Articles in Category: Property Management information

Article and information that are of interest to property managers. Note; some articles may be Queensland legislation focused.


What is the role of a property manager?

Property management is a very diverse, challenging and interesting career. No two days are ever the same. What property managers do is mind boggling to some but to many of us it is ‘all in a day’s work’. Property management is really about People Management.

All property managers must remember that ‘nothing is your problem’ (so to speak) and in the great game that is property management, your key role is the following;

  • Maximise your lessor’s income and minimise their loss
  • Always act in the best interest (both ethically and legally) of your licensee and the lessor
  • Always remember your duty of care to the tenant
  • And remember; your main duty is the following
  • Educate your lessors and tenants to the best of your ability
  • Communicate with your lessor and tenants to the best of your ability;
  • Negotiate with your lessors and tenants to the best of your ability.

Property management is a task related profession meaning that the career is made of up of many tasks which require a system to be followed, following up, following through until there is an end or outcome within a reasonable time frame. All tasks should have an end otherwise there are matters outstanding, dissatisfied lessors or tenants plus extra stress placed on property managers.

The above information is an extract from page 1 of the PME (property management excellence) system which is a service provided by Real Estate Excellence Academy.

ATO Covid 19 and rental property information

Sourced from www.ato.gov.au 25th June 2020

  • Many residential rental property owners have had their rental income affected by COVID-19. As a result, your clients may ask you about what they can claim this tax time.

    Our website provides some frequently asked questions (FAQs) and other information to help you and your clients understand their rental property obligations and what information your clients need to give you in order to lodge correctly.

    You and your rental property owner clients can check our FAQs to find out:

    • What expenses are claimable if tenants are not paying their rent under the lease agreement due to COVID-19?
    • Will deductions for rental property expenses stay the same if the property owner reduces the rent charged?
    • Must a back payment of rent or an amount of insurance received for lost rent be included as income?
    • Is a deduction on the interest charged on a rental property loan allowed if the bank defers repayments due to the COVID-19 outbreak?
    • Is the new instant asset write-off deduction available for residential rental property assets?
    • Impacts on short term rental properties.

    See also:

Queensland tenancy law - tenant right to make minor modifications to rental property

November 17, 2019 - author Stacey Holt

The Queensland Government released stage one of the proposed amendments to the RTRA Act 16th November, 2019. I have been keeping a running blog since the laws were first looked at being changed in 2012. View the blog, history, developments and more here.In this blog, I am addressing one of the five proposed changes relating to the tenant right to make 'minor modifications' to a rental property. Again, there is no need to make further legislation given this matter is already covered in the RTRA Act as outlined in the current provisions below. Listen to podcast on this matter here.

207 Attaching fixtures and making structural changes

 The tenant may attach a fixture, or make a structural change, to the premises only if the lessor agrees to the fixture’s attachment or structural change.

208 Agreement about fixtures and structural changes

 (1) The lessor’s agreement to the attaching of a fixture, or making of a structural change, must—

(a) be in writing; and

(b) describe the nature of the fixture or change; and

(c) include any terms of the agreement.

(2) For an agreement about attaching a fixture to premises, the terms may include terms about—

(a) whether the tenant may remove the fixture; and

(b) if removal by the tenant is allowed—

(i) when and how the removal may be performed; and

(ii) the obligation of the tenant to repair any damage caused to the premises in the removal or

compensate the lessor for the lessor’s reasonable costs of repairing the damage; and

(c) if removal by the tenant is not allowed—the obligation of the lessor to compensate the tenant for any

improvement the fixture makes to the premises.

(3) The lessor must not act unreasonably in failing to agree to the attaching of a fixture, or the making of a structural change, to the premises.

(4) If the lessor agrees to a fixture being attached, or a structural change being made, to the premises by the tenant, the tenant must not contravene a term of the agreement.

209 Attaching fixture or making structural change without lessor’s agreement

 (1) If the tenant attaches a fixture, or makes a structural change, to the premises without the lessor’s agreement, the lessor may—

(a) waive the breach; and

(b) treat the fixture or change as an improvement to the premises for the lessor’s benefit.

(2) The lessor may take the action under subsection (1) instead of taking action for a breach of a term of the residential tenancy agreement by the tenant.

