Articles in Category: Property Management information

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


Tenancy database laws in Queensland

Queensland legislation

Read  Tenant takes database listing matter to Supreme Court - click to read the case

Disclosure to tenant requirements

The following information is an extract from Chapter 5 and 22 of the Property Management Excellence PME manual

5.1a     Requirements under the RTRA Act – tenancy database disclosure

It is a requirement under the RTRA Act that tenants be advised prior to application what tenancy database companies the agencies uses, the reason they use databases and how the tenant can contact the database operator.

A best practice form can be found at member online folder 05 Applications and processing and folder 22 tenancy databases.

Information from the RTA

What do property managers/owners have to tell prospective tenants when they are applying for a rental property?

458A Notice of usual use of database

From 1 July 2016, all property managers/owners must inform prospective tenants in writing:

  • The name of any tenancy database companies the manager/owner usually uses
  • the reason they use tenancy databases is to check a person’s rental history
  • How to contact the database operator

This form can be found at member online folder 05 Applications and processing and folder 22 tenancy databases.

Information about your application and tenancy databases

Tenancy databases are used to protect a property owner’s investment. However, unfair and old listings can disadvantage some people when they try to secure private rental housing.

What this means for you

As a property manager/owner, we are required by law to let you know which databases we use to check your rental history.

At (XYZ REAL ESTATE) we use the following tenancy databases:

·          

·          

·          

·          

What if I am listed?

If you are listed on a tenancy database that we use, we are required by law to let you know that you are listed, and provide you with the contact details of the database operator so you can find out information about your listing.

Where can I get further information?

If you would like more information about tenancy database laws you can visit the Residential Tenancies Authority website at rta.qld.gov.au or call 1300 366 311.

5.1b     Disclosure to tenant requirements if listed on a tenancy database

It is a requirement under the RTRA Act that agencies provide written disclosure to tenants if upon processing their tenancy application if it is found that they are listed on a tenancy default database. An example best practice form is below. A best practice form can be found at member online folder 05 application forms and processing and folder 22 tenancy databases. The agency has 7 days from being aware that a prospective tenant is listed on a database to inform them in writing that they are listed.

Information from the RTA.

What happens if a listing is found on a tenancy database?

458B Notice of listing

From 1 July, 2016, if the property manager/owner finds a listing about a prospective tenant, they must inform the tenant in writing and within seven days:

  • That there is a listing about the person
  • Details of who made the listing (if contained in the database)
  • The name of the tenancy database
  • How the prospective tenant can contact the database operator to get information about any listing (20 penalty units).
  • How the person can get a copy of the listing
  • How they can have the listing removed or amended (20 penalty units).

 Example form can be found at member online folder 05 application forms and processing and folder 22 tenancy databases.

Notice of tenancy database listing

(To be given to prospective tenants by the property manager / owner to comply with SS 458B, 459C of the Residential Tenancies and Rooming Accommodation Act 2008).

You were previously advised that when (XYZ Real Estate) reviews a prospective tenant application for a property, we check the applicant’s rental history by using the following tenancy databases:

·          

·          

·          

·          

Our search has found that your personal information is recorded in a tenancy database.

 Who listed me on the database?

 ☐ The information on the database was listed by (xyz real estate/property manager/owner) on (date of listing).

☐ There are no details contained in the tenancy database about the person who listed you.

What can I do now?

 You can obtain a copy of the listing by contacting (XYZ database service) at (contact details) 

  1. Please note that you must put your request in writing. The database operator is required by law to give you the information within 14 days after the written request is made. The database operator is able to charge you a reasonable fee for providing the information to you.
  2. ………………………………………………………………………………………
  3.  
  4. You can also obtain a copy of the personal information recorded on the database from the person who originally listed you, being (listing officer’s name) at(contact details)
  5.  

………………………………………………………………………………………………….

 Please note that you must put your request in writing. The lessor or lessor’s agent who listed the personal information is required by law to give you the information within 14 days after the written request is made. The lessor or lessor’s agent is able to charge you a reasonable fee for providing the information to you.

