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  • Unreported Judgment

Martin v Chadia Chalmers Realty Pty Ltd

 

[2020] QCATA 164

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Martin & Anor v Chadia Chalmers Realty Pty Ltd [2020] QCATA 164

PARTIES:

ARJAY RASE MARTIN

JANICA JOHANNA LEPPANEN

(applicant) 

 

v

 

CHADIA CHALMERS REALTY PTY LTD

(respondent)

APPLICATION NO/S:

APL011-20

ORIGINATING APPLICATION NO/S:

MCDT1537/19

MATTER TYPE:

Appeals

DELIVERED ON:

8 December 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

  1. The application for miscellaneous matters filed by the applicant on 12 March 2020 is dismissed.
  2. The application for miscellaneous matters filed by the applicant on 19 March 2020 is dismissed.
  3. Leave to appeal is refused.
  4. The stay of the decision is lifted.
  5. The Warrant of Possession issued on 9 December 2019 is re-instated to take effect on 28 January 2021 and remain in effect for 14 days, to expire at 6.00pm on 12 February 2021.
  6. The Warrant of Possession is to be executed as soon as reasonably practicable after taking effect.
  7. Entry under the Warrant of Possession shall only be between the hours of 8.00am and 6.00pm.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – OTHER CASES – whether Tribunal erred in not allowing discovery of documents - where Tribunal refused to adjourn urgent tenancy hearing - where allegation of denial of natural justice – where Tribunal has mandate to deal with matters quickly – where applicant was given opportunity to present case and rebut respondent’s case – where appellant had obligation to prove its case – where appellant was given natural justice within context of Tribunal’s minor civil disputes jurisdiction

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – interference with findings of Tribunal below – functions of appellate tribunal – where no valid ground of appeal raised – where findings open on evidence – where no reasonably arguable case of Tribunal in error – where no reasonable prospect of substantive relief on appeal – where speculative allegation of bias

LANDLORD AND TENANT - TERMINATION OF  THE TENANCY – GENERALLY - where residential tenancy terminated for failure to leave – where Tribunal has broad discretionary power – where no appellable error shown

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 13, s 28, s 121

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 43

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 206, s 292, s 293, s 341, s 349

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Armstrong v Kawana Island Retirement Village [2011] QCATA 324

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39

Brownie & Anor v Penfold [2013] QCATA 182

Cachia v Grech [2009] NSWCA 232

Cavalliotis v Rizio & Anor [2013] QCATA 201

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Coulton v Holcombe (1986) 162 CLR 1

Creek v Raine & Horne Mossman [2011] QCATA 226

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Elshohna v Property Pursuit [2019] QCATA 57

Fox v Percy (2003) 214 CLR 118

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

Gollan v Vaccaneo [2013] QCATA 228

House v The King (1936) 55 CLR 499

In re W (an infant) [1971] AC 682

King v ASIC [2018] QCA 352

Kioa v West (1985) 159 CLR 550

Lovell v Lovell (1950) 81 CLR 513

Lowe v Aspley [2010] QCATA 59

Mataitani v North Shore Realty Sunshine Coast [2020] QCATA 154

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

McKeering v Buchanan [2014] QCATA 109

Minister for Immigration and Citizenship v SZDMS & Anor (2010) 240 CLR 611

Neal v Wylie [2013] QCATA 280

Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212

Rogers v The Queen (1994) 181 CLR 251

Schepis & Anor v QM Properties Pty Ltd [2012] QCATA 197

Scott v Xiao [2013] QCATA 268

Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Terera & Anor v Clifford [2017] QCA 181

The Pot Man Pty Ltd v Reaoch [2011] QCATA 318

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

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

What is this application about?

  1. [1]
    On 9 December 2019, the Tribunal terminated the tenancy of Arjay Martin and Janica Leppanen on the grounds of failure to leave.[1] The tenants have applied for leave to appeal that decision.

What is the context within which the Appeal Tribunal considers the grounds of appeal?

