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[2012] QCAT 163
Queensland Civil and Administrative Tribunal
2012-04-12
Original judgment source is linked above.
Raymond v Doidge [2012] QCAT 163
Minor Civil Dispute - Residential tenancy - Breach of agreement by tenant - Rent arrears - Defect in proceedings - Claim for rent arrears regarded as a minor debt claim - Arrears time-barred - Arrears started 10 years before application made - Sporadic payments never clearing arrears - Running account of rent arrears - Arrears at hearing representing more than 6 months' rent - Time limit for bringing application - Whether there is power to enlarge that time - Exercise of that discretion - Correct order for rent arrears
Delahoy and Grevell v Wuiske & Wuiske [2006] QDC 276, applied
Clayton's Case (Devayne v Noble) [1815] EngR 77; (1816) 1 Mer 572, applied
Beachquest Pty Ltd v Interstate Mortgage And Investments Pty Ltd & Ors [2001] QSC 512, applied
Macdav Pty Ltd v Alliswell Pty Ltd [2001] VCAT 2436, applied
Quadrascan Graphics Pty Ltd v Crosfield Electronics Anz Pty Ltd & anor [1995] FCA 1248, applied
Redondo Property Investments Pty Ltd v Bennett & Anor [2011] QCAT 282, distinguished
Ryan v Cornwall [2010] QCAT 212, not followed McLachlan v Real Tenants - Real Property Management [2011] QCAT 665 not followed Aurisch v Millsons Pty Ltd & Ors [2011] QCAT 245, followed
Reynolds v Aluma-Lite Products Pty Ltd (No 2) [2010] FCA 914, applied
Commonwealth v Mewett [1997] HCA 29, considered
Adams v Scowcroft [2012] QCATA 25 considered
[1] The panel consisted of Adjudicator Jeremy Gordon and myself. I have asked Jeremy Gordon to give the reasons of the Tribunal.
[2] In these reasons references to the "Act" are to the Residential Tenancies and Rooming Accommodation Act 2008.
[3] The applicant landlord Richard Raymond filed a claim on 25 November 2011 seeking rent arrears of $10,000 from his tenant Anthony Doidge in respect of the residential tenancy of 15 Marang Court, Tanah Merah, QLD 4128 ("the tenancy").
[4] The tenancy started on 12 May 2000 with a term of 6 months, but the tenancy continued after the end of that term as a periodic tenancy under section 70 of the Act.
[5] On 8 November 2011 the tenant gave vacant possession of the premises to the landlord. At that time his arrears were some $14,351. The landlord recovered the rental bond of $700 from the Residential Tenancies Authority ("the RTA"), and has limited his claim in these proceedings to $10,000.
[6] The claim was made as an "urgent" application on Form 2 ("Application for minor civil dispute - residential tenancy dispute"), and the landlord ticked the box on that form adjacent to these words:
"abandonment - compensation on abandonment (s359)".
[7] Under section 359 of the Act a landlord may apply for compensation for losses incurred "by" a tenant's abandonment, following the service of a notice terminating the tenancy (an abandonment termination notice) under section 355. An alternative procedure for the landlord is to apply under section 357 for a declaration that the premises were abandoned by the tenant. Upon making such an order, under section 360 the Tribunal may make a compensation order in the landlord's favour for losses incurred "by the abandonment".
[8] Strictly, the rent arrears cannot be regarded as losses incurred by the tenant's abandonment within the terms of section 359 or 360. The claim in respect of rent arrears is more properly regarded as a claim in respect of a breach of the agreement under section 419 of the Act and this is the type of application the landlord should have made.
[9] A claim under section 359 or 360 is an "urgent" claim, and can be brought without reference to the RTA. A claim under section 419 however, which is what the landlord should have made, is a "non-urgent" claim. The difference is fundamental: the Tribunal has no jurisdiction to hear non-urgent matters unless the RTA's dispute resolution process has been exhausted. This is under section 416. In this case, whilst the landlord has been to the RTA for return of the bond, he has not been to the RTA with a dispute resolution request about the rent arrears.
[10] It follows that the landlord's claim is defective. The requirements of section 416 are prescriptive and cannot be waived by the Tribunal[1].
[11] Section 429 of the Act permits the Tribunal to deal with any dispute between the landlord and the tenant on application. Again, such an application would be "non-urgent" and would require a reference to the RTA before it could be heard.
