QCAT's jurisdiction in determining claims for unpaid rent

In this article, we consider a decision of the Queensland Civil and Administrative Tribunal, in its appellate jurisdiction, regarding a claim for unpaid rent and the Tribunal’s jurisdiction under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the RTRA Act).

Wallace v Hull [2024] QCATA 70

The Appellant was a former tenant of the Respondent, vacating the subject property in early 2022. On 1 July 2022, the Respondent filed in the Tribunal an application claiming $4,681 for unpaid rent as well as $15,156 for the cost of the cleaning the property ($1,360) and damage to the property ($13,796). At the hearing of the application in September 2022, the Appellant was ordered to pay the Respondent $4,998, being $4,681 for unpaid rent and $317 for the cost of the cleaning the property after the rental bond was offset ($1,400). The claim for damage to the property was rejected outright.

The Appellant filed an Application for Leave to Appeal or Appeal in the Tribunal on 12 October 2022.

The Appellant’s grounds of appeal raised two issues:

1. The Respondent failed to complete the dispute resolution process with the Residential Tenancies Authority (RTA) in accordance with section 416 of the RTRA Act, and failed to attach to the notice of unresolved dispute to the application; and
2. The claim for rent arrears by the Respondent was made outside the six-month time frame imposed by section 419 of the RTRA Act.

In disposing of the first issue, the Appeal Tribunal stated that the requirements of section 416 of the RTRA Act had been satisfied by the Respondent in this matter. The Respondent provided a dispute resolution request to the RTA and on 2 June 2022, the RTA wrote a letter stating that the dispute had been assessed as unsuitable for conciliation, as specified in section 416(1)(a)(i) of the RTRA Act. 

The Appeal Tribunal noted that the application form stated that the letter from the RTA had to be attached and that a non-urgent application can only be filed if a notice of unresolved dispute had been received from the RTA. In considering the RTRA Act and the Queensland Civil and Administrative Act 2009 (QCAT Act), the Appeal Tribunal stated that neither act requires the letter from the RTA to be attached to the application when filed. The Appeal Tribunal stated that, “Even if the approved form, properly interpreted, required the letter from the RTA to be attached, what was filed was still substantially in accordance with the Rules.” [1]

In relation to the second issue, the Appeal Tribunal noted that:

“It has been said that a failure to pay rent as it becomes due is a breach of the tenancy agreement, and that s 419(3) is a mandatory, substantive provision, not a mere matter of procedure that the Tribunal may relax.” [2]

The Appeal Tribunal considered the timeline relevant in establishing the rent arrears and the six-month time frame imposed by section 419(3) of the RTRA Act. The unpaid rent of $4,681 initially allowed by the Tribunal, accumulated between 4 October 2021 and 6 January 2022, when the Appellant vacated the property.  While the initial application was not filed in QCAT until 1 July 2022, the dispute resolution request to the RTA was lodged on 27 May 2022. In accordance with section 419(3) of the RTRA Act, the six-month period prior to this permits a claim of unpaid rent from 27 November 2021.

In respect of the claim for unpaid rent prior to 27 November 2021, the Appeal Tribunal considered that section 419(3) of the RTRA Act operates to prevent a claim for breach of agreement under section 419(2) of the RTRA Act. [3]

The Appeal Tribunal stated that:

“It follows that the Tribunal had no jurisdiction under the Act Chapter 6 Part 2 to order the appellant to pay that part of the outstanding unpaid rent to the respondent.” [4]

However, the Appeal Tribunal considered “there is more to it than that”. [5] The Appeal Tribunal considered section 4 of the RTRA Act, which preserves the rights and remedies of persons in respect of residential tenancies, except where they are inconsistent with the provisions of the Act. [6]

The Appeal Tribunal stated that:

“The mere provision by the Act of a jurisdiction in the Tribunal to hear and decide certain disputes, subject to certain requirements, does not mean that there is any relevant inconsistency with a right to pursue a remedy in respect of the same matter in another way, even if there are differences in how that remedy is pursued”. [7]

The Appeal Tribunal noted there is nothing in the RTRA Act making it “the only vehicle for landlord and tenant disputes, [8] nor any [provision] which gives the Tribunal exclusive jurisdiction in such disputes”. [9]

The Appeal Tribunal stated that, “Indeed, if the amount of unpaid rent which became payable prior to 27 November 2021 were deducted from the order to pay money in this case, it would be open to the respondent to sue in a court to recover that balance.” [10]

In turning to consider section 419(3) of the RTRA Act, the Appeal Tribunal considered that it operates to restrict the Tribunal’s jurisdiction to deal with a dispute regarding a breach of a tenancy agreement, rather than operate as a limitation period for any claim for unpaid rent. The limitation is on the application to the Tribunal, not the ability to recover unpaid rent. [11]

The Appeal Tribunal then considered a further complication:

“a person owed a specific sum of money payable under a contract in respect of a consideration which is executed, that is, which has been provided, has an action for debt as an alternative to an action for breach of contract”. [12]

The Appeal Tribunal was unable to identify anything in the RTRA Act, “which is inconsistent with a lessor’s bringing a claim for debt in the Tribunal to recover unpaid rent, just as such a claim can be brought in a court”. [13]

In considering the QCAT Act, the Appeal Tribunal stated that a claim in debt to recover unpaid rent remains a minor civil dispute, with the Tribunal’s jurisdiction to hear and decide such a matter being conferred by the QCAT Act itself. [14] 

In light of these findings, the Appeal Tribunal turned to the original application filed by the Respondent in the form for a “tenancy dispute”. The Appeal Tribunal considered that the application was still “made under the QCAT Act to deal with the dispute, so the Tribunal had jurisdiction to hear and decide the claim for unpaid rent due in the period prior to 27 November 2021, as a minor civil dispute.” [15]

The Appeal Tribunal stated that “Use of the wrong form is not fatal in the Tribunal, at least so long as the application substantially complies with the rules”. [16] While acknowledging the procedural differences between a tenancy dispute and minor debt claim, the Appeal Tribunal added that the “procedures of the Tribunal are sufficiently flexible for the procedural requirements under the QCAT Act and Rules to accommodate the claim for unpaid rent as a minor civil debt claim”. [17]

Conclusion

The Appeal Tribunal highlighted that it has “not had the assistance in this matter of submissions on either side of the question by a lawyer, as both parties were self-represented”, and it is therefore possible that its “analysis has overlooked some important point or decision to which my attention could have been drawn if I had had the benefit of submissions by lawyers for the parties”. [18]

Ultimately, and in the above circumstances, the Appeal Tribunal concluded that the Appellant does not have good grounds for appeal and therefore refused to grant leave to appeal.

Read another property management article: The eternal question: Damage or fair wear and tear?

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