Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277

Big4 Brisbane Northside Caravan Village (Applicant)

ORDERS MADE: 1. Answer the question on reference in the negative.

MINOR CIVIL DISPUTE - RESIDENTIAL TENANCY - QUESTION OF LAW - STATUTORY INTERPRETATION - JURISDICTION - where lessor made an "urgent" application for a termination order for failure to leave under s 415 of the RTRA Act - where lessor demonstrated conclusively that there were monies owing by tenant as at date of termination order - whether Tribunal when dealing with "urgent" applications under the RTRA Act can also determine "non-urgent" claims - whether Tribunal has jurisdiction to release bond held by the Residential Tenancy Authority to the lessor or the lessor's agent in complete or partial satisfaction of an order of that kind

Acts Interpretation Act 1954, s 14A

Queensland Civil and Administrative Tribunal Act 2009, ss 6, 7, 28, 117, Schedule 3

Residential Tenancies and Rooming Accommodation Act 2008, ss 5, 83, 280, 402, 414, 415, 416, 420

Residential Tenancies and Rooming Accommodation Bill 2008, Part 2 Division 2

Adams v Scowcroft [2012] QCATA 25, cited

Lowe v Aspley [2010] QCATA 59, cited

Raymond v Doidge [2012] QCAT 163, cited

Referral of a question of law from the presiding Member of the Tribunal to the President under s 117 of the Queensland Civil and Administrative Tribunal Act 2009 ("QCAT Act").

**[1] In the period between 1 July 2010 and 30 June 2011 QCAT received over 13,400 applications in its Minor Civil Disputes jurisdiction relating to the Residential Tenancies and Rooming Accommodation Act 2008 ("RTRA Act").

[2] A question of law has arisen about the proper interpretation of the RTRA Act in circumstances that commonly arise in the Tribunal. The referral is made under s 117 of the QCAT Act by the presiding Member, a QCAT Adjudicator.

[3] The learned Adjudicator was asked to hear and determine an application by BIG4, a lessor, concerning a residential tenancy agreement over moveable dwelling premises at Aspley, in which Mr Schliebs had been the tenant. Under the agreement, the rent was $380.00 per week and the tenant was also obliged to pay for electricity, and gas.

[4] BIG4 alleged that Mr Schliebs failed to make rent payments consistently, and fell into arrears. On 6 March 2012, BIG4 served a notice under the RTRA Act, namely a Form 11 (notice to remedy breach) and, when Mr Schliebs failed to pay off the arrears, on 2 April 2012 it served a Form 12 (notice to leave).

[5] When Mr Schliebs did not vacate the premises on the handover date prescribed in the Form 12, an application was made to QCAT for termination of the tenancy on the grounds of his failure to leave.

[6] The application was brought as an "urgent application" - a term that has a particular meaning under s 415 of the RTRA Act.

[7] At the hearing of that application on 2 May 2012, the learned Adjudicator was satisfied that the tenant (who did not attend) had been served with the proceedings and with notice of the hearing date. BIG4's representative was unable to say whether or not he had, in fact, already left the premises. In any event, a termination order was made by the learned Adjudicator to take effect from the following day, 3 May.

[8] In its application to QCAT (in QCAT Form 2), BIG4 also made a claim for "expenses, lost income and/or a refund of rental bond" in the sum of $2,583.73 (comprised of claims for rent arrears of $2,368.57, electricity of $111.52 and gas of $103.64).

[9] At the hearing, BIG4 proved to the satisfaction of the Adjudicator that, by 2 May, increased sums for arrears, electricity and gas were owed, and the amount sought was $3,897.94 plus BIG4's QCAT filing fee of $95.00.

[10] Chapter 6 of the RTRA Act, in which s 415 appears, allows for certain kinds of application to be brought to QCAT as urgent applications. They include an application for termination of the tenancy on the ground of failure to leave.

[11] They do not, however, include claims for arrears of rent and the like which, under s 416, must first be submitted to a conciliation process provided by the Residential Tenancies Authority ("RTA"), a body created under the RTRA Act.

[12] The question of law posed by the learned Adjudicator under s 117 of the QCAT Act is this: in a case where the Tribunal makes a termination order on a urgent application where there has been no conciliation by the RTA and, at the hearing of the urgent application, the lessor demonstrates conclusively that there are monies owing by the tenant as at the date of termination (such as rent arrears, and monies owing for water, power or utilities), does the Tribunal have jurisdiction at that hearing to make an order that the tenant pay the lessor (or the lessor's agent) those amounts; and, if the amounts owing equal or exceed the amount of the bond held by the RTA, does the Tribunal have jurisdiction at that hearing to release the bond in full to the lessor or lessor's agent in complete or partial satisfaction of an order of that kind.

[13] In short, the question is whether the Tribunal, when dealing with "urgent" applications (which are not compelled to go through the RTA conciliation process) can also determine and dispose of "non-urgent" claims which have not undergone that process.

