpaid rent owing, in the amount claimed by the respondent,^[10] and the appellant should not be allowed to dispute the amount of rent owing on appeal, when it was not disputed at the hearing.  I will not give leave to appeal to challenge the amount allowed for unpaid rent, insofar as it involves opening an argument about the details of what rent was paid and just what amount was outstanding, or any deficiencies in receipt giving or record keeping on the part of the respondent.  
10. [10]
    As to the requirement that non-urgent disputes be first referred to the RTA for conciliation, the Act s 416 requires that, in the case of an application which is not an “urgent application” for the purposes of the Act (which this was not), before applying to the Tribunal it was necessary for a person first to request that the RTA conciliate the dispute, and for the conciliation process to come to an end, in one of three ways, in effect without achieving an agreement.  
11. [11]
    There is on the file for the proceeding at first instance a copy of a letter from the RTA dated 2 June 2022 advising that a dispute resolution request was received from the respondent on 27 May 2022, and had been assessed as unsuitable for conciliation, one of the ways specified in the Act as terminating the conciliation process: s 416(1)(a)(i).  In those circumstances the requirements of s 416 had been satisfied by the respondent.  
12. [12]
    From the appearance of the documents on the file, the copy of the letter from the RTA was filed on the same day as the application, but was not attached to it, nor was the place on the form of application for the respondent to give the serial number for the conciliation process completed.  This issue was not raised by the appellant during the hearing.  The requirements of s 416 had in fact been complied with, which has been said to be a prerequisite for the jurisdiction of the Tribunal in a non-urgent matter,^[11] the Tribunal did not lack jurisdiction on this basis, and this is not an issue.  

13. [13]
    The form of application in this matter did say (on p 16) that the letter from the RTA had to be attached to the application, but (on p 6) it advised that a non-urgent application can only be filed if “you have a notice of unresolved dispute from” the RTA, and (on p 10) it spoke of a party not being able to apply to the Tribunal until the notice of unresolved dispute has been received from the RTA.  Neither the Act nor the QCAT Act requires the letter from the RTA to be attached to the application when it is filed, and the latter Act requires merely that the application be “in a form substantially complying with the rules.”^[12]  The Rules^[13] require the application to be in the approved form: s 7(1)(a).  Even if the approved form, properly interpreted, required the letter from the RTA to be attached, what was filed was still substantially in accordance with the Rules. The approved form cannot modify the requirements of the Act.^[14]  There is no substance to this ground.  

Time limit for unpaid rent claim

14. [14]
    The remaining issue is whether the requirement in s 419(3) that any claim be made within six months of the lessor becoming aware of the breach applied to the claim for unpaid rent.  The Act provides in s 419, relevantly:

    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 lessor or tenant under the residential tenancy agreement;

. . . 

2. The lessor or tenant, or provider or resident, may apply to a tribunal for an order about the breach.
3. The application must be made within 6 months after the lessor or tenant, or provider or resident, becomes aware of the breach.

15. [15]
    I also note that s 420 of the Act provides:

    1. If an application about a breach of a residential tenancy agreement or a rooming accommodation agreement is made to a tribunal, the tribunal may make any 1 or more of the following orders—

.  .  . 

(b)  an order for the payment of money; ^[15] 

16. [16]
    It has been said that a failure to pay rent as it becomes due is a breach of the tenancy agreement, and that s 419(3) is a mandatory, substantive provision, not a mere matter of procedure that the Tribunal may relax.^[16]  Form 18a, the General Tenancy Agreement under the Act, which was the relevant form of agreement, provides in Clause 8 that the tenant must pay the rent at the times stated in and in the way provided by the agreement, or a later agreement in writing between the parties.  Each time rent becomes payable, and the lessor (or the lessor’s agent) becomes aware that it has not been paid, the period of six months under that subsection begins to run in respect of that sum of unpaid rent.  
17. [17]
    In the present case, the appellant vacated the premises on or about 6 January 2022.^[17]  On 1 February 2022 an email to the appellant, from a person I take to have been assisting the respondent, alleged unpaid rent of $4,681 owing from 4 October 2021 to 6 January 2022.  This was the amount allowed as unpaid rent by the Member.  It is true that the initiating application was not filed in the Tribunal until 1 July 2022.  But the respondent made a request for dispute resolution which was received by the RTA on 27 May 2022, as appears from the copy letter from the RTA on the file.    
18. [18]
    Section 417 of the Act provides:

1. This section applies if—

1. an application about an issue (the dispute issue) may be made to a tribunal by—

1. the lessor or tenant under a residential tenancy agreement; or
2. a provider or resident under a rooming accommodation agreement; and

2. under a provision of this Act, the question whether the application has been made is relevant to an issue.

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.

19. [19]
    This provision is not a model of clear drafting, but I accept that its effect is that, for the purposes of the six month time limit in s 419(3), the clock stops when the dispute resolution request is made to the RTA.^[18]  The reference in the Note to that section must remove any doubt about that.  So the period of six months runs back from 27 May 2022, and s 419(3) permits a claim only for unpaid rent due under the agreement on or after 27 November 2021.  Under the tenancy agreement the rent was $350 each week, payable on the Monday of each week.  27 November 2021 was a Saturday, and there were six Mondays between then and the date the appellant vacated.  There is no express provision in the rental agreement for the rent to be paid in advance, so I take it that each payment related to the week preceding (or ending with) the Monday on which rent was payable.   There were three more days after the last Monday (3 January 2022) during which rent also accrued, so the amount of unpaid rent not excluded by s 419(3) was $2,250.  In respect of the balance of $2,431, s 419(3) has the effect of preventing an application from being made to the Tribunal under s 419(2) for an order about the breaches of the provision of the residential tenancy agreement that the tenant pay rent in accordance with the agreement, that is, Clause 8.  As I have said, this has been interpreted as a matter which goes to the jurisdiction of the Tribunal, and I will proceed on the basis that that interpretation is correct.  It follows that the Tribunal had no jurisdiction under the Act Chapter 6 Part 2 to order the appellant to pay that part of the outstanding unpaid rent to the respondent.^[19]  
20. [20]
    Although this issue was not raised at first instance before the Tribunal, and in effect the order for payment of money, so far as it related to unpaid rent, was not contested by the appellant at that time, because this issue goes to jurisdiction that does not matter.  The parties to a proceeding before the Tribunal cannot, even by consent, confer on the Tribunal a jurisdiction it does not have.  This is a general principle in respect of inferior courts and tribunals,^[20] but it also follows from the terms of the QCAT Act s 11 and the definitions of “minor civil dispute” and “tenancy matter” in Schedule 3.  It is therefore open for the appellant to take this point on appeal.  Given that it goes to the jurisdiction of the Tribunal in making the decision, it is a matter which, on the face of it, justifies leave to appeal, and an adjustment to the amount payable by the appellant.  

21. [21]
    However, there is more to it than that.  The Act is not a Code for dealing with residential tenancies.  On the contrary, the Act s 4 specifically preserves the rights and remedies of persons in respect of residential tenancies, except where they are inconsistent with the provisions of the Act.  The mere provision by the Act of a jurisdiction in the Tribunal to hear and decide certain disputes, subject to certain requirements, does not mean that there is any relevant inconsistency with a right to pursue a remedy in respect of the same matter in another way, even if there are differences in how that remedy is pursued.  There is no provision in the Act which makes the Act the only vehicle for landlord and tenant disputes,^[21] nor any which gives the Tribunal exclusive jurisdiction in such disputes.^[22]  So proceedings can be brought in the ordinary courts to enforce rights arising under the general law, by such remedies as those courts provide.^[23]  An action to recover unpaid rent can be brought in the Magistrates Courts.  Indeed, if the amount of unpaid rent which became payable prior to 27 November 2021 were deducted from the order to pay money in this case, it would be open to the respondent to sue in a court to recover that balance.  
22. [22]
    Section 419(3) does not operate as a special limitation period for any claim for unpaid rent; it operates as a restriction on the jurisdiction of the Tribunal to deal with a dispute in respect of a breach of a tenancy agreement.  Subsection (3) is worded as a limitation on an application to the Tribunal under subsection (2).  In the courts, the ability to recover unpaid rent extends back to the period fixed by the Limitation of Actions Act 1974 (Qld) s 25.  This is not inconsistent with s 419(3), because that subsection does not purport to set up a different limitation period for all purposes.^[24]   