How can I have the listing removed or amended?

If you disagree with the information listed about your rental history and would like the information amended or removed you can talk to the listing person and try to reach an agreement. If that fails, you can:

  • Lodge a Dispute resolution request (Form 16) with the Residential Tenancies Authority who can assist in attempting to negotiate an agreement about a listing, or
  • Apply to the Queensland Civil and Administrative Tribunal for an order stating that a person must have the tenant’s name or other personal information removed or make changes as appropriate.

Please note that an application about a listing that contravenes section 459 of the Residential Tenancies and Rooming Accommodation Act 2008, must be lodged with the Tribunal within six months of the tenant becoming aware of the alleged breach.

Where can I get further information?

 If you would like more information about tenancy database laws you can visit the Residential Tenancies Authority’s website at rta.qld.gov.au or call 1300 366 311.

22.1 Reasons to list a tenant a defaulting database

What are the approved reasons a tenant can be listed on a tenancy database for?

A tenant named on the tenancy agreement can only be listed after the tenancy has ended in one of the following circumstances:

Amount owing

Tenants may be listed where the agreement has ended and the amount owing exceeds the rental bond, and:

  • The money owed under a conciliation agreement or Tribunal order is not paid on time, or
  • They have been served with a Notice to remedy breach (Form 11) for rent arrears and have failed to remedy the breach, or
  • After abandonment of the property, unless the dispute is currently subject to a Tribunal determination.

If no rental bond has been charged, a person cannot be listed unless the amount owed is more than the equivalent of one week’s rent, plus any amount of tenancy guarantee.

Objectionable behaviour

A tenant can be listed for objectionable behaviour where the Tribunal has terminated the tenancy agreement for that reason.

Repeated breaches

A tenant can be listed for repeated breaches where the Tribunal has terminated the tenancy agreement for that reason.

 22.2 What must occur prior to a tenant being listed on a defaulting database

What rules do you have to follow before a person can be listed?

S459 Restriction on listing

A person can only be listed on a tenancy database if they are:

  • Named as a tenant on the tenancy agreement
  • Only when the tenancy agreement has ended
  • For approved reasons: see What are the approved reasons for tenancy database listings?

The property manager/owner must:

  • Give the tenant a copy of the proposed listing, or make reasonable attempts to inform them of the proposed listing
  • Allow the person/s you are listing 14 days to review the personal information and make a submission objecting to its entry into the database (unless it is publicly available court or tribunal records; or is amending inaccurate, incomplete, ambiguous or out of date listings)
  • Consider any objections the person has about the proposed listing, such as its accuracy, completeness or clarity (20 penalty units).

The property manager/owner must not:

  • Charge a fee for giving the proposed listing to the tenant
  • List information that they know is inaccurate, incomplete, ambiguous or out of date (20 penalty units).

A best practice letter for this procedure can be downloaded from member online folder 22.

22.3     Requirements to give tenants copies of database listings

Property managers/owners who have listed tenants must give the tenant a copy of the listing within 14 days of being asked in writing for a copy by the tenant (20 penalty units). A reasonable fee may be charged for giving the information.

Database operators must give the tenant a copy of the listing within 14 days of being asked in writing for a copy by the tenant (20 penalty units). A reasonable fee may be charged for giving the information.

Any fees charged must not be excessive and must not be for lodging a request for accessing the information.

 

 

 

 

22.3a Requirements about quality of listings

What are the requirements around the quality of listings?

459A Ensuring quality of listing – lessors and lessor’s agents

Tenants can challenge listings on the basis they are:

  • Inaccurate, where the information indicates the person owes an amount but the person no longer owes the amount and had paid it more than three months after it became payable.
  • Incomplete,
  • Ambiguous, or
  • Out of date, where the information indicates the person owes an amount, but the person no longer owes the amount and had paid it within three months after it became payable, or was made on the basis of a tribunal order which has subsequently been reopened or appealed, or set aside.

