Moyer v Chang

[2013] QCATA 117

CITATION: Moyer v Chang [2013] QCATA 117

PARTIES:	Ms Marie Moyer (Applicant)
v
Ms Li Ling Chang (Respondent)

APPLICATION NUMBER: APL039-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 22 April 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Leave to appeal granted.

2.    Appeal allowed.

3.    The decision of 3 January 2013 is set aside.

4.    The application in MCD2467/12 is dismissed.

CATCHWORDS:

MINOR CIVIL DISPUTE – where application for compensation on abandonment – whether truly an abandonment – whether dispute resolution request required – whether claim out of time – whether grounds for leave to appeal

Residential Tenancies and Rooming Accommodation Act 2008, s 359, s 415, s 416, s 419

Cachia v Grech [2009] NSWCA 232

Chambers v Jobling (1986) 7 NSWLR 1

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
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 and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. On 15 March 2012, Raine & Horne Robertson, acting for Ms Chang and Mr Kuroda, issued a Form 15 Abandonment Termination Notice to Ms Moyer. On 4 December 2012, Raine & Horne filed an application for compensation on abandonment. The tribunal largely accepted Raine & Horne’s submissions and ordered Ms Moyer pay Ms Chang and Mr Kuroda $1,963.20.

2. Ms Moyer wants to appeal that decision. She says that the learned Adjudicator could not make the order for two reasons. Firstly, Raine & Horne did not make a dispute resolution request as required.[1] Secondly, My Moyer says that the claim is out of time, as it was not made within six months of the end of the tenancy.[2]

   [1]        Residential Tenancies and Rooming Accommodation Act 2008, s 416.

   [2]        Residential Tenancies and Rooming Accommodation Act 2008, s 419.

3. Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[3] Is there a reasonable prospect that the applicant will obtain substantive relief?[4] Is leave necessary to correct a substantial injustice caused by some error?[5] Is there a question of general importance upon which further argument, and a decision of the Appeals Tribunal, would be to the public advantage?[6]

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

   [4]        Cachia v Grech [2009] NSWCA 232 at 2.

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

   [6]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.

4. The application before the learned Adjudicator was for compensation on abandonment.[7] As the learned Adjudicator identified, that is an urgent application[8] and, therefore, a party can bring a claim without first making a dispute resolution request.[9]

   [7]        Residential Tenancies and Rooming Accommodation Act 2008, s 359.

   [8]        Residential Tenancies and Rooming Accommodation Act 2008, s 415(5)(q).

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

5. Ms Moyer says that she did not abandon the tenancy, she handed the keys back in February. Ms Cox of Raine & Horne initially denied that Ms Moyer returned the keys.[10] Later, however, Ms Cox admitted that Ms Moyer returned the keys but that she still wanted to treat Ms Moyer’s actions as abandonment.[11]

   [10]        Transcript page 3, line 30.

   [11]          Transcript page 11, lines 29 – 30, 35 – 37.

6. The learned Adjudicator found Ms Moyer did not deliver a notice of intention to leave, or an application for termination on the grounds of excessive hardship. He found that the agent had reasonable grounds for believing that Ms Moyer had abandoned the tenancy. Although I have some doubts about the validity of Raine & Horne’s evidence, I can find no compelling reason to disagree with the learned Adjudicator’s finding that Ms Moyer abandoned the tenancy. The failure to make a dispute resolution request is not a ground for appeal.

7. I disagree with the learned Adjudicator’s findings that an application for abandonment compensation is not based on a breach. The breach is, of course, the tenant’s failure to remain in the tenancy for the full term.

8. The Tribunal has published many decisions stating that an application for compensation must be brought within six months of the party becoming aware of the breach. The Tribunal has no discretion to extend that time limit, even if, as Raine & Horne suggested, there are good reasons why the claim was not made within time.[12]

   [12]        Transcript page 7, lines 34 – 35.

9. The right to compensation is for any loss or compensation incurred by the abandonment [13] (my emphasis). I therefore interpret the right as being restricted to those costs that relate directly to the tenant unexpectedly vacating the tenancy. Those costs might include the cost of preventing the tenant from re-entry, by changing the locks or securing an opening. It might also include a re-let fee or a readvertising fee. It cannot include unpaid rent or unpaid water bills. It is unlikely to include the normal incidents of cleaning and repairs unless the lessor can demonstrate that those costs were incurred by the abandonment, rather than by a simple breach of the tenancy agreement.

   [13]        Residential Tenancies and Rooming Accommodation Act 2008, s 359(2).

10. Lessors and agents should not try to subvert the purpose of the Residential Tenancies and Rooming Accommodation Act 2008 by disguising a normal claim for compensation for breach as a claim for compensation for abandonment. The right to compensation on abandonment must be read in light of, and subject to, the general limitation in s 419(3) of the Act.

11. The learned Adjudicator ordered Ms Moyer pay compensation for unpaid rent. The rent was outstanding for many months before Ms Moyer left the tenancy. It cannot be a loss or expense incurred by the abandonment. It is simply a claim for breach of the tenancy agreement. The learned Adjudicator, in trying to reach an equitable solution, was led into error by the nature of the application. Leave to appeal should be granted, the appeal allowed and the learned Adjudicator’s decision of 3 January 2013 should be set aside.