Cause of action in debt

23. [23]
    There is a further complication: a person owed a specific sum of money payable under a contract in respect of a consideration which is executed, that is, which has been provided, has an action for debt as an alternative to an action for breach of contract.  This was confirmed by the decision of the High Court in Young v Queensland Trustees Ltd (1956) 99 CLR 568 (“Young’s case”), which is also authority for the proposition that in such an action it is the defendant who has the onus of proving payment of the debt (if that is relied on), not the plaintiff who has the onus of proving that the debt has not been paid, as is the case if relying on a breach of the covenant to pay.^[25]  

24. [24]
    The continuing authority of Young’s case is shown by the reference to it as authoritative by Gageler J (as his Honour then was) in Mann v Paterson Constructions Pty Ltd [2019] HCA 32, 267 CLR 560 at [62]–[64], a building case where it was said that, where money is owing under a building contract for work done under the contract it is recoverable by the builder in debt, so there is no need for a claim in respect of that work in quantum meruit.^[26]  Young’s case was also applied by the Court of Appeal in Victoria in Tran v Hoang [2022] VSCA 194 at [75]–[79],^[27] and the principle was discussed briefly by Jackson J in Harro Group  Pty Ltd v Aspire Pty Ltd [2019] QSC 189 at [18],^[28] where he referred to the difference in the onus of proof.  That difference was applied in Frinty v Landmax Developments [2010] NSWSC 734 at [13].^[29]  
25. [25]
    There is no specific provision in the Act for a cause of action for debt to be the basis of a claim to the Tribunal under the Act,^[30] but if a claim can be brought in the Tribunal other than under the Act, so long as the basis of jurisdiction is not inconsistent with the Act, it is still available.  There is nothing in the Act that I have been able to identify which is inconsistent with a lessor’s bringing a claim for debt in the Tribunal to recover unpaid rent, just as such a claim can be brought in a court.^[31]  By the QCAT Act s 11 the Tribunal has jurisdiction to hear and decide a minor civil dispute, and by s 12 the Tribunal can exercise that jurisdiction if a relevant person has, under the QCAT Act, applied to the Tribunal to deal with the dispute.  By Schedule 3 a “minor civil dispute” includes, apart from a tenancy matter, a “claim to recover a debt … of up to the prescribed amount”.^[32]  This is subject to the qualification in part 2 of the definition:  

However, if an enabling Act confers jurisdiction on the tribunal to deal with a claim (however called) within the meaning of paragraph 1(a), the claim is not a minor civil dispute unless the enabling Act expressly states it is a minor civil dispute.  

26. [26]
    This will not apply to a claim in debt as a minor civil dispute, because the Act does not confer jurisdiction on the Tribunal for such a claim.  Rather, the jurisdiction for such a claim comes from the QCAT Act itself.  Even if, contrary to my view, the Act is characterised as an enabling Act which confers jurisdiction on the Tribunal to deal with a claim in debt for unpaid rent under s 419, the limitation to that jurisdiction under s 419(3) means that jurisdiction is not conferred by the Act on a claim to recover unpaid rent beyond the six month limit.  Hence a claim for unpaid rent rising outside the six month period is not a claim for which jurisdiction is conferred by the Act, and is not excluded from paragraph (a) of the definition of “minor civil dispute” by this provision.  It remains a minor civil dispute, and the respondent remains a “relevant person” for the purposes of the QCAT Act s 12.^[33]    