[12] It follows that unless the Tribunal can properly regard itself as having jurisdiction to hear the rent arrears claim in some other way, it cannot be heard. That would be very unfortunate bearing in mind:
(a) both parties attended the hearing in the expectation that the rent arrears claim would be dealt with;
(b) the tenant does not dispute the arrears, the only issue being how much time he should be given to pay them;
(c) the tenant has left the premises so the arrears are finite;
(d) the landlord's application for losses caused by the abandonment is properly made and is properly before the Tribunal as an urgent application, albeit the landlord is not seeking any compensation under that head.
[13] Another point is that the landlord may have been misled by the printed words in the claim form. The words adjacent to the box he ticked "abandonment - compensation on abandonment (s359)" suggest that they cover rent arrears existing upon abandonment, when as noted above they do not. And since the s 359 box is in the "urgent" section of the form, the landlord would naturally suppose that the application was "urgent" and, as explained on the form there was no need to refer first to the RTA. I would point out that the landlord is an individual handling this claim himself.
[14] This problem is compounded by the fact that there is no box on the form for a claim for rent arrears. Although Part E of the form permits a claim for rent arrears to be made, it is not clear from Part E that such a claim should be regarded as "non-urgent" and requires a reference to the RTA in order to be a valid claim.
[15] It seems to me that the answer to this conundrum is in the general jurisdiction of the Tribunal. A claim for rent arrears is properly regarded as a "minor civil dispute" as defined in Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 ("the QCAT Act"). It comes within two of the descriptions of claim listed in the definition in that schedule. It is a "tenancy matter" and therefore covered by the Residential Tenancies and Rooming Accommodation Act 2008, but it is also "a claim to recover a debt or liquidated demand of money" (a "minor debt claim"). It seems to me that these descriptions of claims are not mutually exclusive. It is possible for a claim to come under more than one description. I say this because it would have been very easy for the legislature to provide that a claim can only come under one description, but no such provision was made.
[16] By section 11 of the QCAT Act the Tribunal has jurisdiction to hear minor civil disputes and so it would have jurisdiction to hear the rent arrears claim as a minor debt claim provided it has been commenced properly.
[17] The question arises whether the rent arrears claim in this case has been commenced property as a minor debt claim. Section 33 of the QCAT Act requires a claim to be made in a form substantially complying with the rules. Rule 7 of the Queensland Civil and Administrative Tribunal Rules 2009 ("the QCAT rules") requires a claim to be made in "the approved form". Section 241 of the QCAT Act gives authority to the rules committee to approve such forms. Form 3 has been approved for minor debt claims. There is a substantial difference however, between Form 3 and Form 2 which the landlord used here. The difference is that Form 3 provides for a response to be filed by a respondent, and it warns the respondent that a default decision may be made if this is not done. Form 3 claims also have to be served on the respondent personally. However, under section 61 of the QCAT Act the Tribunal may waive compliance with the requirement to use Form 3 to bring the rent arrears claim and provide that it may be brought on Form 2 instead, and in the circumstances I shall so order. I order that the Applicant's claim for rent arrears proceed as a minor debt claim.
[18] In making these orders I am mindful that the Tribunal is required by section 13(1) of the QCAT Act to make orders that it considers fair and equitable to the parties to the proceeding in order to resolve their dispute. And further, that in conducting proceedings the Tribunal is required by section 28(2) of the QCAT Act to act fairly and according to the substantial merits of the case, and by section 28(3) must act with as little formality and technicality as the Act and rules permit. This is of course within the bounds of the rules of natural justice and general fairness to all parties. In this respect, if this matter is not dealt with now, the landlord could simply lodge another application for his rent arrears and then come back on some future hearing - a process which hardly seems proportionate or sensible. I bear in mind here that one of the objects of the QCAT Act is to have the Tribunal deal with matters in a way which is fair, just, economical, informal and quick [section 3(b)].
[19] I am also mindful of section 61(3) of the QCAT Act which precludes a waiver of compliance with a procedural requirement if it would cause prejudice or detriment which cannot be compensated by an appropriate order for costs or damages. It might be said that there is a detriment to the tenant if I waive the procedural requirement because if I do not do so, the claim ought to be struck out as an abuse of process. The landlord would then have to start again, and in this particular case bearing in mind the arrears go back many years, the landlord's legitimate claim would be reduced because of the 6 months' time limit for bringing such claims. However in my opinion there is no detriment to the tenant if I waive the procedural requirement. This is because of the following facts: the landlord's claim of rent arrears is not a nullity, it is not currently struck out, it was accepted by the Tribunal and is therefore before the Tribunal, and the Tribunal has jurisdiction to hear it. Any order of the Tribunal waiving defects in the manner in which the claim was made does not alter these facts.