Tenants should contact the person who made the listing, and ask them to amend inaccurate, incomplete or ambiguous listings, or to remove out of date listings. The listing person must amend or remove the listing within seven days of being advised. Database operators must amend or remove the listing within 14 days of being advised of inaccurate, incomplete, ambiguous or out of date listings. There are penalties for not doing this.

If necessary, the tenant can apply to QCAT for an order to have the listing amended or removed.

22.3b   What happens if the circumstances about the listing change?

What happens if the circumstances around the listing change?

If the property manager/owner becomes aware that the details of the listing are inaccurate, incomplete, ambiguous or out of date, they must within seven days:

  • Inform the database operator in writing of how the information must be amended so it is no longer inaccurate, incomplete or ambiguous, and
  • Inform the database operator in writing of listings that must be removed because they are out of date.
  • Keep a copy of the notice they give the database operator for one year (20 penalty units).

This is not necessary if they amend or remove the information in the database themselves within seven days of becoming aware the details of the listing are inaccurate, incomplete, ambiguous or out of date.

22.3c   What database operators have to do

By 1 January 2017, database operators must have removed all listings which are, at that stage, three years or older.

From 1 July 2016, database operators must:

If a property manager/owner advises a database operator that a listing is inaccurate, incomplete or ambiguous (but not out of date), the database operator must amend the information within 14 days of being given the notice (40 penalty units).

If the database operator is advised by a property manager/owner that the listing is out of date, the database operator must remove the information within 14 days of being given the notice (40 penalty units).

459C Providing copy of personal information listed

  • Provide a copy of the personal information listed on their database within 14 days of a written request (where a fee has been asked for and been paid)
  • If a fee has been charged by the property manager/owner it must not be excessive and must not be for simply applying to lodge a request for the information
  •  

459D Keeping personal information listed

  • Database operators must not keep listings for longer than three years (40 penalty units).
  • IMPORTANT: By 1 January 2017, database operators must have removed all listings which are, at that stage, three years or older.

22.3d   Victims of domestic or family violence protections

 

Are there any additional protections for victims of domestic and family violence?

Victims of domestic and family violence can apply to QCAT for an order not to be listed on a tenancy database, or to have a listing removed, due to any breach of the tenancy agreement arising from an act of domestic or family violence.

This does not prevent the perpetrator of domestic and family violence from being listed on a tenancy database if other listing criteria has been met.

 

22.4 Record keeping for listing of tenants

Property managers must retain either a manual of listed tenant details or an electronic folder of the reasons and evidence for listing a tenant on a default database.

Records should be kept under the tenant’s last name; if more than one tenant, double records are required to be kept.

For example, if two named tenants on an agreement have defaulted with the last name Holt and Marsh, two identical folders would have to be created; one for Holt and one for Marsh.

Ensure the records are easily retrievable if the event that a tenant disputes a listing made and that sound evidence is able to be produced for the listing if required in the future. A best practice document that can used as a manual or electronic file can be found at member online.

22.5 Common providers of database services

Three common providers to the industry of tenancy default databases are;

TICA (Tenancy Information Centre of Australia)

NTD (National Tenancy Database)

Barclay MIS (Database and Debt recovery)

22.6 What are the penalties for breaching tenancy database laws?

Breaches of the laws carry a penalty of between 20 and 40 units per offence ($121.90 per unit) for individuals. Corporations found guilty could face fines 5 times that amount.

Landlord escapes liability - District Court finds against managing agent for a tenant’s fall

Barry.Nilsson. Lawyers logo

Mariella Kapetina

AustraliaUSA March 12 2019

The District Court of NSW recently found the owner and managing agent of residential premises were joint tortfeasors, liable for an injury occurring on the premises, and apportioned 100% of liability to the managing agent.

In Issue

  • Whether the property owner and managing agent breached their duties of care to a tenant of residential premises.
  • Claims for indemnity and contribution between the property owner and managing agent pursuant to contract and apportionment legislation.

The Background

At approximately 6.00 am on 2 August 2015, the plaintiff fell whilst descending an unlit internal stairwell in the common area of her rental premises. The plaintiff sustained a left foot fracture and brought proceedings against the owner and managing agent, who filed cross-claims against each other.