27. [27]
    The application made by the respondent, although in the form for a “tenancy dispute” was still an application made under the QCAT Act to deal with the dispute, so the Tribunal had jurisdiction to hear and decide the claim for unpaid rent due in the period prior to 27 November 2021, as a minor civil dispute.  The fact that the application was made using the form for a “minor civil dispute – tenancy matter” is not fatal to the exercise of that jurisdiction; it was still a minor civil dispute, it still referred to the relevant issue, a claim for unpaid rent extending beyond the period in respect of which jurisdiction was conferred under the Act s 419, and there is no form for an application to claim relief in respect to two matters, each of which is a minor civil dispute.^[34]  
28. [28]
    Use of the wrong form is not fatal in the Tribunal, at least so long as the application substantially complies with the rules.^[35]  I consider that the application filed by the respondent satisfied the requirements of s 33(2).  The form referred to the Act s 419 (and to s 429^[36]), but there is no provision of the QCAT Act or the Rules which confines the applicant to the basis of claim identified in the application form.^[37]  There are procedural differences between a tenancy matter and a a minor debt claim.^[38]  The application for the latter is to be served by the applicant rather than by the Tribunal itself; but the appellant clearly received the application, and the informal service could have been validated under Rule 41.  A response is required for a minor debt claim under Rule 43 and Rule 45, but there was no attempt to obtain a decision by default, and it can scarcely prejudice the appellant for that provision to be waived.  
29. [29]
    The procedures of the Tribunal are sufficiently flexible for the procedural requirements under the QCAT Act and Rules to accommodate the claim for unpaid rent as a minor civil debt claim.^[39]  None of these are prerequisites to the jurisdiction in a minor debt claim.  In a matter which came before me on a later hearing, the appellant had filed an application in the form appropriate to invoke the review jurisdiction of the Tribunal under the QCAT Act Chapter 2 Part 1 Division 3 to challenge a decision of the Information Commissioner under the Information Privacy Act 2009 (Qld) s 132, which provides for an appeal to the Appeal Tribunal on a question of law only.^[40]  In that matter the then President of the Tribunal had at a directions hearing directed that the matter proceed as such an appeal, illustrating the procedural flexibility of the Tribunal.^[41]  

30. [30]
    In the present matter, therefore, in my opinion the Tribunal had original jurisdiction to hear and decide both the claim for unpaid rent accruing under the tenancy agreement after 27 November 2021 and the claim for unpaid rent accruing prior to that date.  It is true that, at the hearing, the Member appears to have assumed that the only claim was for breach of the provision in the agreement, but in circumstances where the claim was admitted by the appellant, I expect this issue was not given close attention.  The Member was certainly aware of the relevance of the six month limit in the Act s 419(3), as she applied it elsewhere.  But whatever jurisdiction she thought she was exercising, there was in fact no absence of jurisdiction to make the order.  It follows that in my opinion the appellant cannot succeed on this ground either.  