Anyone reading this blog are welcome to copy, paste, make any edits they see fit and give feedback to the Government here. Keep it simple; tenants are already protected due to current legislation. Investors, agents and managers are encouraged to also consider contacting their local state member and voice/write your concerns. Of the 135000 responses the Government received as part of the review period in 2018, 2% came from property managers, with 18% being owners, and 79% coming from tenants. (sourced from "A better renting future Reform Roadmap"). I encourage all to have their say NOW. 

For more information regarding what is proposed regarding the right for tenants to make minor alterations to a rental property, click here.

My submission to Government during the 2018 review is below. Copied from my blog here.

4th October 2018

 Why legislation does not need to change regarding tenants making alterations to a property.

A reference to the requirements when tenants wish to make any changes to the property is currently covered in standard term 27 of the lease / tenancy contract agreement (Form 18a). The relevant sections of the RTRA Act are as follows. Landlord should retain the right to know what changes are being made to their property, and their consent sought. Tenants may drill holes, place excessive amounts of hooks in property that may aesthetically change the property, and or damage the property in the process. Tenants are protected if a lessor is unreasonable in any written requests. As the Minister in his tweet below reference, planting of flowers are innocent enough, but creation of gardens can create dispute in the future when the current tenants chose to move to another home, and the new tenants are faced with the possibility of gardens to maintain.

Keep the law as it. This is fair for all parties.

207 Attaching fixtures and making structural changes

 The tenant may attach a fixture, or make a structural change, to the premises only if the lessor agrees to the fixture’s attachment or structural change.

208 Agreement about fixtures and structural changes

 (1) The lessor’s agreement to the attaching of a fixture, or making

of a structural change, must—

(a) be in writing; and

(b) describe the nature of the fixture or change; and

(c) include any terms of the agreement.

(2) For an agreement about attaching a fixture to premises, the terms may include terms about—

(a) whether the tenant may remove the fixture; and

(b) if removal by the tenant is allowed—

(i) when and how the removal may be performed; and

(ii) the obligation of the tenant to repair any damage caused to the premises in the removal or compensate the lessor for the lessor’s reasonable costs of repairing the damage; and

(c) if removal by the tenant is not allowed—the obligation of the lessor to compensate the tenant for any improvement the fixture makes to the premises.

(3) The lessor must not act unreasonably in failing to agree to the attaching of a fixture, or the making of a structural change, to the premises.

(4) If the lessor agrees to a fixture being attached, or a structural change being made, to the premises by the tenant, the tenant must not contravene a term of the agreement.

209 Attaching fixture or making structural change without lessor’s agreement

 (1) If the tenant attaches a fixture, or makes a structural change, to the premises without the lessor’s agreement, the lessor may—

(a) waive the breach; and

(b) treat the fixture or change as an improvement to the premises for the lessor’s benefit.

(2) The lessor may take the action under subsection (1) instead of taking action for a breach of a term of the residential tenancy agreement by the tenant

QCAT appeal case - Professional carpet cleaning and pest control

Sourced from austlii.edu.au September 3 2109

Eising v Westgarth Realty Pty Ltd [2019] QCATA 120 (2 August 2019)

Last Updated: 20 August 2019

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:
Eising v Westgarth Realty Pty Ltd (2019) QCAT 120
PARTIES:
LINDY MAREE EISING

(applicant/appellant)

 
v
 
WESTGARTH REALTY PTY LTD
(respondent)
APPLICATION NO/S:
APL301-18
ORIGINATING APPLICATION NO/S:
MCDT 15/18
MATTER TYPE:
Appeals
DELIVERED ON:
2 August 2019
HEARING DATE:
27 March 2019
HEARD AT:
Brisbane
DECISION OF:
Justice Carmody
ORDERS:
  1. Extension of time to file leave to appeal granted.
  2. Leave to appeal granted.
  3. Appeal dismissed.
CATCHWORDS:
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where tenant agreed to special conditions for professional carpet cleaning and pest control at the end of the term – where she defaulted contending they were against the law – where a bond release order made in lessor’s favour – whether leave to appeal should be granted – whether appeal should be allowed.

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 13

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 53(1), 54, 171, 188, 216

Residential Tenancies Authority v Vespar Pty Ltd t/as Coral Sea Property Management (unreported, Mag Ct Townsville, 00208456/17(2); 00208452/17(7); 00208426/17(6); 00208468/17(1), 22/03/2018).