Complaints had been made to the managing agent by a tenant on 12 May 2015 (the first complaint) and 10 July 2015 (the second complaint), to the effect that the stairwell lighting was not working. The managing agents failed to inform the owner of the second complaint or take adequate steps to rectify the issue.

The Decision at Trial

The owner contended that they had delegated their duty of care to the managing agent and therefore were not liable for the plaintiff’s accident.

The managing agent argued that the evidence established they had engaged an independent contractor to repair the lighting after the second complaint, and prior to the accident, and were therefore not liable. They also sought an indemnity from the owner pursuant to the terms of a standard managing agency agreement.

The court held that the owner did not delegate all of their inspection and maintenance responsibilities to the managing agent in circumstances where the managing agency agreement required the owner to approve all non-urgent and non-emergency maintenance and repair. Accordingly, the owner was liable for failing to take simple precautions to deal with the lighting issues that arose. Further, in circumstances where the owners knew there had been a history of the lights malfunctioning, the court also found the owner was negligent in failing to make enquiries with the managing agent as to the cause of the lighting problems after the first complaint.

The court rejected evidence presented by the managing agent that they had arranged an electrician to repair the lights after the second complaint and prior to the plaintiff’s accident. As such, the managing agent also breached their duty of care to the plaintiff for failing to take steps to deal with the risk posed by the unlit stairwell after the second complaint was made.

The court rejected the managing agent’s attempt to rely upon an indemnity clause in the managing agency agreement, which provided for the owner to indemnify the managing agent for claims in the course of or arising out of the proper performance or exercise of the managing agents’ powers, duties or authorities under the agreement. Consistent with previous case law, the court found the contractual indemnity did not extend to claims arising out of the managing agent’s failure to properly perform its contractual obligations.

In assessing apportionment pursuant to the Law Reform (Miscellaneous ProvisionsAct 1946 (NSW), the court held that the managing agent’s respective culpability was so dominant that 100% of liability should be apportioned to the managing agent and 0% to the owner. Various factors influenced this including that the managing agent was aware of the second complaint but failed to notify the owners of this, were in a far better and effective position than the owner to take effective action against the risk of harm posed by the lighting problem, and had the last opportunity to avoid the plaintiff’s accident.

Implications for you

The decision illustrates that a property owner may not fully delegate all inspection and maintenance obligations to a managing agent, depending upon the terms of the agency agreement. However substantial contribution, and even in some cases a complete indemnity, might be available from a managing agent pursuant to apportionment legislation.

Than v Galletta & Ors (2019) NSWDC 9 

Barry.Nilsson. Lawyers - Mariella Kapetina

RTA prosecution

Sourced from www.rta.qld.gov.au 8th August 2018

Getting your agreements "Wright"

Stuart James Wright, the principal licensee of Three Sista’s Pty Ltd, pleaded guilty to 17 offences, which included using the wrong tenancy agreements, unlawful eviction and falsifying documents. Magistrate Luxton fined Wright $16,000, ordered him to pay costs of $2,350, and recorded convictions.

“The offending is protracted and the victims of these offences were vulnerable tenants with somewhat limited financial means,” Magistrate Luxton said.

“This type of offending behaviour must be denounced and discouraged…the intent of the legislation is to put in place a system where the rights of both tenants and property owners are protected.”

Magistrate Luxton noted that directors had an obligation to ensure that the correct agreements were being entered into with the tenants. In Mr Wright’s case, tenants were signed up to rooming accommodation agreements for self-contained units, instead of residential tenancy agreements as required by the Act. The significance of this was that the two different agreements altered tenants’ rights dramatically in certain situations.

For example, general tenancy agreements require seven-day notice periods to remedy any breaches, followed by a further seven-day notice period to vacate, after which an order by the Queensland Civil and Administrative Tribunal is required should the tenant refuse to vacate. This differs significantly to rooming accommodation agreements, which allow for tenants to be evicted immediately under certain circumstances.