Prior decisions

31. [31]
    Treating a claim for unpaid rent in this way is not a new idea.  In Raymond v Doidge [2012] QCAT 163, Adjudicator Gordon (as he then was), dealing with a matter which had been started in the Magistrates Court and transferred to the Tribunal, upheld as a minor debt claim a claim for unpaid money which could not be brought under s 419 because of the limits to the jurisdiction of the Tribunal under that section.  Reasons for this conclusion were given, and he illustrated how the procedural difficulties in the QCAT Act and Rules could be overcome.  Later that year, however, in Big4 Brisbane Northside Caravan Village v Schleibs [2012] QCAT 277 (“Big4”), Wilson J, the then President of the Tribunal, disagreed with that approach, and said at [42] that: “It is compelling that the RTRA Act is intended to be prescriptive and allembracing in governing the procedure for determination of disputes arising under residential tenancies.”  Whether his Honour was intending to say that it followed that the Tribunal had exclusive jurisdiction to deal with residential tenancy disputes, or whether he was saying that, when the Act provides a particular mechanism for dealing with a certain type of claim, no other mechanism can be used, is not clear.  
32. [32]
    The matter was considered again by the Tribunal in Amos v Fett [2016] QCATA 120 by Carmody J, who held that the Act did not exclude the jurisdiction of the ordinary courts to deal with a dispute in relation to a residential tenancy, and that when that occurred the limitations on the exercise of the Tribunal’s jurisdiction in s 419, for prior conciliation for non-urgent matters and the six month time limit, did not apply.^[42]  His Honour gave detailed reasons for that conclusion, set out at [29] to [42].  They are too long to quote, but I respectfully agree with them, as I do with the essential reasoning in Raymond v Doidge (supra).  Carmody J said at [38] that the remarks quoted earlier from Big4 should be limited to the context of that decision, where the question involved the jurisdiction of the Tribunal in a proceeding under the Act.  
33. [33]
    In Big4 the applicant sought possession of moveable dwelling premises, a matter for which QCAT does have exclusive jurisdiction,^[43] and which can be brought as an urgent application, but also sought unpaid rent and payments for electricity and gas.  The issue was whether a claim for relief available under the Act – indeed under s 419 – on a non-urgent application could be pursued in a proceeding properly commenced as an urgent application, and his Honour held it could not: [32].  I would not suggest that that conclusion was in error.^[44]  His Honour went on to consider whether the money claim could be treated as a debt claim under the definition of minor civil dispute, as said in Raymond v Doidge (supra), and held that it could not.^[45]  

34. [34]
    His Honour referred to a number of section of the Act which were relevant to claims under it, including s 83 which provides how rent is to be paid (not that rent is to be paid, although it assumes that rent will be payable, as do other sections) and s 280 which permits a notice to remedy breach to be given if rent is unpaid “in breach of the agreement”, which again assumes rather than provides that a failure to pay rent will be a breach of the agreement.  He said at [40] that “claims for arrears of rent, however they might be categorised under s 420 of the RTRA Act, are matters to which the RTRA Act directly addresses itself,” before making the statement quoted earlier.  This was said to be because procedures laid down by the Act superseded those in the QCAT Act, under s 6(7) and s 7(2) of the latter Act.  Hence the only procedure which could be followed to recover unpaid rent (and other monies owing under the agreement) was that laid down in the Act.  
35. [35]
    I consider that there are problems with this reasoning, in that it does not reflect what the Act actually says.  There is a difference between providing a mechanism for doing something, and requiring that thing to be done in that way.  For money claims, I consider that the Act does the former, but not the latter.  Nowhere does it say that claims for money payable under the agreement can be pursued only in a specified way.  The relevant provisions, such as s 419(1), are expressed in permissive terms, and it is only the limitations on the jurisdiction so conferred that are expressed in mandatory terms, which just limit that jurisdiction.  Not only does the Act not make that jurisdiction exclusive, the Act s 4 specifically preserves other rights and remedies.  In Big4 his Honour did not refer to s 4 at all, or s 353(2), which does provide expressly some exclusive jurisdiction for the Tribunal, for proceedings for a lessor to recover possession from a tenant.  This section shows that, when there was a legislative intention to provide an exclusive jurisdiction in the Tribunal, that was done clearly and expressly.  This provision would not have been necessary if his Honour’s analysis were correct.  In my opinion, it was not correct, and I would not follow it.  

Conclusion

36. [36]
    The application for leave to appeal raises a question of general importance, which would justify the grant of leave to appeal.  My concern however is that I have not had the assistance in this matter of submissions on either side of the question by a lawyer, as both parties were self-represented.  It is possible therefore that my analysis has overlooked some important point or decision to which my attention could have been drawn if I had had the benefit of submissions by lawyers for the parties.  All I can say really is that, as presently advised, I conclude that the appellant does not in fact have a good ground for appeal on this point either. In those circumstances, I will not grant leave to appeal, and the application for leave to appeal is refused.  There is no indication that the respondent has incurred any legal costs in relation to the application, and I will make no order as to costs.