 
 
APPEARANCES & REPRESENTATION:
 
Applicant:
Ms Eising by phone
Respondent:
Mr GM Westgarth, Westgarth Realty Pty Ltd in person

REASONS FOR DECISION

[1] The applicant tenant was late filing so needs an extension of time as well as leave to appeal.

[2] The proposed ground is, in effect, that an adverse bond release order under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) is not a just and equitable one for resolving a tenancy dispute within s 13 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) because of interpretative or application error.

The context

[3] The applicant rented residential premises through the respondent agent. Carpets were professionally cleaned and the dwelling fumigated before entry. During the six (6) months term she kept four (4) inside dogs and a pet budgie.

[4] Section 188(4) RTRA Act as well as clause 37 of the general terms of agreement (GTA) obliged the applicant to leave the premises and inclusions (that is, anything left for the tenant’s use), as far as possible, in the same condition they were in at the start, fair wear and tear excepted.

[5] Also, under special conditions 1 and 3 she specifically “...acknowledges the carpets are to be professionally cleaned at the end of the tenancy or every 12 months” and “the premises to be fumigated by a professional fumigator”.

[6] Using specialist trade products from Bunnings the applicant chemically cleaned the carpets and treated the premises for pests before vacating but refused to comply with the special conditions based on legal advice that outgoing tenants in Queensland cannot be forced to pay for professional services or use a particular supplier.

[7] The respondent filed a minor civil dispute application on the lessor’s behalf for breach of end of tenancy terms claiming, among other things, reimbursement of the cost of the agreed services.

[8] The tribunal made no specific findings but enforced the special conditions as reasonable and in-line with trade practice. The Residential Tenancies Authority (RTA) was ordered to pay the claimed amount from the security bond and refund the balance.

The leave discretion

[9] Professional bond cleaning and pest control conditions are common in Queensland but in New South Wales a term having the effect that a leaving tenant must have the carpet professionally cleaned, or pay for the cost of it, cannot be included in the agreement except where pets have been kept on the premises.

[10] As I understand the situation in Tasmania the exit condition of carpets must be the same as the start so if it was professionally cleaned on the way in it should be professionally cleaned on the way out. In Victoria carpets need not be professionally cleaned unless it is a term of the lease. A professional carpet cleaning clause is only enforceable in the Australian Capital Territory if the carpet was professionally cleaned prior to the commencement of the lease.

[11] Goods and services conditions are unenforceable in South Australia but a landlord in Western Australia can legally require a tenant to have their carpet professionally cleaned on vacating as a term of the lease. Whether a tenant in the Northern Territory is required to steam clean the carpets when vacating depends on a comparison of the entry condition report with the exit report, considering fair wear and tear and an objectively reasonable level of cleanliness.

[12] According to RTA figures something like 240,000 tenancy bonds are refunded with more than 260,000 new ones lodged in Queensland every year and around 64 per cent of all QCAT disputes are over rental bond releases.[1]

[13] As there is ongoing uncertainty about the validity of professional carpet and pest conditions in residential tenancy agreements and the stated object of the QCAT Act is to ensure that tenancy laws are applied consistently and that like cases are treated alike it is desirable for the appeal tribunal to make a considered statement on the issue.

[14] To facilitate that the procedural time limit for applying for leave to appeal is extended as necessary and leave to appeal granted.

Supply of goods and services

[15] Section 171(1) RTRA Act forbids lessors and agents from compelling prospective tenants to buy goods and services from either them or someone else as a condition of accepting their tenancy application. The ban is plainly aimed at stopping lessors or agents from directing business to themselves or getting kickbacks from favoured suppliers and protecting vulnerable consumers against predatory trade practices.

[16] It potentially operates where agents give application forms containing standard non-negotiable goods and services terms to legally unsophisticated tenants unaware that they become bound immediately on acceptance of the completed application by the lessor.

[17] In Residential Tenancies Authority v Vespar Pty Ltd t/as Coral Sea Property Management,[2] for example, a property management agency in Townsville was fined $6,000 for routinely inserting a special condition mandating dry-cleaning of carpets, curtains and blinds by a registered professional to the satisfaction of the lessor/agent upon vacating.

[18] However, on its preferred reading, s 171(1) RTRA Act is not intended to stifle fair bargains and does not prohibit any goods and services agreements between lessors and tenants. That intention would have been signalled by a full stop inserted after “someone else”. Nor is there any assertion in this case that acceptance of the appellant’s tenancy application was contingent on the special conditions being agreed to. For this reason, its possible application on different facts is not considered in any depth.

