QCAT: Be Aware Of Limitation Periods

Drew Lauchland

17 Mar, 2013

A recent decision of the Queensland Civil and Administrative Tribunal (‘the Tribunal’) re-affirmed that time limits for bringing applications for compensation arising out of residential tenancy matters will be enforced.

In Place West Rentals v Brooks & Anor [2012] an application for not inconsiderable compensation was dismissed based on failure to file the application within the time limited under the Residential Tenancies and Rooming Accommodation Act 2008 (‘RTRA Act’).

A claim by a lessor or tenant for breach of the residential tenancy agreement must be made within six (6) months after the lessor or tenant becomes aware of the breach.

Briefly the facts were that the tenancy commenced on 4 March 2010. The tenancy terminated on 5 July 2011 when the tenants vacated the property.

On 1 May 2012 the agent, on behalf of the landlord, filed a minor civil dispute application in the Tribunal. The claim for compensation was for $4393.60, being for compensation in excess of the bond.

On 16 January 2012 a conciliation application (Form 16) was lodged with the Residential Tenancies Authority (‘RTA’). Since the bond had been released and applied to rental arrears, the RTA did not conduct conciliation.

The Tribunal Member conducting the hearing queried whether he had jurisdiction to determine the matter and in doing so had regard to section 419 of the RTRA Act, which provides:

419 Applications about breach of agreements

  1. This section applies if any of the following claim there has been a breach of a term of a residential tenancy agreement or a rooming accommodation agreement-
    1. a lessor or tenant under the residential tenancy agreement.
    2. a provider or resident under the rooming accommodation agreement.
  2. The lessor or tenant, or provider or resident, 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, or provider or resident, becomes aware of the breach.
  4. For a residential tenancy, the application may be made-
    1. during the term, or after the end, of the agreement; and
    2. whether or not an application for termination, or a termination order, has been made about the agreement; and
    3. whether or not a rental bond for the agreement is held by the authority when the application is made.

In this case, becoming aware of the breach was after the tenant vacated and the final inspection was conducted where it was ascertained that cleaning, painting, glass replacement etc. needed to be undertaken.

Therefore the application was dismissed on the basis that as section 419 of the RTRA Act provides that a claim by a lessor or tenant for breach of the residential tenancy agreement must be made within six (6) months after the lessor or tenant becomes aware of the breach, the claim was not filed within that six (6) month period.

However, the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’) provide that the Tribunal can provide relief from certain procedural requirements. That section states:

61 Relief from procedural requirements:

  1. The tribunal may, by order-
    1. extend a time limit fixed for the start of a proceeding by this Act or an enabling Act; or
    2. extend or shorten a time limit fixed by this Act, an enabling Act or the rules; or
    3. waive compliance with another procedural requirement under this Act, an enabling Act or the rules.
  2. An extension or waiver may be given under subsection (1) even if the time for complying with the relevant requirement has passed.
  3. The tribunal can not extend or shorten a time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding.
  4. The tribunal may act under subsection (1) on the application of a party or potential party to the proceeding or on its own initiative.
  5. The tribunal’s power to act under subsection (1) is exercisable only by-
    1. the tribunal as constituted for the proceeding; or
    2. if the tribunal has not been constituted for the proceeding—a legally qualified member, an adjudicator or the principal registrar.

This section was considered in the case and it was held that the provisions of section 61 did not give the Tribunal any power to extend the time in which the application had to be filed. The reason:

‘Although the Tribunal has a general power to extend time under section 61 of the QCAT Act, that provision must be read in conjunction with the provisions of the RTRA Act, the enabling Act, which confers jurisdiction on QCAT to deal with tenancy matters. Here, subsection 3 prescribes the period within which a compensation claim can be made. The language used is mandatory in that any application ‘must’ be made within the 6 months. The RTRA Act is prescriptive about the requirements for time frames in which Notices under the Act can be issued and when proceedings can be commenced.’

The effect was that the Tribunal found that it did not have the power to extend the time in which the application had to be filed, and accordingly dismissed the application.

However, please note the provisions of section 417 of the RTRA Act which provide:

417 Reference to making of tribunal application includes making of dispute resolution request

This section applies if-

  1. an application about an issue (the dispute issue) may be made to a tribunal by-
    1. the lessor or tenant under a residential tenancy agreement; or
    2. a provider or resident under a rooming accommodation agreement; and
  • under a provision of this Act, the question whether the application has been made is relevant to an issue.
  1. 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.

The effect of this section means that for the 6-month rule, it is taken that the rule has been complied with if an application had been made to the RTA for Dispute Resolution. That is taken to mean that in effect an application had been made to the Tribunal.

The moral of this – always issue your RTA Form 16 Dispute Resolution request at the termination of the tenancy – irrespective of whether the bond has been dealt with. If you do this, then you satisfy the requirements of the Act in commencing proceedings within 6 months of the breach.

 

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