Articles in Category: Member Update

Contents of Real Estate Excellence Member update - emailed to members the first week of each month plus loaded online in the Member updates folder.


QCAT update - counter applications and naming the parties

Two new developments since I presented the QCAT special one day event earlier this year throughout QLD

The Principal Registrar of QCAT has responded to my concerns for industry Click here and review my concerns (scroll down blog) where some registries are requiring the agency to be named separate on the paperwork to QCAT, and or will not allow lessor name represented by lessor. My suggestion as per the advice received, is to download and print the below fact sheet and take to the registry to show staff who try to direct your agency on how the paperwork is to be completed. 
 

How to identify the parties QCAT Fact sheet

Members of Real Estate Excellence will receive the above, plus more information in the August member update 

Members of Real Estate Excellence;  if you require any best practice advice or support on this matter, or any other matter, please email us.

Submissions instead of counter application. 

As per the following legislation, submissions can be written to tribunal instead of a counter application. Real Estate Excellence recommends that counter applications be done, particularly if there are monies being claimed against the tenant who has made application.

 From QCAT rules

 43 No responses for particular minor civil disputes

(1) A party to a proceeding for a minor civil dispute other than a minor debt claim can not respond to the application for the proceeding.

(2) Subrule (1) does not prevent the party from—

(a) making a counter-application; or

(b) giving the tribunal evidence in writing, or making

written submissions to the tribunal, in a way allowed by

the tribunal under section 95 of the Act.

From QCAT Act

95 Evidence

(1) The tribunal must allow a party to a proceeding a reasonable

opportunity to—

(a) call or give evidence; and

(b) examine, cross-examine and re-examine witnesses; and

(c) make submissions to the tribunal.

(2) Despite subsection (1)—

(a) the tribunal may refuse to allow a party to a proceeding

to call evidence on a matter if the tribunal considers

there is already sufficient evidence about the matter

before the tribunal; and

(b) the tribunal may refuse to allow a party to a proceeding

to cross-examine a witness about a matter if the tribunal

considers—

(i) there is sufficient evidence about the matter before

the tribunal; and

(ii) the evidence has been sufficiently tested by

cross-examination; and

(c) for an expedited hearing under section 94,

cross-examination or re-examination of witnesses is at

the discretion of the tribunal, subject to the rules.

(3) Also, the tribunal may place time limits on the giving of

evidence and on the examination, cross-examination and

re-examination of witnesses.

(4) Evidence in a hearing—

(a) may be given orally or in writing; and

(b) if the tribunal requires, must be given on oath or by

affidavit.

(5) A member or adjudicator may administer or cause to be

administered an oath for the purpose of taking evidence at a

hearing.

(6) A child can not be compelled to take an oath.

                   

Section 419 RTRA Act - breach of agreement

Queensland legislation

Parktrent Properties Group & Ors v Hancox [2018] QCATA 90 (3 July 2018)

Last Updated: 13 July 2018

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:
Parktrent Properties Group & Ors v Hancox 2018 QCATA 90
PARTIES:
PARKTRENT PROPERTIES GROUP
(first appellant)
DIARMUID LYNCH
(second appellant)
MARION DALY
(third appellant)
 
v
 
KATHRYN HANCOX
(respondent)
APPLICATION NO/S:
APL359-17
ORIGINATING APPLICATION NO/S:
MCDT1421 (Brisbane)
MATTER TYPE:
Appeals
DELIVERED ON:
3 July 2018
HEARING DATE:
10 April 2018
HEARD AT:
Brisbane
DECISION OF:
Member Howe
ORDERS:
  1. Leave to appeal is granted.
  2. The appeal is allowed.
  3. The decision of the Tribunal dated 9 October 2017 is set aside.
  4. The respondent must pay the appellants the sum of $1,130.50 for claim and $112.50 for costs within
    14 days of the date hereof.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – where application to recover compensation from a tenant was dismissed because the Tribunal held the claims were out of time – where the six month rule set by s 419 Residential and Rooming Accommodation Act 2008 (Qld) applied – where the calculation of the six months period in error – where the appeal was on the basis of error of mixed law and fact – further evidence of the claims for compensation heard on hearing of the application for leave to appeal or appeal – whether costs of appeal should be allowed
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 417, s 419
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 83
Pickering v McArthur [2005] QCA 294
APPEARANCES & REPRESENTATION:
 