Nominated suppliers

[19] Lessors may designate a person to arrange or make emergency repairs of the premises or inclusions under s 216 RTRA Act and can require the tenant to buy goods and services, including professional carpet cleaning and pest control, without committing RTRA Act offences, if (except for utilities) they do not nominate themselves or another person as the supplier contrary to s 171(2) RTRA Act. For this purpose, a firm or company is a person. The maximum penalty is 20 penalty units.

[20] Although a breach of s 171(2) RTRA Act does not automatically or explicitly invalidate the special conditions that intention is readily inferred and, in any event, illegality can be a good response to enforcement action at common law where no cause of action is regarded as arising out of a wrong (ex turpi causa non oritur actio).

[21] Moreover, RTRA Act compensation is a discretionary remedy and tribunal orders must be fair and equitable under s 13 QCAT Act and will seldom assist a dominant contracting party who relies on breaking a consumer protection law to prove a claim for relief.

[22] The special conditions in issue obviously use the adverb “professionally” and adjective “professional” to distinguish carpet cleaning and fumigation services supplied by a paid professional under a commercial transaction, on the one hand, from DIY providers, on the other.

[23] Although more than one construction is reasonably open when the text is read purposively and in context it is plain that the rule in s 171(2) RTRA Act is intended to prevent collusive or non-competitive practices for the financial gain of a particular “... person nominated by the lessor” or agent. On this basis, agreed terms referring to an unidentified member of a general class of service supplier such as a professional person are not illegal.

[24] Accordingly, unless they are invalid for some reason the appellant is bound by the special conditions.

Void conditions

[25] Under s 53(1) RTRA Act a tenancy agreement or term is void to the extent it purports to exclude, change or restrict the application or operation of the RTRA Act about what condition tenants must leave the premises in at the end of the tenancy. A special term is also overridden by 54(1) and (2) RTRA Act to the extent it is incompatible with a standard term dealing with the same subject matter.

[26] As already noted, the mandatory end of term obligation imported into the GTA by the RTRA Act requires the tenant to leave the premises and inclusions, as far as possible, in the same condition they were in at the start, fair wear and tear excepted.

[27] The key word “condition” denotes a state rather than a standard. The expression “as far as possible” means closely proximate. Ironically, “near” could be substituted for “far” without changing the sense. The phrase “the same” is a point of comparison so that the benchmark for the state the premises and contents must be left in is their entry condition.

[28] Compliance may extend to fixing broken fittings, mending torn curtains or painting damaged walls where necessary as well as detailed cleaning and pest eradication but it does not involve improving the state of the premises or its contents at the tenant’s expense for the landlord’s gain.

[29] Thus, exit conditions requiring a departing tenant to pay for steam cleaning curtains that were dirty or worn out to begin with are unenforceable because they conflict with the effect of s 188(4) RTRA Act and clause 37 GTA but not if hiring contractors to shampoo the carpet is needed on exit to remove stubborn stains or eradicate fleas or other bugs that were not there at the beginning.

[30] As the premises here were in the state of having been fumigated and included carpets cleaned by professionals at handover the special conditions merely contemplate the original condition of the premises being reinstated as far as possible not bettered. They amplify but do not purport to modify the terms of the RTRA Act and GTA.

[31] There was no evidence at the hearing that paying for professional fumigation and carpet cleaning services was impossible in the circumstances or that the appellant met the description of a professional herself. Therefore, regardless of how professional her job was the obligation in s 188(4) RTRA Act was not fully met because the premises that she handed back at the end of the tenancy were not in the same condition as far as possible as they were at the start.

[32] The position may be different if the premises and inclusions had not been professionally cleaned or fumigated before she rented them and were left, as far as possible, in the same condition without the help of professionally supplied services because the prediction at the beginning of the tenancy about what the premises would in fact need at the end to meet the s 188(4) RTRA Act or GTA obligation to restore them to their initial condition i.e. professional carpet cleaning and fumigation would be invalid and the special conditions based on it unenforceable.

[33] In this case, however, the special conditions are enforceable and the appeal fails.


[1] Residential Tenancies Authority v Vespar Pty Ltd t/as Coral Sea Property Management (unreported, Mag Ct Townsville, 00208456/17(2); 00208452/17(7); 00208426/17(6); 00208468/17(1), 22/03/2018).