[20] I am not saying that it is permissible for the Tribunal to make orders enabling every landlord's claim to be heard when the landlord has not exhausted the RTA's dispute resolution procedure as required by section 416 of the Act. Typical landlord claims might be compensation for breaking the lease, damage to property, and failure to leave the property in a condition required by the tenancy agreement. Unlike a claim for rent arrears, these are not debt claims; instead, they are damages claims and there is a clear distinction between the two. Accordingly the Tribunal would only have jurisdiction to hear them because they come within the category of minor civil dispute described as a "tenancy matter". Therefore the procedure prescribed by section 416 of the Residential Tenancies and Rooming Accommodation Act 2008 (prior reference to the RTA) must be followed for such claims.
[21] Furthermore, in a case involving the termination of a tenancy, it has been held on appeal that the Act is prescriptive about the requirements for issuing notices and commencing proceedings: these requirements cannot be waived[2].
[22] The rent was originally $175 per week and it continued at that rate until February 2007 when it was increased to $220 per week. It increased to $300 per week in September 2008 and then to $340 per week in April 2010. It remained at that rate until the tenant left on 8 November 2011. In addition to the rent, the tenant was obliged to pay for use of water exceeding a stated amount of water usage.
[23] The landlord has produced his rent ledger which I accept as accurate. It shows that rent arrears first developed in July 2001, about 2 months after the tenancy started. It can be seen from the ledger that the tenant used to pay the weekly rent fortnightly, but there were times when he missed such payments. The tenant tried from time to time to pay something towards the arrears by making larger payments or by making extra payments, but he never successfully cleared them. The arrears gradually increased until by January 2009 they had reached some $4,000. This pattern of payments continued after that date and deteriorated, so that the rate by which arrears developed accelerated, until the tenant's last payment which was on 20 September 2011. At that time the arrears were $12,117.10.
[24] The landlord told the Tribunal and I accept, that he did not pursue the arrears before now because of personal and financial difficulties faced by the tenant with which he sympathised, and because the tenant had been there for so long. Another reason was that the tenant had expressed a desire to clear the arrears, and it does appear from the ledger that he had started to do so by making payments of $1,500 on 11 March 2009, $1,200 on 28 July 2009 and $1,000 on 1 July 2011.
[25] The tenant accepted that rent was owing, but he said he was never sure of exactly how much was outstanding. He had fallen on hard times, his wife had died in 2007 and he had had other difficulties.
[26] On 8 November 2011 he left the property. He is now living in a different property. He has started a new job as a sub-contractor and earns about $800 a week, but has no other support. He has two dependent children living at home with him. He has other debts. He could pay the arrears gradually and offers to do so at $50 per week.
[27] The landlord is content for a system of repayment of the arrears to be put in place but pointed out that the tenant's sons might now be of working age, and he noted that there are four cars at the tenant's property. He suggested that it would be more appropriate if there was a payment up front, then weekly payments of $100 per week.
[28] The landlord was unaware that there was a 6 month time limit which might apply to his rent claim, but pointed out that the tenant always said that he would pay the arrears.
[29] Section 419(3) of the Act provides that a landlord has only 6 months in which to make an application to the Tribunal in respect of breaches of a tenancy agreement, and this would include rent arrears. The 6 months' period starts when the landlord is first aware of the non-payment of rent. This time to bring the claim is therefore much shorter than the 6 years limitation period in section 25 of the Limitation of Actions Act 1974 which applies to rent arrears arising from other types of tenancies and leases.
[30] It is clear from the wording of section 419(3) that the 6 months' time limit applies to rent arrears under a residential tenancy agreement even if the Tribunal is dealing with those arrears as a minor debt claim. This is because the words of section 419 taken as a whole are wide enough to cover both forms of claim.
[31] The relevant part of section 419 is in these terms:
_(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 - _
(a) a lessor or tenant under the residential tenancy agreement;
(b) a provider or resident under the rooming accommodation 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.
_(4) For a residential tenancy, the application may be made - _
(a) during the term, or after the end, of the agreement; and
(b) whether or not an application for termination, or a termination order, has been made about the agreement;
(c) whether or not a rental bond for the agreement is held by the authority when the application is made.
[32] Each time a tenant fails to pay the rent on time, this is a breach of the tenancy agreement and the 6 months' time period in respect of the rent due on that occasion starts as soon as the landlord is aware of the breach on that occasion.