First applicant:
G Beaumont and T Renzella, of Parktrent Properties Group
Second applicant:
No appearance
Third applicant:
No appearance
Respondent:
Self-represented

REASONS FOR DECISION

[1] The respondent was a tenant of a home at Lowood owned by Mr Lynch and Ms Daly. The real estate agent was Parktrent Properties Group.
[2] The fixed term of the tenancy ended on 12 June 2016 and the tenant remained in possession on a periodic basis after that on the same terms and conditions. The tenant vacated on 28 October 2016 after giving notice of intention to leave in Form 13. There was a bond held by the Residential Tenancies Authority (‘RTA’) of $1,280.
[3] The appellants applied for conciliation through the RTA which was not successful. The application was made on 30 November 2016.
[4] On 31 May 2017 the appellants applied to the Tribunal for compensation from the respondent totalling $1,318.60 (including costs) which was more than the bond.
[5] The matter came on for hearing before Justices of the Peace. The Justices of the Peace concluded the claim of the appellants was out of time in respect of the ‘6 month rule’ under s 419 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘the Act’) that a lessor claiming orders from the Tribunal about a breach of a tenancy agreement must make an application to the Tribunal within 6 months after the lessor becomes aware of the breach. The claim was dismissed.
[6] Given this is an appeal from a decision made in the Tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1]
[7] Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant, and where there is a reasonable argument that there is an error to be corrected.[2]
[8] The appellants raise as the ground of appeal that the Tribunal erred in its calculation of the 6 month rule and that the application was within time.
[9] As stated, the respondent vacated on 28 October 2016. The appellant’s representative at the hearing below advised that RTA conciliation had been applied for on 30 November 2016. The Tribunal then asked when the application was filed in the Tribunal, the answer being 31 May 2017. The Tribunal concluded the appellants were therefore one day outside the 6 month time limit ‘in respect of the notice with the RTA’. Accordingly the Tribunal dismissed the claim.
[10] The Tribunal calculated the application to the Tribunal was ‘one day out.’[3] The Tribunal took the 6 month period set by s 419 of the Act as that period between the date of RTA conciliation, 30 November 2016, and the date the application was filed in the Tribunal, 31 May 2017.
[11] Section 419 provides:
(1) This section applies if any of the following claim there has been a breach of a term of a residential tenancy agreement—
...
(2) The lessor or tenant ... 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 ... becomes aware of the breach.
[12] By s 417:
(1) This section applies if –
(a) an application about an issue ... may be made to a tribunal by—
(i) the lessor ...
(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.
[13] Making a dispute resolution request to the Residential Tenancies Authority is deemed to be making an application about the matter to the Tribunal. This provision could be better worded.
[14] The respondent vacated on 28 October 2016. The appellant applied for RTA conciliation on 30 November 2016. That was within 6 months of the vacate date and, subject to the matters claimed arising at the time of exit (not say 6 months earlier during the term of the tenancy), meant that the appellant had complied with the
6 month rule. By s 417(2), the application for RTA conciliation was deemed to be an application to the Tribunal for the purposes of the 6 month rule.
[15] The Tribunal was therefore in error in concluding the appellant’s claim was out of time and the claim could not be heard.
[16] That is an error that requires correction. The appellant suffered a substantial injustice in the matter. The appellants are entitled to leave to appeal.

Appeal

[17] The error concerned was an error of mixed law and fact. The appeal must therefore be decided by way of rehearing, with or without the hearing of additional evidence as decided by the Appeal Tribunal. Given the error in calculating time by the Justices of the Peace became obvious during the hearing of the application for leave to appeal or appeal, the parties were allowed to present the evidence filed in the action below but not considered by the Justices of the Peace and to lead additional oral evidence on the issues in dispute. In respect of the issues of compensation:

Cleaning

[18] There is an invoice for cleaning totalling $135.
[19] The lessor claims as part of that, $80 for the cost of stain treatment on carpet. There are photographs filed by the agents showing some stains in bedroom 3. The respondent said she paid for her own carpet cleaning. It would appear from the photographs that the carpets needed more work, however. There was email advice to the tenant that more work was necessary about that at or about the time of vacate. The agents say the tenant’s cleaner could have returned but the cleaner did not. The respondent says she lost the contact details of her cleaner. The claim by the appellants seems reasonable and should be allowed.
[20] There is also a claim for cleaning up after fairly extensive work by painting contractors engaged by the appellants. Given the extent of the painting and patching required this seems reasonable too and is allowed at $55.

