QCAT: Counter-applications in residential tenancy disputes
By Alan Walsh, QCAT Adjudicator
What is a counter-application?
A counter-application is an application which the respondent files against the applicant or another party to a proceeding for a claim arising out of the same dispute or issue, and can also be filed against a person who is not yet a party to the proceeding.
When is a counter-application filed?
Counter-applications are usually filed in non-urgent residential tenancy disputes when an applicant’s conciliation request has concluded unsuccessfully, the Residential Tenancies Authority (RTA) has issued a Notice of Unresolved Dispute (a NURD), and an application in the ensuing proceedings has been served on the respondent.
The issuing of a NURD before proceedings commence is a jurisdictional requirement for all non-urgent residential tenancy claims.
Is conciliation a pre-requisite to filing a counter-application?
No, it is usually unnecessary for a prospective counter-applicant to separately request a further conciliation session before filing a counter-application.
A tenant wants the return of bond after the end of a lease and makes a residential tenancy application against an owner or agent who wishes in turn to make a claim against the tenant for rent or compensation which may be less than, or exceed, the bond amount. Conciliation has been unsuccessful.
Once served with the tenant’s application, the owner or agent must promptly file a counter-application together with copies of all relevant documents. This is served on the tenant and sets out what is claimed against the tenant and why. Only in exceptional circumstances will the tribunal waive this requirement.
This situation may of course be reversed. For example, when an owner or agent makes a claim against a tenant first who wishes in turn to make a counter-application.
Why is a counter-application necessary?
In this way, the tenant’s application and the counter-application of the owner or agent may be heard together at the same hearing. Each side knows exactly what is claimed against the other and why, and each side has an opportunity to prepare properly for the hearing with neither side taken by surprise. Natural justice and procedural fairness is afforded to the parties by this process.
Unless the Tribunal, for good reason, directs that the counter-application be heard separately at another time, the combined dispute between the parties may be quickly and finally resolved at one hearing.
The form and fees
Counter-applications are filed using Form 8 – Minor civil dispute – counter application.
A fee is payable when filing a counter-application unless a fee waiver is first obtained from the Tribunal Registrar in special hardship cases. The amount of the fee payable varies according to the amount claimed in the counter-application. Forms can only be lodged with QCAT in person or by post. Online services are not available. Access the QCAT website or contact QCAT for more information.
The consequences of not making a counter-application
A respondent who has a claim but does not make a counter-application for it will usually not be permitted to make a separate claim later in another proceeding in the Tribunal. This is what is called an Anshun estoppel at common law.
Essentially, this means that parties to a dispute have a duty to raise all claims between them in the one proceeding. The objective is to discourage multiple but separate proceedings at different times.
Independently of an Anshun estoppel, the Tribunal has the power to dismiss a claim where one party unnecessarily disadvantages another, for example, by making separate claims in multiple applications when they could all have been made in the one proceeding at the same time.