[33] DCJ Botting in the Queensland District Court on appeal from the former Small Claims Tribunal considered similar wording in section 249 of the Residential Tenancies Act 1994 (the predecessor to the Residential Tenancies and Rooming Accommodation Act 2008)[3]. It was submitted in that case that the 6 year limitation period still applied despite a 6 month time limit to bring a tribunal claim in section 249. Justice Botting rejected these submissions and held that the appropriate time limit was the 6 months provided for in the Residential Tenancies Act 1994. Justice Botting also expressed the view that the 6 month time limit could not be defeated simply by recasting the claim as a debt claim[4].
[34] Section 417 of the Act provides as follows:
417 Reference to making of tribunal application includes making of dispute resolution request
_(a) an application about an issue (the dispute issue) may be made to a tribunal by - _
(i) the lessor or tenant under a residential tenancy agreement; or
(ii) a provider or resident under a rooming accommodation agreement; and
(b) 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.
Section 419 (Applications about breach of agreements) 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.
[35] The question whether an application has been made will be relevant to a limitation issue, and so section 417(1)(b) is satisfied: section 417 is engaged. It follows that where the rent dispute has been referred to the RTA, the clock stops on the date of that reference and not when the claim for rent arrears is made to the Tribunal. This compares similarly with what happens in other compulsory pre-court procedures, for example in a personal injury claim: provided the part 1 notice of claim which triggers the pre-court procedures is given within the limitation period, the action can still be brought notwithstanding the expiry of the limitation period [section 59(1) of the Personal Injuries Proceedings Act 2002].
[36] In this particular claim, since there was no reference to the RTA in respect of the rent arrear issue, the clock stops on 25 November 2011 when the claim was made.
[37] Section 38 of the Acts Interpretation Act 1954 provides:
_(1) If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event, and - _
(a) if the period is expressed to be a specified number of clear days or at least a specified number of days - by excluding the day on which the purpose is to be fulfilled; and
(b) in any other case - by including the day on which the purpose is to be fulfilled.
(2) If the time, or last day of a period, calculated forwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or last day, is taken to fall on the next day later that is not an excluded day.
(3) If the time, or earliest day of a period, calculated backwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or earliest day, is taken to fall on the next day earlier that is not an excluded day.
(4) If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the relevant occasion happens.
(a) for filing or registering a document - means a day on which the office is closed where the filing or registration must or may be done; or
(b) otherwise - means a day that is not a business day in the place in which the thing must or may be done.
[38] In accordance with this section, breaches of the agreement (by non-payment of rent) of which the landlord was aware on and after 25 May 2011 would be actionable by the claim which he brought on 25 November 2011.
[39] The tenant paid rent after the date 6 months prior to the application (after 24 May 2011), so the question arises how these payments affect the 6 month time limit and the ability of the landlord to recover the rent arrears.
[40] This question needs to be considered from two aspects:
(a) whether a payment of rent starts the clock again for all rent arrears;
(b) whether payments of rent are properly attributed to the earliest arrears of rent despite their being time barred.
[41] As for the possibility of the clock for all rent arrears restarting upon a payment of rent, the relevant provisions are contained in section 35 of the Limitation of Actions Act 1974.
[42] The relevant parts of section 35 are as follows:
Application of payments made prior to proceedings
35 Fresh accrual of action on acknowledgment or part payment
(3) Where a right of action has accrued to recover a debt or other liquidated pecuniary claim, ... and the person liable or accountable therefor ... makes a payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the ... the last payment.
(4) ..., a payment of a part of the rent or interest due at any time shall not extend the period for claiming the remainder then due, but a payment of interest shall be treated as a payment in respect of the principal debt.
[43] The terms of section 35(4) mean that subsequent rental payments will be ineffective to restart the clock for the remaining rent arrears.
[44] Water charges are not referred to in section 35(4), and there was nothing in the tenancy agreement which made these charges in the nature of "rent". Therefore they need to be considered separately. It is possible to see from the ledger that no payment was made on or after 25 May 2011 to pay the water charge bill specifically. Most payments made by the tenant were the exact amount of the rent, and the others were rounded amounts towards the general account. It follows that there was no payment "in respect" of any time barred water charges under section 35(3) of the Limitations of Actions Act 1974 capable of restarting the clock in respect of the arrears of water charges.
[45] So turning to the second point, the question arises whether further payments of rent are properly attributed to the earliest arrears of rent despite their being time barred.