  1. [2]
    An application for leave is not an occasion to re-try the case presented at trial, as if the latter were a mere ‘preliminary skirmish’.[2] The tenants’ grounds of appeal alleging lack of justiciability, not being provided a transcript or audio, denial of procedural fairness and bias, ignoring “rules of equity”, non-acceptance of their evidence, together with challenging the learned Adjudicator’s findings do not align with the Tribunal’s mandate to conduct proceedings in a way that is fair, just, economical, informal and quick[3] or established principle.[4] 
  2. [3]
    The Tribunal is not bound by the rules of evidence,[5] and may inform itself in any way it considers appropriate.[6] The Tribunal’s reasons are not to be scrutinised ‘with an eye keenly attuned to error’.[7] The Tribunal must act fairly[8] and according to principles of natural justice[9] with as little formality and as much speed as matters permit.[10]
  3. [4]
    An appellable error is not demonstrated by identifying other possibilities not mentioned or not apparently considered - the Tribunal may decide the case in a way that does not require the determination of a particular submission and therefore  simply put it aside.[11] The Tribunal may have unexpressed findings of fact.[12] In determining whether to grant leave, the Tribunal will consider established principles including:
    1. (a)
      whether there is a reasonably arguable case of error in the primary decision;[13]
    2. (b)
      whether there is a reasonable prospect that the appellant will obtain substantive relief;[14]
    3. (c)
      whether leave is needed to correct a substantial injustice caused by some error;[15] and
    4. (d)
      whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[16]
  4. [5]
    It is within this context that the primary reasons and grounds of appeal are considered.

Should Martin and Chadia Chalmers be joined as respondents?

  1. [6]
    The tenants applied to join Martin and Chadia Chalmers as respondents to the appeal.[17] However, these individuals are not named on the lease. Chadia Chalmers Realty Pty Ltd is named as agent on the lease.[18] As agent, Chadia Chalmers Realty Pty Ltd stands in the place of the lessor for the proceedings.[19] There is no basis to join individuals not named as agent on the lease.
  2. [7]
    The application for joinder is dismissed.

Should the Tribunal admit fresh evidence?

  1. [8]
    The tenants filed an application to file fresh evidence.[20]
  2. [9]
    The application is misconceived.
  3. [10]
    The tenants did not identify or file the specific evidence they were seeking to adduce as fresh evidence. It is not for the Tribunal to determine the evidence a party will require. Regardless, there is no basis to allow the tenants another opportunity to file evidence, whatever it might be. The onus was always upon the tenants to present their own case, including providing all evidence relevant to why the tenancy should not be terminated for their failure to leave. The tenants had an obligation to act in their own best interests:

The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources,

“… the public as a whole, not merely the parties to the proceedings”.

Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[21]

  1. [11]
    The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce fresh evidence must satisfy three tests:[22]
    1. (a)
      Could the parties have obtained the evidence with reasonable diligence for use at the trial?
    2. (b)
      If allowed, would the evidence probably have an important impact on the result of the case?
    3. (c)
      Is the evidence credible?
  2. [12]
    The tenants’ application[23] relevantly states:

QCAT original jurisdiction did not require the normal serving of documents, reply, response to the reply, response to the response.

Besides ones generated after the original hearing, most of the documents were with myself (sic) (Arjay) or with Janica, ready to be presented, but not allowed to be by the Adjudicator’s conduct…

Things like affidavits were not required for oral testimony, this appeal is ‘on the papers’ so is (sic) now required.

This evidence is important to allow justice to be done, and seen to be done; for a fair hearing, natural justice, procedural fairness, etc. Therefore anything QCAT deems ‘fresh evidence’ should be accepted.

It is hard to determine what QCAT might consider fresh evidence, obviously legal arguments are not evidence, the other party also had most of these documents eg emails to and from them. These documents were already provided, so are not attached here, it is unknown what, if anything will be deemed by QCAT as fresh when Adjudicator Mewing prevented submissions and arguments, including what was available.

  1. [13]
    A party to a minor civil dispute other than a minor debt claim cannot respond to the application.[24] This does not prevent the party from giving the tribunal evidence in writing or making written submissions.[25] The tenants had at least one week before the hearing to file their evidence and submissions.[26]
  2. [14]
    Although the tenants were given leave to attend by telephone, they also had the opportunity to attend in person and present their material on the day of the hearing. As it transpires, the tenants did attend the hearing in person. The learned Adjudicator did not prevent submissions and arguments but specifically asked the tenants why they opposed the application and other questions, both open and directive including specifically asking for their evidence throughout.[27]
  3. [15]
    The tenants had ample opportunity to present their evidence.
  4. [16]
    The application to file fresh evidence is dismissed.