[14] Chapter 6 of the RTRA Act is headed "Dispute Resolution". Part 1 applies if there is "...an issue in dispute relating to a residential tenancy agreement". Its provisions go on to provide for the appointment of conciliators, to describe their functions, and then to dictate the manner in which the conciliation process will be begun and conducted.

[15] Part 2 is headed "Application to tribunals"; its first section, s 414, states that it applies to applications to QCAT by lessors and tenants under residential tenancy agreements.

[16] Section 415 of the RTRA Act provides that an application to QCAT is an urgent application if it is an application for a termination order made, among other things, because of a failure to leave. The section goes on to define a number of other kinds of application under the RTRA Act, which also qualify as urgent applications. They include applications for an order to restrain a person from causing damage or injury; applications that arise because of an emergency, or for health or safety reasons; and, applications about such things as goods left upon premises.

[17] Under the immediately following section, s 416(1) of the RTRA Act, a lessor or tenant under a residential tenancy agreement may apply to QCAT only if the applicant has first made a dispute resolution request about the issue. Under s 416(2), however, that condition does not apply or attach to an urgent application.

[18] It is accepted in the present case that the lessor had not made a dispute resolution request[1] in respect of its application for a termination order because of Mr Schliebs' failure to leave, but, also, that it was not required to do so because that application was an urgent application and, hence, excused from the conciliation process and the need to make a dispute resolution request[2].

[19] The ancillary claims for rent, etc, did not however qualify as urgent applications under s 415 of the RTRA Act. It follows that they were caught by s 416(1).

[20] The learned Adjudicator acknowledged and accepted that, in those circumstances, the RTRA Act presented a bar to him dealing with those claims unless some other course was available.

[21] As posed, the real question is whether the learned Adjudicator might as an alternative and as a means of avoiding the operation of s 416 proceed to hear and determine those ancillary claims on another basis - that they were debts or liquidated amounts, and amenable to adjudication within QCAT's minor civil disputes jurisdiction.

[22] In Queensland, legislation is to be interpreted in a way that best achieves the purposes of each particular Act.[3]

[23] It has previously been observed, in QCAT, that the RTRA Act is prescriptive in its requirements about issuing notices, and commencing proceedings.[4]

[24] The RTRA Act clearly distinguishes between urgent applications, and other applications. Unless an application qualifies as urgent, the applicant can only apply to QCAT if it has first made a dispute resolution request in the manner set out in s 402 of the RTRA Act. That is apparent from the clear prohibition against an application to QCAT unless that request has been made. Section 416(1) of the RTRA Act sets out that the lessor or tenant:

"...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..."[5]

[25] Explanatory Notes associated with legislation in Queensland may be consulted if the meaning of a provision in a statute is unclear. While this is not a case in which, in my view, any ambiguity or obscurity arises around the proper construction of any of the provisions in Part 2 of Chapter 6 of the RTRA Act, in the Explanatory Note for the Residential Tenancies and Rooming Accommodation Bill, it is said that the section:

"...requires the parties to first apply for dispute resolution before they can apply to a tribunal about an issue, except if it is an urgent application as defined..."[6]

[26] It is possible to discern, behind the learned Adjudicator's reference, a proper concern that applicants might, in the circumstances at hand, be compelled to bring two applications, involving unnecessary duplication: first, an urgent application for a termination order (which did not need to undergo the RTA conciliation process); and, separately, an application for the arrears of rent, etc (which did require the application of the RTA reconciliation process); or, to attend for separate hearings if the application combines the two.

[27] The result would be that the Tribunal (and parties) would be obliged to submit to two discrete adjudications in circumstances where commonsense and practicality might suggest that only one should be necessary.

[28] Those concerns are appropriate in light of the legislature's announced object, set out in s 3 of QCAT Act, that the Tribunal should deal with matters in a way that is accessible, fair, just, economical, informal and quick; and, the fact that the Tribunal's functions, expressed in s 4(c) of the QCAT Act, include an obligation to ensure that proceedings are conducted in an informal way that minimises cost to parties, and is as quick as is consistent with achieving justice.

[29] These statutory exhortations towards efficiency, expedition and informality are to operate and be construed, however, in a way that also properly acknowledges that the RTRA Act is an "enabling Act" (for the purposes of the QCAT Act)[7], and itself contains provisions governing the Tribunal's functions when it is dealing with matters involving residential tenancies[8].

[30] Under ss 6 and 7 of the QCAT Act provisions in enabling Acts about applications, and the Tribunal's functions, prevail over the provisions of the QCAT Act.[9]

[31] Here the enabling act, the RTRA Act, clearly prescribes the procedures to be followed and, to the extent of any inconsistency between that procedure and the provisions of the QCAT Act mentioned above, the enabling act prevails.