[46] The answer to this question depends on whether an account of rent arrears between landlord and tenant in residential tenancy cases can properly be regarded as a running account, similar to a banker's account with a customer.
[47] If so, the rule in Clayton's Case (Devayne v Noble) [1815] EngR 77; (1816) 1 Mer 572 applies. In such a case the presumption is (in the absence of an appropriation specified by the tenant or any other agreement to the contrary) that the first item on the debit side of the account is intended to be discharged or reduced by the first item on the credit side, and that the various items are appropriated in the order in which the receipts and payments are set against each other in the account. In other words, the tenant's rent payments would always be appropriated to and pay off the earliest outstanding rent. This would apply even if an action for that rent was time barred: this is because the time bar does not extinguish the debt, it merely makes the debt irrecoverable as a matter of procedure.
[48] The effect of the rule if it applies to this case, would be that the tenant's payments of rent on and after 25 May 2011 should be appropriated first to reduce the rent arrears which stood on 24 May 2011, that is to say the time-barred part of the arrears.
[49] On the available authorities it is clear that a landlord's rent ledger is a running account to which Clayton's case applies.
[50] In Beachquest Pty Ltd v Interstate Mortgage And Investments Pty Ltd & Ors [2001] QSC 512 the Queensland Supreme Court was dealing with a mortgage account and held that were it not for a clause in the mortgage deed Clayton's case would apply to that account because of "the movement of monies in and out of the same account with the expectation that this would continue until the need for the advances ceased and the repayment of the amount outstanding to the lender was completed"[5].
[51] In Macdav Pty Ltd v Alliswell Pty Ltd [2001] VCAT 2436[6] the question arose in the context of rent of retail premises. The rule in Clayton's case was applied to the landlord's rent account.
[52] Similarly, Clayton's case has also been applied to rental payments made on an equipment lease: Quadrascan Graphics Pty Ltd v Crosfield Electronics Anz Pty Ltd & anor [1995] FCA 1248[7].
[53] Clayton's case might not apply to other debts between landlord and tenant even if added into a running account between them, but these matters are not before me in this case. In this regard I have noted that section 96 of the Act provides that if a tenant pays money to the landlord "for rent" it must be applied for that purpose, and if it is so applied it will still be regarded as rent.
[54] The appropriation rule therefore produces this result in this particular case:
Arrears of rent and water charges to the landlord's knowledge on 24 May 2011: $10,974.10 (the time barred part of the arrears)
Breaches of the agreement by non-payment known to the landlord on and after 25 May 2011 (the non time-barred part of the arrears):
Rent which became due 25 May to 8 November 2011 = $8,354
Water charges which became due 25 May to 8 November 2011 = $243
After 24 May 2011 the tenant paid $5,220 all of which goes to reduce the time-barred part of the arrears and should not be credited to the non time-barred part of the arrears.
[55] Section 362 of the Act requires a landlord to mitigate loss. In at least one QCAT decision[8] where arrears had developed over a long period of time, it was held that the landlord failed to mitigate its loss by not acting earlier. However that case was very different from this one. In this case, in my opinion the landlord did not act unreasonably in not taking action earlier than he did. He was sympathetic towards the tenant who had been through a very difficult time and who promised to repay the arrears; and from time to time the tenant appeared to be starting to do so.
[56] There are conflicting QCAT decisions at first instance as to whether section 61 of the QCAT Act 2009 enables the Tribunal to enlarge the time limit for bringing a claim.
[57] Section 61 reads as follows:-
(a) extend a time limit fixed for the start of a proceeding by this Act or an enabling Act; or
(b) extend or shorten a time limit fixed by this Act, an enabling Act or the rules; or
(c) waive compliance with another procedural requirement under this Act, an enabling Act or the rules.
(2) An extension or waiver may be given under subsection (1) even if the time for complying with the relevant requirement has passed.
(3) The tribunal can not extend or shorten a time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding.
(4) The tribunal may act under subsection (1) on the application of a party or potential party to the proceeding or on its own initiative.
(5) The tribunal's power to act under subsection (1) is exercisable
(a) the tribunal as constituted for the proceeding; or
(b) if the tribunal has not been constituted for the proceeding - a legally qualified member, an adjudicator or the principal registrar.
[58] Ryan v Cornwall [2010] QCAT 212 and McLachlan v Real Tenants - Real Property Management [2011] QCAT 665 answer this question in the negative. Aurisch v Millsons Pty Ltd & Ors [2011] QCAT 245 answers the question positively.
