QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION: 	Gould v Mazheiko & Gill [2020] qcata 10	
PARTIES:	leigha gould	
	(applicant/appellant)	
	v	
	elizavita mazheiko	
	(first respondent)	
	jerome gill	
	(second respondent)	
APPLICATION NO/S:	APL043-19	
ORIGINATING APPLICATION NO/S:	Noosa MCDT109/18	
MATTER TYPE:	Appeals	
DELIVERED ON:	31 January 2020	
HEARING DATE:	On the papers	
HEARD AT:	Brisbane	
DECISION OF:	Justice Daubney, President	
ORDERS:	1.	The applicant has leave to appeal.
2.	The appeal is dismissed.	
CATCHWORDS:	
LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – RENT – where the applicant was the tenant of a premises – where the respondents were the landlords – where the applicant made various complaints regarding the premises – where the applicant’s belongings were damaged – where the premises required carpet cleaning and pest control – where the landlord unlawfully entered the property – where the applicant applied to the Queensland Civil and Administrative Tribunal (‘QCAT’) for a reduction in rent or compensation after the conclusion of the tenancy agreement – where this application was dismissed – where the applicant applied for leave to appeal the decision of the Tribunal to the Appeal Tribunal of QCAT – whether the Tribunal erred in applying a six month time limit to the rent reduction regime under s 94 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRA Act’) – whether applications under s 94 of the RTRA Act must be made during the tenancy	

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i)
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), ss 94, 419, 420	

Bourke v Kenjad Rentals [2019] QCATA 81, followed
Champion & Anor v Laterma Pty Ltd & Ors [2018] QCAT 392, considered
Hurst v Pyatt [2017] QCATA 101, considered
Masinello v Parker & Anor [2013] QCATA 325, considered
Underwood v Queensland Department of Communities [2013] 1 QdR 252, applied	

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]	This is an application by Ms Gould for leave to appeal against the decision of the Tribunal in Noosa claim MCDT109/18.  In that application, Ms Gould had sought a total of $11,430 claimed as either a rent reduction under s 94 of the Residential Tenancies and Rooming Accommodation Act 2008 (‘RTRA Act’) or compensation under ss 419 and 420 for damaged belongings, carpet cleaning and pest control and in respect of unlawful entries by the landlord.  The matter came on for hearing before Acting Magistrate Hillan on 11 January 2019 and was struck out for want of jurisdiction. 
Preliminary
[2]	There has been no response in this matter from either of the named respondents who were the landlords under the tenancy agreement.  The male respondent, Mr Gill, appeared at the hearing at first instance along with the property manager, Jocelyn Rennex.  An earlier review of the file revealed that the application for leave to appeal had only been served on Ms Rennex who is not a party to this proceeding. 
[3]	By directions dated 1 August 2019, the Appeal Tribunal ordered Ms Gould to establish that the application had been given to Ms Mazheiko and Mr Gill in compliance with r 96 of the Queensland Civil and Administrative Tribunal Rules 2009.  Ms Gould filed an affidavit of service on 14 August 2019 in which she deposed that she had sent the application by email to Ms Rennex.  The affidavit annexed a chain of emails between Ms Gould and Ms Rennex evidencing Ms Gould’s attempts to obtain the contact details for the owner of the property in February 2019.  Ms Rennex did not disclose any contact details in her response but stated, “I have forwarded it to him Leigha”.  This email was forwarded to the Tribunal with a covering email from Ms Gould noting that both she and a lawyer acting on her behalf had requested the owner’s contact details but Ms Rennex had not provided them. 
[4]	The Appeal Tribunal is prepared to rely upon Ms Rennex’s statement that she had forwarded the application to the landlord and is satisfied that at least the male respondent had notice of the proceeding.  As no submissions for the respondent have been filed, the Appeal Tribunal has determined the application for leave to appeal on the basis of the applicant’s submissions and the original minor civil dispute file.
The decision below
[5]	Ms Gould’s claims under both s 94 and ss 419 and 420 of the RTRA Act were heard on 11 January 2019.  The Appeal Tribunal has before it a transcript of that hearing.  The transcript records the Acting Magistrate’s relevant findings on each  of the breaches complained of by Ms Gould as follows:  
94 is operational, provided that you take action within six months of becoming aware of it. Then you can take your action as you’ve done today for reduced – reduction of rent for certain things. I accept that you haven’t complied with 419 subsection (3) because the items that you’ve listed in your claim, you’ve become aware of prior to 16 [sic] months
…
I’ll accept that you have become aware of each and every one of those items prior to the six months period that you’re supposed to take action. So applying rule 419 subsection (3), I find that I have no jurisdiction to hear your claim. So therefore, under that section, your claim is struck out for want of prosecution. 