[32] It follows that, while the efforts of the learned Adjudicator were creditable in the sense they accorded with the general provisions of the QCAT Act encouraging speed and informality, those provisions did not override the requirements of the RTRA Act and the non-urgent elements of the claim could not be heard and determined until s 416 of the RTRA Act had been complied with.

[33] I appreciate this adds an additional burden to applicants seeking both urgent, and non-urgent, remedies in RTRA Act matters.

[34] I note that the question whether the procedural difficulties thrown up by s 416(1) can be circumvented by dealing with the claim for rent and utilities as though it was a claim for a debt or liquidated amount (and, therefore, as a "minor civil dispute", within that QCAT jurisdiction) was carefully and thoughtfully addressed by two QCAT Adjudicators in Raymond v Doidge[10].

[35] The circumstances were similar to those arising here. The learned Adjudicators were dealing with an urgent application but, again, one that was also accompanied by a claim for rental arrears. In their decision, they considered that the claim for rent arrears might properly be regarded as a "minor civil dispute" as that term is defined in Schedule 3 of the QCAT Act. They properly acknowledged that the claim was also a "tenancy matter" under the RTRA Act, but concluded that those descriptions were not mutually exclusive.

[36] Noting that s 28 of the QCAT Act provides that the Tribunal should act with as little formality and technicality, and as much speed as the Act and rules permit, the learned Adjudicators were encouraged to waive provisions about different forms for tenancy matters under the RTRA Act and minor debt claims, and to proceed to determine the claim for rent arrears as a minor debt even though it had not gone through the RTA conciliation process.

[37] Under s 28(1) of the QCAT Act, the "procedure for a proceeding is at the discretion of the tribunal" but, as the provision itself provides, is also subject to the QCAT Act "and an enabling Act".

[38] Under s 5 of the RTRA Act, the main objects of that Act are to state the rights and obligations of tenants, lessors and agents for residential tenancies and, under s 5(2), those objects are to be mainly achieved by providing for the resolution of disputes about residential tenancy agreements and rooming accommodation agreements.

[39] As previously observed, Chapter 6 of the RTRA Act applies to applications to the Tribunal by lessors and tenants under residential tenancy agency agreements.[11] The RTRA Act (the relevant enabling Act) provides that the tenant must pay rent under a residential tenancy agreement[12]; that the non-payment of rent constitutes a breach of the agreement[13]; and, that the lessor or tenant may apply to the Tribunal for an order about that breach[14]. Under s 420 of the RTRA Act, claims may be made for the payment of money, compensation, or:

"...payment of all or part of the rent under the agreement until - ...an application for compensation has been decided."

[40] The RTRA Act uses these various terms - "rent", "breach, and "compensation" - in a way that lacks precision, but it is compelling 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.

[41] That conclusion is supported by s 420 itself, which gives the Tribunal wide powers to make different kinds of money orders - for the payment of money, for compensation, or for payment of part of the rent.

[42] Again, it is compelling that the RTRA Act is intended to be prescriptive and all-embracing in governing the procedure for determination of disputes arising under residential tenancies. It is, as discussed earlier, an enabling Act and its provisions and procedures will, if different from those to be applied by the Tribunal under the QCAT Act, prevail.

[43] Once that is appreciated, it is inescapable that the procedure to be followed must accord with the RTRA Act. While it is true, as the learned Adjudicators pointed out in Raymond v Doidge[15], that there is little practical difference between some non-urgent RTRA Act claims and those commonly arising in QCAT's minor civil disputes jurisdiction, the similarity is not material; the prevailing consideration is whether the RTRA Act, as an enabling Act, contains provisions about the procedures to be followed and whether those procedures are mandatory. In my view, for the reasons explored earlier, that is the case.**

[1] A process described in s 402 of the Residential Tenancies and Rooming Accommodation Act 2008.

[2] Residential Tenancies and Rooming Accommodation Act 2008, s 416(2).

[3] Acts Interpretation Act 1954, s 14A.

[4] Lowe v Aspley [2010] QCATA 59; Adams v Scowcroft [2012] QCATA 25.

[6] Residential Tenancies and Rooming Accommodation Bill 2008, Part 2 Division 2.

[7] Queensland Civil and Administrative Tribunal Act 2009, s 6(2).

[8] Queensland Civil and Administrative Tribunal Act 2009, s 7.

[9] Queensland Civil and Administrative Tribunal Act 2009, ss 6(7), 7(1) and (2).

[10] [2012] QCAT 163.

[11] Residential Tenancies and Rooming Accommodation Act 2008, s 414.

[12] Residential Tenancies and Rooming Accommodation Act 2008, s 83.

[13] Residential Tenancies and Rooming Accommodation Act 2008, s 280.

[14] Residential Tenancies and Rooming Accommodation Act 2008, s 420.

[15] [2012] QCAT 163.