Unlike general tenancies, rooming accommodation agreements can occur when a resident: has a right to occupy 1 or more rooms, does not have a right to occupy the whole of the premises in which the rooms are situated, does not occupy a self-contained unit, and shares other rooms, or facilities outside of their room (with 1 or more of the other residents).

In Wright’s case, tenancies that should have ordinarily fallen under general tenancy agreements were incorrectly treated as rooming accommodation.

Over the past year, the RTA has initiated more PINs and prosecutions than ever before due to a pattern of re-offending and disregard for compliance requirements.

RTA Chief Executive Officer Jennifer Morgan said that agents must ensure they are completing forms and documentation correctly, and fully. “Documentation is key, and the RTA will consider prosecuting individuals or companies found to have provided false and misleading information to the RTA and parties to the tenancy agreement,” she said.

“There is a common misconception among some real estate agents that offences under the Act are civil matters. The RTA would like to make it clear that these matters are criminal offences that are prosecuted through the Magistrates Court.”

If found guilty, a criminal conviction may be recorded by the court, and this could impact an agent personally, such as when they go to renew their licence.

Read more about penalties, prosecutions and offences relating to the Act, or call the RTA on 1300 366 311.

Residential sales training - Qld rental laws

An hour and a little bit more of power private training session

The RTRA Act sets out the ‘rules of entry’ for rental property in Queensland. Breaching rules of entry provisions are penalty unit provisions if investigated and or prosecuted by the Residential Tenancies Authority (RTA). This great active presentation by Stacey Holt can greatly assist salespeople and administrators of the laws relating to sales and rental property in Queensland.

Contact us for a no obligation proposal for private training services

Topics of the session are as follows;

Salespeople and rental property

Disclosure to tenants prior to commencing tenancy

When a Form 10 Notice of intention to sell should be given to tenants – the law

Entry requirements to access rental property

Handing out of keys to salespeople

If a rental property goes on the market for sale in the first 2 months of a tenancy

If a tenant refuses entry to show buyers through

Notice periods for entry and how to calculate notice periods

Notice periods expiring on a weekend or public holiday

Building and pest inspections and sales

Taking photos

Open homes and onsite auctions

Notice periods for vacant possession for a contract of sale

Transfer of the tenancy by the lessor

Listing a property for rent that has not yet settled

The RTRA Act and contract of sale – the seller becomes the tenant

QCAT to hear a tenant claim of over $80000

Queensland

In what is a landmark decision in my view, Justice Daubney, President of QCAT, has handed down an appeal decision allowing a tenant claim for a hot water system water leak of over $80 000 to be heard in QCAT.

QCAT has a prescribed amount of matters to be heard of up to $25 000; this published appeal now changes that due to ‘law’ and the relevant sections of the Act discussed during this case.

The matter was originally heard in QCAT and was dismissed to be heard in the Magistrates Court due to the amount being claimed against the lessor by the tenant; the appeal overturns that decision and allows the matter to proceed back to QCAT to be heard. Scroll down to review the case, and or download PDF version here

Members of Real Estate Excellence; I shall provide more information in the June member update service which will be released early due to this matter. June Real Estate Excellence member update online as at 15th May 2018.

Avery v Pahwa [2018] QCATA 53 (10 May 2018)

Last Updated: 10 May 2018

CITATION:
Avery & Ors v Pahwa & Anor 2018 QCATA 53
PARTIES:
Peter John Avery
(First Applicant)
Jill Lesley Avery
(Second Applicant)

Benjamin John Avery
(Third Applicant)

v
Suresh Pahwa
(First Respondent)
Lynnette Pahwa
(Second Respondent)
APPLICATION NUMBER:
APL148-17
MATTER TYPE:
Appeals
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Justice Daubney, President
DELIVERED ON:
10 May 2018
DELIVERED AT:
Brisbane
ORDERS MADE:
  1. The applicants have leave to appeal.
  2. The appeal is allowed.
  3. The decision of 11 April 2017 transferring the matter to the Magistrates Court at Southport for further hearing is set aside.
  4. The matter is otherwise remitted to the Tribunal at Southport for further hearing.
CATCHWORDS:
APPEALS – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – application for compensation – where compensation sought is in excess of prescribed amount – whether Tribunal has jurisdiction when claim over $25,000