Leave to appeal
[6]	The appeal filed on 11 February 2019 alleges as the grounds of appeal errors of law, a denial of procedural fairness and errors of fact.  The submissions filed on 5 April 2019 appear to narrow the scope of the appeal to an error of law in the application of s 94.  While it is not expressly stated that the other grounds are abandoned, the so‑called errors of fact have never been detailed or particularised in any way and the denial of procedural fairness is in effect an extension of the alleged error of law, contending as it does that contents of the case were not considered or heard due to the decision on jurisdiction.  Accordingly, the Appeal Tribunal has proceeded on the basis that the only ground of the appeal is that the Acting Magistrate erred in declaring that there is a six month time limit to apply for a rent reduction under s 94.  
[7]	As this is an appeal against a decision in the Tribunal’s minor civil dispute jurisdiction, leave is required.  The point of law which the applicant seeks to agitate is a question on which there is some divergence among previous decisions of both the Tribunal and Appeal Tribunal.  
[8]	In Grace and Ors v Metrocity Realty and Ors, Masinello v Parker & Anor, and North South Real Estate & Anor v Kavvadas, the Tribunal and Appeal Tribunal respectively concluded that the 6 month limit did not apply to claims under s 94 and such claims could be brought after the termination of the lease.  Conversely, other decisions, including Hurst v Pyatt, Champion & Anor v Laterma Pty Ltd & Ors, and Bourke v Kenjad Rentals have found that such an application can only be brought during the tenancy. 
[9]	In light of that divergence, it is appropriate that the applicant have leave to appeal so that this point might be considered. 
Interpretation of s 94
[10]	Section 94 of the RTRA Act provides: 
94 Rent decreases
(1)	This section applies if the premises—
(a)	are destroyed, or made completely or partly unfit to live in, in a way that does not result from a breach of the agreement; or
(b)	no longer may be used lawfully as a residence; or
(c)	are appropriated or acquired compulsorily by an authority.
(2)	This section also applies if—
(a)	services, facilities or goods to be provided to the tenant under the agreement are no longer available or are withdrawn other than because the tenant failed to meet the tenant’s obligations under the agreement; or
(b)	the amenity or standard of the premises decreases substantially other than because of malicious damage caused by the tenant.
(3)	The rent payable under the agreement decreases accordingly or, if an order for a decrease in the rent is made by a tribunal, to the extent stated in the order.
(4)	A tribunal may make an order for a rent decrease only if—
(a)	the tenant applies to the tribunal for the order; and
(b)	if this section applies because of subsection (1)—the premises are partly unfit to live in.
[11]	At the outset, it should be noted that interpretation of this provision is not without difficulty.  Indeed, it has been said that sub-sections (3) and (4) potentially give rise to “awkward questions of construction”.  The issues with the drafting of this section have certainly played out in practice, with divergent decisions within the Tribunal on its application. 
[12]	In Grace and Ors v Metrocity Realty and Ors, Adjudicator Gordon, as he then was, held that the 6 month time limit under s 419 does not apply to s 94, relying in large part on the difference between the rent reduction regime under that section and the compensation regime under s 419.  Adjudicator Gordon went on state that the correct time limit for claims under s 94 appeared to be 6 years pursuant to s 10(1)(d) of the Limitation of Actions Act (Qld) 1974.  That decision was applied in Vessi v Howells.
[13]	In Masinello v Parker & Anor, Sessional Member Dr Forbes, sitting as the Appeal Tribunal, similarly found that there was no such time limit on a claim under s 94, relying on the express wording of the section which does not state that a claim must be brought within a particular time:
When section 94 is relied on, the time limit in section 419 is beside the point. The RTRAA does not state that a section 94 claim must be brought within a particular time, or while the tenancy is current, and I am not prepare to read such a proviso into the Act, unless and until authority compels me to do so. 
[14]	Both of these authorities, and the other cases which have followed them, conclude that the time limit under s 419 does not apply to claims brought under s 94.  That is not controversial.  There is certainly nothing in the RTRA Act which would justify grafting the time limit from one section onto another.  However, where the ‘contrary authorities’ have diverged is in regard to whether a claim can be brought after the termination of the tenancy.