[2] (unreported, Mag Ct Townsville, 00208456/17(2); 00208452/17(7); 00208426/17(6); 00208468/17(1), 22/03/2018).

Non profit affordable housing tenancies and Queensland law

QCAT appeal sourced 28 May 2019 austlii.edu.au

Coast2Bay Housing Group Ltd v Professionals Real Estate Caboolture/Morayfield [2019] QCATA 64 (14 May 2019)

Last Updated: 27 May 2019

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:
Coast2Bay Housing Group Ltd v Professionals Real Estate Caboolture/Morayfield (2019) QCATA 64
PARTIES:
COAST2BAY HOUSING GROUP LTD

(appellant)

v
PROFESSIONALS REAL ESTATE CABOOLTURE/MORAYFIELD
(respondent)
APPLICATION NO/S:
APL328-17
ORIGINATING APPLICATION NO/S:
MCDT402/017
MATTER TYPE:
Appeals
DELIVERED ON:
14 May 2019
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Ann Fitzpatrick
ORDERS:
  1. Leave to appeal is granted.
  2. The decision made 5 October 2017 is set aside.
  3. Application number MCDT 402 of 2017 is dismissed for want of jurisdiction.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where appeal from residential tenancy matter in QCAT’s minor civil disputes jurisdiction – where Residential Tenancies and Rooming Accommodation Act 2008 (Qld) does not apply to a headlease with a non-profit corporation subletting the premises to a person under an affordable housing scheme – where no QCAT jurisdiction

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 39(1)

Pickering v McArthur [2015] QCA 294

REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
APPEARANCES:
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

[1] The appellant seeks leave to appeal and to appeal a decision made by the Queensland Civil and Administrative Tribunal (‘QCAT’) on 5 October 2017.

[2] The grounds of appeal are that:

      <li "="">(a) QCAT did not have jurisdiction to decide the application by the respondent which was seeking termination of a lease and a warrant of possession pursuant to the
Residential Tenancies and Rooming Accommodation Act 2008
    (Qld) (‘RTRA Act’);<li "="">(b) By s 39(1) of the RTRA Act, the Act does not apply to an agreement relating to the letting of premises entered into by a non-profit Community Housing Provider, funded by the Department of Housing and Public Works, in relation to an affordable housing scheme.<li "="">(c) The appellant is a non-profit corporation funded by the Department of Housing and Public Works subletting premises as part of an affordable housing scheme.<li "="">(d) The tenant was not a party to the minor civil dispute proceedings before the Tribunal. The tenant is the legal tenant at the property located at 1 Tilley Court, Caboolture, however the tenant will not be named in the Warrant of Possession.<li "="">(e) Two other similar matters have recognized the Tribunal’s lack of jurisdiction namely Caboolture Claim T556/12 and T125/16.

[3] The appellant seeks an order that the decision to terminate the tenancy be struck out and that the Warrant of Possession be withdrawn and cancelled.

[4] By decision made 16 November 2017, an Appeal Tribunal ordered that the termination order made, and warrant issued on 5 October 2017, are stayed pending the outcome of the application for leave to appeal or appeal.

[5] The background to this appeal is that the appellant raised in its response and counter application to the original minor civil dispute application by the respondent, that the application should be struck out for want of jurisdiction.

[6] On 28 September 2017 a decision was made by the Delegate of the Principal Registrar of QCAT, to refuse to strike out the initiating application. No reasons were given. That decision was posted to the appellant and received shortly prior to the 5 October 2017 hearing.

[7] The appellant again raised the issue of jurisdiction with the Member at the 5 October hearing.

[8] The Member said that a decision had been made on the issue of jurisdiction and that it was not for him to go behind the decision where there had been no appeal.

[9] The Member did however consider submissions made by the appellant and determined the question.

[10] The Member noted that although the headlease before him referred to dispute resolution in the Magistrates Court, it also makes reference to procedures under the RTRA Act.

[11] The Member concluded that the headlease does not take away the operation of the RTRA Act in the circumstances. He concluded that the tribunal does have jurisdiction to hear the application. The Member made a termination order in relation to the tenancy agreement between the parties and issued a warrant of possession.

