QCAT and property management

Update 4th June 2018 

Queensland Real Estate Excellence members,
 
I have been researching and have found some possible good news for now in relation to QCAT and names on applications.
 
I have updated the ‘fact sheet’ QCAT compensation order (new page 5) with a version 2 and have found a useful appeal decision which may be useful if needed regarding orders made in the agency name.
 
I am always conscious of sending too many emails to you, so for now have decided to post this, which you can find at member login (shown below) in folder 00 latest member update, plus in QCAT folder 30 as shown below as well.
 
I have emailed the above to members I am aware of concerns etc on this matter.
 
 
Stacey Holt
 
Join the private FB members group at link below (member offices only)
 

 

Update 1 June 2018

The Principal Registrar of QCAT has phoned me to discuss the concerns today, which was appreciated. The Principal Registrar is going to review the matter and we will discuss again within the next fortnight. For now members and industry are advised to continue putting the Lessor name/s on applications and consider wording of agency name representing the Lessor name, or Lessor name represented by agency name. I will advise member offices via email of future updates regarding this matter. Stacey Holt.

 

QCAT commenced in Queensland December 1 2009. Over the years there have been many situations throughout the state regarding names of applicants and inconsistencies in relation to completion of documentation. Below tries to explain possible reasons for this. If your agency is concerned about QCAT requiring the agency name to be on the application instead of lessor name care of the agency,  (or will not accept an application to join a landlord to a proceeding if the tenant has named the agency as respondent instead of the landlord), please voice your concern by contacting QCAT at their email address  here. - Attention the email to Principal Registrar. Suggestion is to name the registry (courthouse) where there are concerns, and if known, any names of sitting members who have given direction. I have written to QCAT and followed up with no response as at today 31 May 2018.

The following QCAT Appeal cases demonstrate why agencies should not have their name solely as part of the application or be named as a party solely. The tenancy legal contract is between the lessor and tenant; the agent represents the lessor via the Property Occupations Act. The cases have been made available to member offices as part of membership services and can be sourced from www.qcat.qld.gov.au

Important information was emailed to Real Estate Excellence member offices on 21st May regarding this matter Member update. A fact sheet for member offices if they are named in a compensation claim order is also now available. As per information supplied to members in detail, section 206 (3) RTRA Act allows agents to stand in the lessor place at tribunal. This provision is being cited by some sitting members as to their reasoning for not allowing lessor name on the applications and only the agency. Stand generally means represent, not be the applicant. A solicitor represents (stands) in place of their client as representative but are not the party before the court so to speak as a generalised analogy.

Noosa Hot Properties.com Pty Ltd v Olopai [2012] QCATA 201

Peter McManus Real Estate v Czuchwicki [2016] QCATA 173

 Corcoran v Simon [2016] QCATA 109

Below is a brief overview of QCAT and is sourced from chapter 30 (part of chapter 30.1) of the Property Management Excellence QLD PME manual

QCAT (Queensland Civil and Administrative Tribunal) is the jurisdiction that hears tenancy disputes (and many other civil matters). If a tenancy dispute cannot be resolved via dispute resolution through the RTA or self-resolution attempts within the agency are unsuccessful, a tenancy dispute can be taken to Tribunal for a legal resolution.

There are two types of Tribunal applications; urgent and non-urgent. These two types of applications are legally defined under the RTRA Act in sections 415 and 416.

QCAT is a civil jurisdiction as opposed to criminal. QCAT works under the premise of ‘balance of probabilities as opposed to beyond a reasonable doubt which is criminal’. The QCAT Act, regulations and rules allow tribunal members discretion in relation to how they run their ‘court room’ and procedures. Whilst there are legislative requirements, the sitting member has discretion to request their own procedures for their ruling based on balance of probabilities.

For example; some sitting members make it a requirement that there must be affidavits and affidavits of service or they will not hear the matter. It is best practice which is referenced in this chapter, that affidavits and affidavits of service should always be completed prior to making applications to tribunal.

Sitting members do not have to look at all the evidence presented; if they believe the evidence provided is sufficient, they can make a ruling on the matter. If a sitting member make an error at law and or natural justice has not occurred, an appeal can be made. Appeals are discussed further in this chapter.

Adjudicators (lawyers) or magistrates hear tenancy applications and disputes in the Tribunal. When making decisions, adjudicators and lawyers must give reasons for their decision. Some areas of Queensland have Justices of the Peace (JP’s) that can hear matters up to $5000.