Painting

[21] There were quite a few areas in the house where the agents say painting was required. The respondent said there were quite a few places where there were patches which looked like different gloss paint had been applied but which were only visible in glancing light. She said she was not responsible for that however. She said the property was like that on entry.
[22] The entry condition report notes the walls being in good condition generally and some areas noted as having been freshly painted. The respondent admitted she had not completed her part of the entry condition report and there was nothing in the report to challenge the description of condition of the property set out in the report completed by the agents.
[23] I conclude the entry condition report accurately depicts the condition of the property at entry. It is an important document. If tenants wish to challenge a lessor’s claim that the tenants are responsible for the damaged condition of the rental property at exit as compared to its condition when they entered, the best means of doing that is to fully complete the entry condition report.
[24] The agents say that painting work costing $698 was necessary to return the property to the condition it was in at the start of the tenancy. I accept the agents’ evidence about that. It is supported by the notations in the entry condition report.
[25] The appellants are entitled to recover the sum of $698 they paid for repainting. It seems a reasonable amount for what appears to have been a significant amount of work.

Locksmith

[26] The appellants claim $75 for the cost of a remote control for the garage. The respondent says she returned all keys on exit including the remote and the remote was working. The agents have no notes on file about the remote. They cannot say why the claim is made. They also say 3 keys were not returned and it cost the appellants $16.50 to cut new ones. The respondent thought she had returned all the keys but conceded she could be wrong.
[27] I accept the respondent’s evidence that she returned a working remote and accept the agents’ evidence that 3 keys were not returned.
[28] The appellants are entitled to the cost of cutting new keys, $16.50, only.

Water

[29] The claim is for $281. There is an invoice from the agents to the respondent dated 30 November 2016 claiming for the cost of water over the period 7 July 2016 to 28 October 2016. The respondent does not dispute the claim. It is allowed.

Conclusion

[30] The allowed items of claim total $1,130.50. The cost of the original Minor Civil Dispute – Residential Tenancy Dispute application was also sought at the initial hearing and that should be allowed. That was $112.50.
[31] There is no bond held by the Residential Tenancies Authority. That has been paid out to the respondent.
[32] As to the costs of appeal, the usual rule in the Tribunal is that each party bear their own costs.[4] The Queensland Civil and Administrative Tribunal Rules 2009 (Qld) make exceptional provision about costs in a minor civil dispute matter, allowing the applicant to claim the filing fee only in the claim.[5] That fee has been allowed. The usual rule should apply in respect of the cost of the appeal fee, however.

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 142(3)(a)(i).

[2] Pickering v McArthur [2005] QCA 294, [3].

[3] Transcript 1-10, line 11.

[4] QCAT Act, s 100.

[5] Rule 83.

Sourced from https://archive.sclqld.org.au 24 July 2018

New South Wales smoke alarms - coronial inquest

13th July 2018

The NSW Coroner have released their findings and made recommendations (below) into the tragic death of Miata Jibba in a rental property. I strongly recommend reviewing the inquest report which you can review here.

The most likely outcome will be amendments to smoke alarm legislation in the near future. I have an escape plan document to give to tenants at Member online in folder 03 smoke alarms. I will be creating best practice documents for members in the coming weeks in light of the inquest recommendations for immediate best practice change.

The above information was emailed to NSW FREE mailing list - join our mailing by emailing your name, email and location (such as Dubbo) to This email address is being protected from spambots. You need JavaScript enabled to view it.

Review the inquest and findings here

 

Agencies fined for unlawful entry to rental property - Queensland

Training event QLD August to September 2018

Two recent prosecutions by the Residential Tenancies Authority (RTA) included breaches of 'rules of entry' to rental property. Section 192 to 199 cover rules of entry under the RTRA Act. These requirements are called rules of entry as per section 200. Upcoming property management training throughout Queensland (from August to September 2018 - one session each location) will include this topic as part of the training and education event Click here for more information regarding the training events

Upcoming property management training

What property managers need to know about the RTRA Act regarding special terms. The session will include information on educating lessor clients regarding the Act and carpet cleaning, pools, pest control and more. Best practice completed tenancy agreement/contract will be provided and discussed plus how to bind the tenant lawfully in accordance with the RTRA Act. We shall also discuss 'rules of entry' legislation.

Real Estate Agency fined $10000 and criminal conviction

Real Estate Agency fined $8500 and convicted

 

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.