Leave to appeal and appeal

[12] By s 142(3)(a)(i) of the QCAT Act, an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction may only be made with leave of the Appeal Tribunal. Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice and where there is a reasonable argument that there is an error to be corrected.[1]

[13] Questions of jurisdiction are fundamental to the power of the Tribunal to determine matters and for enforcement of decisions. The issue raised by the appellant is serious. The appellant makes a reasonable argument that there is an error to be corrected. Leave to appeal is therefore granted.

[14] Determining the jurisdiction of the Tribunal is a question of law. By s 146 of the QCAT Act the Appeal Tribunal may confirm or amend the decision the subject of the appeal, set aside the decision and substitute its own decision, set aside the decision and return the matter to the tribunal or make any other order it considers appropriate.

Headlease

[15] The headlease comprises Part 1 Schedule and Part 2 Conditions. Part 1 sets out the parties and their addresses; the address of the leased premises, term and rental. The appellant is described as a CRS Organisation. CRS is not defined, but the appellant submits that the headlease was entered into under the Queensland Government’s Transitional Housing (CRS) Scheme.

[16] The headlease authorises the appellant as tenant under the headlease to sub-let the premises to a person pursuant to the CRS Scheme. The headlease provides at clause 30 that if a dispute arises between the head lessor and the CRS, then either party may give the other a Form 11 Notice to Remedy breach. I note Form 11 is a Form prescribed under the RTRA. Clause 30 provides that if a Notice to Remedy breach is not complied with, a party may apply for mediation or determination of the dispute by a Magistrates Court. Clause 33 provides the process by which the headlease agreement may be terminated including the giving of relevant notices to the appellant.

Submissions and findings

[17] The appellant submits that the respondent did not comply with the provisions of the headlease in relation to termination and simply proceeded to seek termination and a warrant for possession from the Tribunal. The method for terminating the lease is said to be contained in the headlease and the Property Law Act 1974 (Qld).

[18] The appellant submits that the Tribunal had no jurisdiction to hear and determine the claim.

[19] The appellant submits that the Tribunal is not empowered to deal with the respondent’s application because no jurisdiction is conferred by the RTRA Act as an enabling Act nor does the Tribunal have original jurisdiction to hear the matter as a minor civil dispute.

[20] In relation to the first argument it is submitted that the appellant falls within s 39(1) of the RTRA Act. The respondent does not make any submission in this regard and in particular does not submit that the appellant is not a non-profit corporation which entered into the headlease for the purpose of subletting the premises to a person under an affordable housing scheme. I am satisfied on the basis of the appellant’s submissions that the appellant is a non-profit corporation which sublet the premises under an affordable housing scheme.

[21] As a result by applying s 39(1) of the RTRA Act, I find that the RTRA Act does not apply to the headlease. It follows that an application for termination of a lease and a warrant of possession pursuant to the RTRA could not be decided by the Tribunal under that Act.

[22] As to whether the Tribunal could deal with the matter as a minor civil dispute under s 11 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), the Tribunal may exercise its jurisdiction if a relevant person has applied to the tribunal to deal with the dispute.

[23] The respondent does not fall within any relevant part of the definition of ‘relevant person’. The respondent was not seeking a debt or liquidated sum in the claim. Insofar as the respondent might be considered a ‘trader’, the definition excludes a person who lets to a tenant a dwelling for assigning or subletting the dwelling to someone else, as is the case in these circumstances.

[24] The respondent made no submissions in relation to this issue. I find that the Tribunal did not have jurisdiction to hear the matter as a minor civil dispute.

[25] The respondent’s principal argument is that it made application to QCAT in accordance with clause 30(b)(ii) of the headlease. Clause 30(b)(ii) specifically refers to an application to the Court. Court is defined in the agreement to mean the Magistrates Court nearest to the location of the premises. The respondent has misunderstood the agreement and commenced termination of lease proceedings in the wrong jurisdiction.

[26] The appellant makes further submissions that the Tribunal made errors of fact by finding that the respondent had followed the correct procedure in attempting to terminate the lease and evict the tenant. In view of my finding that the Tribunal had no jurisdiction to deal with the respondent’s application, it is futile to make findings in relation to questions of fact determined by the Tribunal. The questions of fact are not matters for QCAT.

Orders

[27] On the basis that QCAT has no jurisdiction to deal with application number MCDT 402 of 2017:
    <li "="">(a) the decision made 5 October 2017 is set aside;<li "="">(b) application number MCDT 402 of 2017 is dismissed for want of jurisdiction.

[1] Pickering v McArthur [2015] QCA 294, [3].