[15]	In Hurst v Pyatt, Member Hughes was not satisfied that s 94 permits a ‘retrospective’ rent reduction.  Member Hughes referred to Campbell v Donker, where the Appeal Tribunal had previously held that s 94 permits a decrease of rent for a specific amount, rather than lump sum compensation calculated by the amount of the rent reduction and the period of time over which the amenity or the standard of the premises is decreased.  Member Hughes interpreted this to mean: 
In other words, s 94 only operates prospectively to allow a tenant to apply for a reduction in their rent while the tenancy continues or until the Lessor restores the loss of amenity.
[16]	In Champion, Adjudicator Alan Walsh agreed with this proposition and referred to the fact that s 94 is worded in the present and future tense, and not in the past tense, as further support. Adjudicator Walsh also placed weight upon the fact that s 94 is unaccompanied by a provision such as that in s 419 stating that the application for rent reduction might be made after the end of the agreement.  Adjudicator Walsh was clearly referring to s 419(4)(a), which states that an application for an order under s 419 may be brought during the term, or after the end, of the agreement.  He said: 
If the legislature had intended that an application for rent reduction could be filed after the end of a tenancy, months or years later, i.e. after discharge of the statutory tenancy contract by operation of law, it would have said so in the Act but did not.
[17]	In Bourke v Kenjad Rentals, Carmody J reached the conclusion that the tenant must apply for a rent decrease during the tenancy.  His Honour contrasted the purpose of the monetary compensation regime under ss 419 and 420 with rent relief under s 94, stating that the former provides a legal remedy for non-performance of breach of tenancy obligations regardless of loss of enjoyment, while rent reduction focusses on fairness not fault and derives from the restitutionary theory of unjust enrichment and the equitable doctrine of abatement, not the law of compensation.  His Honour considered that rent reduction is intended to be prospective and temporary.  The rent payable decreases to reflect the diminished amenity or standard of the premises, pending their remedy.  He said that ‘although it is not time limited, the right to apply [for a rent reduction] logically lapses with the obligation to pay rent’. 
[18]	I would respectfully align myself with the latter view.  In addition to the reasons given by the learned members in the decisions cited above, I would further add that, as a matter of logic, applications under s 94 must be limited to being made during the tenancy.  The legislative intention to limit compensation claims to 6 months is clear.  It cannot have been the legislature’s intention to provide a means by which the strict time limit under s 419 can be so easily subverted. 
[19]	Looking to the structure of the RTRA Act, s 94’s position in Chapter 2, Part 2 – Rent, Division 1 – Residential tenancy agreements would tend to support the view that it is intended to be used during the currency of the agreement.  Certainly, a failure to comply with s 94 could amount to a breach actionable under s 419, as many other provisions within this chapter can, but it would then be subject to the s 419 limit. 
Disposition
[20]	For those reasons, the Appeal Tribunal considers that a claim under s 94 may only be brought during the tenancy and not after a tenancy has expired or been terminated.  Accordingly, Ms Gould’s appeal cannot succeed.  Although the reason given for dismissing her s 94 claims was not correct, the outcome was.  Properly considered, the decision on Ms Gould’s claims would be that, as she made the application after the conclusion of the tenancy agreement, s 94 was not an avenue of claim open to her. If her claim had been made within 6 months, compensation under s 419 may have been, but that was not the basis on which her claim was made.  
[21]	For completeness, I should say that if had I reached a different conclusion on the interpretation of s 94, I would not have been inclined to allow the appeal.
[22]	That the making of an order under s 94 is discretionary is clear from the judgment of Muir JA in Underwood v Queensland Department of Communities, in which His Honour said: 
[28] … In my opinion, the making of an order under s 94 is discretionary. The wording of sub-section (4) is permissive: “A tribunal may make an order”. It is also implicit in sub-section (3) that an order for a decrease in the rent may not be made.
…
[30] If it is the case that a tribunal has a discretion whether to order a reduction of rent under s 94, the better view is that the tribunal may refrain from making an order reducing the rent if it would be unjust to make such an order. For example, it may be unjust for an order to be made where an application has been made late or a lessor has been prevented by the conduct of the tenant from ascertaining facts and circumstances relevant to the determination of whether there should be a decrease in the rent.
[23]	Ms Gould’s putative appeal would not have been maintainable because a retrospective rent reduction, even if permitted under the legislation, would not have been just in the present circumstances where she had been aware of the relevant issues for more than 6 months before making the application; in some cases, having known of some of them since the very beginning of the tenancy. Those were findings of fact made by the original decision-maker. Ms Gould has not challenged those and there is no reason for me to depart from them.  
Conclusion
[24]	For the foregoing reasons, leave to appeal is granted and the appeal is dismissed.  There will be orders to that effect.