Grebeneva & Anor v Ray White Deception Bay & Ors

[2024] QCATA 16

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Grebeneva & Anor v Ray White Deception Bay & Ors [2024] QCATA 16

PARTIES:

ZINAIDA GREBENEVA
(FIRST APPLICANT/APPELLANT)

AND

PETER JOHN WOOD

(second applicant/appellant)

v

RAY WHITE DECEPTION BAY

(first respondent)

And

TREVOR PICKET

(second respondent)

And

MARGARET TSENG

(third respondent)

APPLICATION NO/S:

APL261-23

ORIGINATING APPLICATION NO/S:

MCDT84-23 (Redcliffe)

MATTER TYPE:

Appeals

DELIVERED ON:

6 February 2024

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

1.     Leave to appeal granted.

2.     Appeal allowed.

3.     The decision of 7 August 2023 is set aside.

4.     The application in MCDT84/23 (Redcliffe) (but not the counter application) is remitted to the minor civil dispute jurisdiction for rehearing.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where application in a residential tenancy dispute grounded upon section 71 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) was filed within thirty days of a new tenancy agreement being signed – where application dismissed in error as having been filed out of time – where tribunal erred in applying incorrect section of the Act

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 143, Sch 3

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 71, s 92, s 415, s 416, s 417

Cachia v Grech [2009] NSWCA 232

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

What is this application about?

1. On 13 June 2023 the applicants filed an application in a residential tenancy dispute (MCDT84/23 - Redcliffe) against the managing agents and owners of the property they occupied as tenants seeking orders that the respondents pay them $1,002,004.79 in compensation for various complaints made against the respondents, including for health degradation, distress, and life quality reduction. It is trite to say that the claims largely lacked merit and well exceeded the tribunal’s monetary jurisdictional limit of $25,000.[1]

   [1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), Schedule 3.

2. Within the application, however, a claim objecting to the most recent rent increase, in respect of which the applicants sought relief under section 71 of the Residential Tenancies and Rooming Accomodation Act 2008 (Qld) (‘RTRAA’).  This claim was considered but dismissed on the grounds that the applicants had filed their application out of time. 

3. In so deciding, the learned Adjudicator applied the time limit set out in section 92 of the RTRAA, rather than that set out in section 71.

4. A counter application brought by the respondents was also dismissed, however, was because the counter application filed, in fact, simply the respondents’ response submissions, and did not seek any relief. Neither party raises an objection to the decision dismissing the counter application.  

5. The applicants want to appeal the decision to dismiss their application, but require leave to do so.[2] 

   [2]QCAT Act, s 143(3).

6. Upon reviewing the application for leave to appeal or appeal and the MCDT file on 22 August 2023 I made directions inviting submissions from the parties based upon the following observations:

   Noting the application for leave to appeal cites, among other things, an error with respect to dismissing the claim under section 71 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) as being out of time, the Appeal Tribunal notes:

   (a)      the time limit for bringing such a claim is within 30 days of signing the new agreement

   (b)      the new agreement was signed on 12 April 2023

   (c)      a dispute resolution request was made on 19 April 2023

   (d) section 417(2) applies such that the application is deemed to have been made on 19 April 2023,

   it therefore appears that the application with respect to section 71 was made within time and ought to have been considered by the Tribunal below. As this is an error of law, the Appeal Tribunal is considering granting leave to appeal, allowing the appeal, setting aside the dismissal and remitting the matter back to the minor civil dispute jurisdiction to be reheard.

7. The applicant tenants agree that an error was made and support the proposed course.

8. The respondents did not directly address the issue of error, but made extensive submissions on comparable rental, addressing instead the substantive aspects of the tenants’ rent claim in the MCDT matter.

Legislative framework – tenancy disputes

Urgent vs non-urgent applications

1. Sections 414A to 417 of the RTRAA provide for how tenancy applications are made, including how “urgent’ and “non urgent” applications are dealt with.

2. “Urgent” applications are as defined in section 415, but do not include applications about rent under section 71.

Dispute Resolution

1. The Residential Tenancies Authority (‘RTA’) dispute resolution process must have been completed (not merely requested) before a non-urgent application is made to the Tribunal, but it is not required for urgent applications.[3]

   [3]RTRAA, section 416.

2. Section 417(2) of the RTRAA deems an application to have been made on the date a dispute resolution request is made to the RTA.

Section 71 claims

1. Under section 71 of the RTRAA, a tenant may apply to the tribunal about a significant change in their tenancy agreement, and, if it relates to rent, may seek an order reducing the rent payable if, among other things, the lessor of the premises enters into a new agreement with the tenant (the ‘new agreement’) for the premises that starts after the end of the existing agreement.

2. The application must be made within 30 days after the tenant enters into the new agreement.

Application for leave to appeal

1. In determining whether to grant leave, the Appeal Tribunal must be satisfied that:

   (a)there is a reasonably arguable case of error in the primary decision;[4]

   (b)there is a reasonable prospect that the appellant will obtain substantive relief;[5]

   (c)leave is needed to correct a substantial injustice caused by some error;[6] or

   (d)there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[7]

   [4]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [5]Cachia v Grech [2009] NSWCA 232, 2.

   [6]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [7]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.

Error in the primary decision

1. There is a clear case of error in the primary decision of the Tribunal because it is clear on the evidence that:

   (a)The new agreement was signed on 12 April 2023.

   (b)The tenants made their dispute resolution request on 19 April 2023.

   (c)Section 417(2) of the RTRAA deems the application under section 71 to have been made on 19 April 2023.

   (d)The application was filed within time, namely, within thirty days of the new agreement being signed.

Substantial injustice on account of the error

1. The application has not been considered on its merits and it remains unresolved as to whether the tenants are entitled to a rent reduction for the period of their new agreement. This requires consideration of the factual evidence put forward by both parties, something the Appeal Tribunal is not able to do.

2. The erred dismissal of the tenants’ application has, therefore, led to substantial injustice.

3. Leave to appeal is granted on that basis.

Appeal

1. I am satisfied that there has been an error of law on the part of the Tribunal below in dismissing the application (but not with respect to the dismissal of the counter application) on 7 August 2023 for want of jurisdiction.

2. The appeal is allowed, the original decision of 7 August 2023 is set aside, and the tenants’ application (but not the respondents’ counter application) is returned to the minor civil dispute jurisdiction to be reheard.