Queensland Civil and Administrative Tribunal Act 2009, s 11, s 13
Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009, s 94
Residential Tenancies and Rooming Accommodation Act 2008, s 516

Hough v Department of Housing and Public Works [2012] QCAT 579
North South Real Estate & Anor v Kavvadas [2017] QCAT 306

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 applicants were the tenants of a unit owned by the respondents at Main Beach on the Gold Coast. On 13 September 2016, there was a leak from the unit’s hot water system. The applicants claim that a considerable amount of their personal property was damaged as a consequence of that leak. The applicants also contend that they were not able to use several of the bathrooms in the unit for a considerable period during their tenancy and also that the property was afflicted by mould issues.
[2] On 10 March 2017, the applicants filed an “application for minor civil dispute – residential tenancy dispute” in the Tribunal. Relevantly, the application sought orders under the Residential Tenancies and Rooming Accommodation Act 2008 (“RTRAA”) for the payment of money or compensation totalling $88,173, comprising $56,923 for the damage to property and $31,250 for “rent reduction”.
[3] On 10 April 2017, the application came on before a QCAT Adjudicator at Southport. The adjudicator took the view that, because the amount claimed by the applicants was more than $25,000, it was beyond QCAT’s jurisdiction. The adjudicator referred the matter to a Senior Member of the Tribunal with a recommendation that the matter “be heard by a Magistrate with jurisdiction to hear the claimed amount”. Consistent with that recommendation, a decision was then formally made that the application “be transferred to the Magistrates Court at Southport for further hearing.
[4] On 8 May 2017, the applicants filed an “application for leave to appeal or appeal” in respect of the decision to transfer the matter to the Magistrates Court.
[5] Put simply, the question raised is whether QCAT has jurisdiction in a “tenancy matter”,[1] where the amount claimed exceeds $25,000, which is the “prescribed amount” for a minor civil dispute under the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).
[6] Differing views about this question have been expressed in a number of QCAT decisions. In Hough v Department of Housing and Public Works,[2] it was decided that, on a proper construction of the RTRAA and the QCAT Act, there was no such monetary limitation on QCAT’s jurisdiction in tenancy matters. A contrary approach, however, was adopted in North South Real Estate & Anor v Kavvadas.[3] Given that divergence, it is clearly appropriate for the applicants to have leave to appeal so that this discrete issue might be settled.
[7] In the QCAT Act, “minor civil dispute” is defined in Schedule 3 to mean, amongst other things, “a tenancy matter”. “Tenancy matter” is defined in Schedule 3 as “a matter in relation to which a person may, under the [RTRAA] apply to the tribunal for a decision”.
[8] Section 11 of the QCAT Act confers jurisdiction on the Tribunal to hear and decide a minor civil dispute. Section 13(1) provides that, in a proceeding for a minor civil dispute, the Tribunal must “make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute but may, if the tribunal considers it appropriate, make an order dismissing the application”. However, that general power is circumscribed by section 13(2) which relevant provides:

“(2) For subsection (1), the tribunal may make only the following final decisions to resolve the dispute –

...

(b) for a tenancy matter – a decision the tribunal may make in relation to the matter under the [RTRAA].”

[9] Section 13 then goes on:

“(3) However, the tribunal can not make an order or decision under subsection (2) that –

(a) purports to require payment of an amount, performance of work or return of goods of a value of more than the prescribed amount; or

(b) purports to grant relief of a value of more than the prescribed amount from the payment of an amount; or

(c) combines 2 or more orders mentioned in subsection (2)(a)(i) to (iv) and purports to award or declare entitlements or benefits (or both) of a total value of more than the prescribed amount.

(4) Subsection (3) does not apply to –

(a) a claim for repair of a defect in a motor vehicle under the Motor Dealers and Chattel Auctioneers Act 2014, schedule 1, section 13; or

(b) a tenancy matter; or

Note –

See the Residential Tenancies and Rooming Accommodation Act 2008, section 516 for tenancy matters involving amounts greater than the prescribed amount.