[59] The argument surrounds section 43A of the Limitation of Actions Act 1974 which reads:
limitation law means a law (including, but not limited to, this Act) that provides for the limitation or exclusion of any liability or the barring of a right of action for a claim by reference to the time when a proceeding on, or the arbitration of, the claim is started.
(2) A limitation law of the State is to be regarded as part of the substantive law of the State.
(3) This section applies to a cause of action that arose before the commencement of this section but does not apply to a proceeding started before the commencement.
[60] It was said in Ryan and McLachlan that the effect of section 43A declaring a limitation law of the State to be part of the substantive law of the State is automatically to extinguish the right on which a claim is based, once the limitation period for bringing proceedings to enforce the right has expired.
[61] If this is right, it would also mean that Clayton's case, as applied above, could not apply. It would restrict this landlord's claim to:
Rent which became due 25 May to 8 November 2011 = $8,354
Water charges which became due 25 May to 8 November 2011 = $243
Less payments made by tenant after 24 May 2011 $5,220
[62] In Aurisch it was pointed out that Justice Logan sitting in the Federal Court of Australia had given a recent decision in Reynolds v Aluma-Lite Products Pty Ltd (No 2)[9] that section 43A did not have the effect suggested. The arguments are fully set out in Aurisch and there is no need for me to repeat them. I would add however, that Dawson J sitting in the High Court in Commonwealth v Mewett [1997] HCA 29, considered the effect of section 78 of the New South Wales Act which was inserted by section 3 of the Limitation (Amendment) Act 1993 (NSW), and which had wording closely similar to that of section 43A.
[63] He said:
".. (section 78) provides that a limitation law, which is defined to include a law barring a right of action as well as a law excluding liability, is to be regarded as part of the substantive law of the State. That section cannot, however, change the effect of a limitation law. That is to say, if the law merely bars the remedy and does not extinguish the right, a statute-barred cause of action continues to exist even though the law is regarded as part of the substantive law. The intention behind s 78 appears to be that a limitation law of New South Wales which under the rules of private international law might otherwise not be applied in another place because it is procedural, should now be regarded as part of the substantive law and be applied in that other place."
[64] It seems to me that the weight of authority is now in favour of there being a power in section 61(1)(a) of the QCAT Act to enlarge time for bringing proceedings in QCAT.
[65] The proposal here would be to enlarge the 6 months' time limit for the landlord in this case to bring proceedings for arrears of rent to a date whereby he can recover the full $10,000 which he claims.
[66] It is necessary to consider the wording of subsection (3) of section 61. That does not allow a Tribunal to enlarge the time limit "if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party".
[67] In this case the prejudice or detriment would be that of the tenant. Without an order to enlarge time, the tenant faces judgment for $8,597. With an order to enlarge time, he faces judgment of $10,000. It would clearly be a detriment to him therefore, if time were enlarged. And it cannot be argued that there is no detriment to him if time were enlarged because as a matter of fact he owes the money. It is true that he owes the money, but without an order to enlarge time that money is not recoverable from him. This means that he is currently in the legal and factual position of facing only a judgment of $8,597. If time is enlarged it changes that legal and factual position to his detriment.
[68] Can such detriment be remedied by an appropriate order for costs or damages? Clearly not, since the only order that could possibly be made to compensate him for any such detriment would be not to order him to pay the landlord's filing fee of $95. It follows that I cannot enlarge the time for the landlord to bring this claim because of the terms of section 61(3) of the QCAT Act.
[69] To avoid any doubt I am going to declare that the tenancy terminated upon the tenant's abandonment on 8 November 2011. In respect of the arrears of rent and water charges, I shall award the landlord the sum of $8,597 plus his filing fee of $95. This comes to $8,692.
[70] As for time to pay, subsequent to the hearing the landlord has indicated to the Tribunal that he is willing to accept the tenant's offer to pay the arrears at the rate of $50 per week, so this is the order that I shall make. I give leave to either party to apply to the Tribunal to vary the instalment order.
[1] this was fatal in Adams v Scowcroft [2012] QCATA 25 at [18]
[2] Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65.
[3] Delahoy & Grevell v Wuiske & Anor [2006] QDC 276.
[6] Victorian Civil and Administrative Tribunal.
[8] Redondo Property Investments Pty Ltd v Bennett & Anor [2011] QCAT 282.
Raymond
Doidge [2012] QCAT 163