Did the application lack justiciability where one of the tenants’ names were misspelled?

  1. [17]
    The tenants submitted that the learned Adjudicator erred in proceeding to hear the application against the tenant Janica Leppanen, when the original ‘Application for minor civil dispute – residential tenancy dispute’ incorrectly referred to her as “Jacinta Leppanen”.
  2. [18]
    Nothing turns on this.
  3. [19]
    Ms Leppanen did not dispute that she was a co-tenant and proper respondent to the application. In any event, the Tribunal has the power of correction as the learned Adjudicator correctly held.[28]
  4. [20]
    This ground of appeal is dismissed.

Did the Tribunal afford the tenants natural justice?

  1. [21]
    The tenants made various allegations of denial of natural justice, including not allowing discovery or requiring formal affidavit evidence, not allowing an adjournment, not being given a copy of the audio or transcript of the hearing, the brevity of the hearing, being interrupted, one of them not being allowed to speak, being insulted by the learned Adjudicator and bias.
  2. [22]
    The Tribunal must observe procedural fairness.[29] However, this is a flexible notion that must be commensurate with the nature and demands of the jurisdiction – it is a matter of construction of a particular statutory power.[30] The requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal.[31]

Was not allowing discovery a denial of natural justice?

  1. [23]
    The Tribunal’s mandate to conduct proceedings in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice[32] is at its most acute in the busy and demanding minor civil disputes jurisdiction, where thousands of applications are processed and determined each year.[33]
  2. [24]
    The Tribunal is not a jurisdiction where formal discovery or affidavits are required as a matter of course,[34] but it may instead inform itself in any way it considers appropriate[35] - particularly in an urgent application to terminate a tenancy. Because a requirement for formal discovery and affidavits would negate the Tribunal’s ability to process and determine thousands of high-volume urgent tenancy applications where time is of the essence, parties may not be aware of all of the material relied upon by their opponent before the hearing.
  3. [25]
    The tenants were provided with sufficient opportunity to give and receive all relevant evidence. Not allowing a formal discovery process or requiring affidavit evidence was not a denial of natural justice.

Was refusal of an adjournment a denial of natural justice?

  1. [26]
    The Tribunal had a discretion to grant an adjournment. The Appeal Tribunal will not interfere with the exercise of a discretion unless it can be shown that the Tribunal acted on a wrong principle, or made mistakes of fact affecting the decision, or was influenced by irrelevant matters.[36] Just because the Appeal Tribunal might have exercised the discretion differently is not a basis to change the decision; it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion.[37]
  2. [27]
    The tenants sought an adjournment because of a pending body corporate conciliation and one of them having law exams.[38] The Tribunal weighed this against the urgent nature of the application and prejudice to the landlord. The exercise of the Tribunal’s discretion was unremarkable. Nothing in the material or the transcript persuades the Appeal Tribunal that it was not a proper exercise of the Tribunal’s discretion. The tenants did appear at the hearing and had an opportunity to file evidence both before and during the hearing. Not allowing an adjournment was not a denial of natural justice.

Did the Tribunal discharge its obligations to give reasons?

  1. [28]
    The Tribunal provided reasons for its decision on the day of the hearing, which the tenants attended. The tenants were able to request a copy of the Transcript. The Tribunal has discharged its obligation to provide reasons for its decision.[39] By discharging its obligation, the Tribunal did not deny the tenants natural justice.

Did the Tribunal conduct the hearing in accordance with its natural justice obligations?

  1. [29]
    Urgent applications to terminate tenancies are conducted quickly and efficiently to meet the demands of this high-volume jurisdiction. As previously noted, the Tribunal’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘…the public as a whole, not merely the parties to the proceedings.’[40]
  2. [30]
    To manage demand within its statutory ambit, each urgent application is usually allocated 15 minutes. On this occasion, the learned Adjudicator allowed almost one hour, well beyond the allocated time. The length of the hearing met the requirements of natural justice within the Tribunal’s mandate. Allowing further time would render the Tribunal’s ability to conduct urgent tenancy applications untenable.
  3. [31]
    It was not incumbent upon the learned Adjudicator to call upon a particular tenant to give evidence. This would impinge on the parties’ right and duty to present their case[41] as they see fit:

QCAT has a statutory obligation to take all reasonable steps to ensure that each party to a proceeding understands its practices and procedures, and the nature of assertions made in the proceedings and its legal obligations. That statutory duty does not, on its face, extend to providing legal assistance to parties in the preparation of their cases.[42]

  1. [32]
    The tenants had an obligation to act in their own best interests by presenting their case and calling relevant witnesses. Both tenants attended the hearing, had the opportunity to speak and did so.[43] Indeed, the learned Adjudicator dedicated most of the hearing to listening to and considering the tenants’ evidence and submissions.[44]
  2. [33]
    The original hearing was characterised by a myriad of submissions from the tenants that had no bearing on the case. While the transcript reveals some interruptions, these were entirely appropriate within the context of a hearing where the Tribunal is mandated to ensure, so far as is practicable, that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all relevant facts.[45]
  3. [34]
    To fulfil this mandate, parties must expect some degree of exploration and discussion of issues by the Tribunal during the usual course of a hearing.[46] Sometimes voices may even be raised.[47] The interruptions were part of managing the hearing by directing the parties to what is relevant and in an endeavour to focus the hearing.
  4. [35]
    The learned Adjudicator gave the tenants an opportunity to present their material to prove their case and to rebut the agent’s evidence. The tenants had enough time to consider the evidence and respond.  Nothing in the transcript suggests that the tenants were denied a fair hearing by interruptions.

Did the Tribunal act with bias?

  1. [36]
    Bias is a serious allegation. The threshold to prove bias is high:

… if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the issues that he or she must decide.[48]

  1. [37]
    Allegations of bias require more than mere speculation. The learned Adjudicator asked relevant questions of the parties and gave them an opportunity to respond, referring to supporting material where appropriate.[49] By doing so, she focused on the issues and used time and resources efficiently, consistent with the Tribunal’s mandate. Extending the requirements of procedural fairness beyond this is inconsistent with the QCAT Act and would make the minor civil disputes jurisdiction cumbersome. 
  2. [38]
    Both parties filed material to support their case and were given an opportunity to present their case, consistent with the objects of the QCAT Act and within the demands of the jurisdiction. Having read the transcript, the Appeal Tribunal is satisfied that the allegation of bias is speculative and without basis. The learned Adjudicator conducted the hearing appropriately.
  3. [39]
    This ground of appeal is dismissed.

Were the Tribunal’s findings open on the evidence?

  1. [40]
    The Tribunal had a broad discretionary power to lawfully terminate the lease.[50] The Appeal Tribunal will not interfere with the exercise of that discretion unless it can be shown that the Tribunal acted on a wrong principle, or made mistakes of fact affecting the decision, or was influenced by irrelevant matters.[51] Just because the Appeal Tribunal might have exercised the discretion differently is not a basis to change the decision; it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion.[52]
  2. [41]
    The tenants submitted that the learned Adjudicator erred in not dismissing the application on the basis that the ‘Notice to Leave Without Ground’ was retaliatory and erred in not considering various information relating to rental payments and hardship, erred in taking into account irrelevant information and erred in not considering principles of equity.
  3. [42]
    The learned Adjudicator did not err in not dismissing the application on retaliatory grounds. A tenant who alleges retaliatory action must file a separate application:

The discretion to terminate a tenancy agreement for failure to leave without ground is very wide. The only guidance from the Residential Tenancies and Rooming Accommodation Act is that the tribunal must be ‘satisfied it is appropriate to make the order’.

By contrast, the tenant’s rights when faced with retaliatory action are specific. If [the tenant] reasonably believed that the notice was given in breach of s 291 of the Residential Tenancies and Rooming Accommodation Act, he had the right to apply to the tribunal for an order to set aside the notice. [The tenant] had to make that application within four weeks after the notice was given.

The tribunal has previously stated that the Residential Tenancies and Rooming Accommodation Act is proscriptive. If a tenant must make an application to set aside a notice to leave without grounds within four weeks after it was given, by implication, if the tenant does not bring such an application, he loses the right to argue retaliatory behaviour.

The rationale for limiting the right to challenge the notice is obvious, as illustrated by this dispute. If [the tenant] had filed an application under s 292 within time, [the agent] would have received notice of it and arranged for [the] lessor to give evidence. Further, the application could have been heard and determined before the notice period expired.