(c) a claim that is the subject of a dispute under the Building Act 1975, chapter 8, part 2A.

[10] The “prescribed amount” referred to in section 13(3) is $25,000.[4]
[11] Directly relevant for present purposes is section 13(4)(b) which expressly provides that the monetary limitation imposed on QCAT’s minor civil dispute jurisdiction by reference to the “prescribed amount” does not apply to a tenancy matter.
[12] Section 13(4)(b) also expressly calls up consideration of section 516 of the RTRAA.[5] Recalling that, for the purposes of the QCAT Act, a “tenancy matter” is one in which a person may, under the RTRAA, apply to QCAT for a decision, applications to QCAT under the RTRAA are dealt with in Chapter 6 Part 2 of the RTRAA. It is unnecessary for present purposes to traverse the broad range of applications which may be made to the Tribunal under the RTRAA, but is sufficient to note that a tenant under a residential tenancy agreement may apply to QCAT for an order about a breach of a term of a residential tenancy agreement under section 419. Section 420 then nominates a range of orders which the Tribunal is empowered to make on an application about a breach of a residential tenancy agreement, including an order for the payment of money and an order for compensation.
[13] Section 516 of the RTRAA provides:

“(1) This section applies to an application if –

(a) a provision of this Act provides that the application may be made to a tribunal; and

(b) the application seeks the payment of an amount (the application amount) greater than the prescribed amount under the QCAT Act.

(2) In a provision of this Act about the application, a reference to a tribunal is taken to be a reference to a court with jurisdiction for the application amount.

(3) A provision of this Act about the application applies with necessary changes as if the tribunal were the court.”

[14] Section 516(1)(b), clearly contemplates an application being made to the Tribunal which seeks payment of an amount greater than “the prescribed amount under the QCAT Act”, i.e. $25,000.
[15] The following subsections of section 516 then facilitate the conferral of jurisdiction on QCAT to make orders as if QCAT were a court which otherwise has jurisdiction with respect to the amount sought in the respective application. In other words, section 516 confirms QCAT’s jurisdictional capacity to make orders under the RTRAA for monetary amounts which would otherwise exceed the “prescribed amount” limit applicable to minor civil disputes.
[16] Lest it be considered that there is any ambiguity about the interpretation of section 516, regard may be had to the Explanatory Note to the Residential Tenancies and Rooming Accommodation Bill 2008 which relevantly stated:[6]

“Clause 516 provides that, where an application to a tribunal is for an amount greater than that allowed under the Small Claims Tribunals Act 1973, the relevant tribunal is to be considered the Court with jurisdiction for the application amount.”

[17] After the passing of the RTRAA, the small claims jurisdiction was effectively folded into QCAT’s jurisdiction. In 2009, with the establishment of QCAT, the definition of “tribunal” in the RTRAA was amended so as to refer to QCAT rather than the Small Claims Tribunal.[7]
[18] Accordingly, I would hold that QCAT has jurisdiction in a “tenancy matter” (as that term is defined in the QCAT Act) where the amount claimed exceeds the “prescribed amount” of $25,000.
[19] It follows that the decision to transfer the application to the Magistrates Court was made in error and the appeal should be allowed.
[20] There will be the following orders:

1. The applicants have leave to appeal.

2. The appeal is allowed.

3. The decision of 11 April 2017 transferring the matter to the Magistrates Court at Southport for further hearing is set aside.

4. The matter is otherwise remitted to the Tribunal at Southport for further hearing.


[1] As that term is defined in the Queensland Civil and Administrative Tribunal Act 2009.

[2] [2012] QCAT 579.

[3] [2017] QCAT 306.

[4] See definition of “prescribed amount” in QCAT Act, Schedule 3.

[5] The “note” in section 13(4)(b) is part of the QCAT Act – Acts Interpretation Act 1954, section 14(4).

[6] At pages 78 – 79.

[7] Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009, section 94.

 

sourced from www.austlii.edi.au May 14 2018