[The tenant] did not bring an application, either in time or at all. He therefore lost the right to argue that the notice was retaliatory.[53]   

  1. [43]
    The same reasoning applies here. The tenants did not file an application to set aside the notice on the ground it was retaliatory. They therefore lost the right to argue it at the hearing or on appeal.
  2. [44]
    The tenants also submitted that the Notice was not in the correct from, did not state their rights and was not received by one of them. The tenants’ submission about the giving of the notice did not address the agreed notice requirements.[54] Moreover, the tenants did not raise these issues at the original hearing,[55] denying the agents the right to give evidence in response:

… if a party fails to raise an issue although he or she might reasonably have done so, there may well be a true estoppel which precludes that party from raising it in later proceedings.[56]

  1. [45]
    Regardless, the Notice is on its face in the correct form. Any failure to include information about the tenants’ rights was a curable defect and did not fetter the learned Adjudicator’s discretion to terminate the tenancy.[57] The learned Adjudicator considered all the circumstances of the case and exercised her discretion.[58]
  2. [46]
    The tenants’ submission about the learned Adjudicator not addressing selected arguments or items of evidence does not demonstrate an appellable error. If the learned Adjudicator’s reasons do not specifically refer to an item of evidence, it does not mean it was overlooked. Rather, it is reasonable to infer that the learned Adjudicator did not consider it relevant or sufficient to outweigh the evidence upon which her findings were made. It is not an error for the learned Adjudicator to not explain away each and every item of evidence not considered relevant or of sufficient weight.[59]
  3. [47]
    The primary reasons need only refer to the relevant evidence, material findings of fact (and reasons for those findings) and the applicable law and reasons for applying it.[60] The learned Adjudicator referred to the tenants’ evidence in her reasons and having considered it, she exercised her discretion to terminate the tenancy.[61]
  4. [48]
    Apart from unmeritorious arguments about lack of standing and the agent allowing them an extension,[62] the tenants gave evidence about the body corporate preventing them from packing their belongings, rental discrepancies and the alleged hardship that termination would cause.[63]  The learned Adjudicator was not in error to consider the circumstances before her and having done so, to then exercise her discretion broadly:

The prerequisite of leave to appeal indicates a legislative intent that primary decisions of the tribunal shall normally be final. An application for leave to appeal is not an opportunity to reargue the case anew. It is not an open licence to ‘second guess’ the original decision. The question is whether the would-be appellant presents a reasonable argument that legal error or irrationality substantially affected the primary decision. The question is not whether the appeal tribunal, in the shoes of the decision-maker, would necessarily have reached the same conclusion. Exceptionally, leave may be granted to examine a question of public importance, but few minor civil disputes meet that description. It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it deserves. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available. Where reasonable minds may differ, a decision is not legally erroneous simply because one conclusion has been preferred to another possible view.[64]

  1. [49]
    The appeal process is not an opportunity for a party to again present their case.[65] It is the means to correct an error by the Tribunal that decided the proceeding.[66] In making her decision, the learned Adjudicator was required to make orders that she considered fair and equitable to resolve the dispute.[67] ‘Fair and equitable’ in the context of minor civil disputes means that the decision must not be beyond jurisdiction, contrary to natural justice, or arbitrary or capricious:

In the interest of expedition and economy, this provision releases the Tribunal from mandatory adherence to the rules of common law and equity, and confers a ‘broad jurisdiction to make orders that it considers fair and equitable’…[68]

  1. [50]
    A decision must not be so plainly arbitrary or capricious as to bear no reasonable relationship to the facts of the case.[69] This was an urgent application to terminate a tenancy for failure to leave, brought in the Tribunal’s minor civil disputes jurisdiction. To terminate the tenancy, the learned Adjudicator need only have been satisfied on the facts of the case that it was appropriate[70] once the agent delivered a valid notice and met all prescribed time limits. Having been satisfied on the evidence that the prerequisites had been met, the learned Adjudicator was then entitled to exercise the broad discretion conferred upon her by the Legislature to terminate the tenancy.
  2. [51]
    The learned Adjudicator’s findings are supported by the evidence.
  3. [52]
    Nothing in the material or the transcript persuades the Appeal Tribunal that the learned Adjudicator’s decision to terminate the tenancy for failure to leave was not open to her. The learned Adjudicator’s findings were open on the evidence and it is not for the Appeal Tribunal to interfere with that finding.
  4. [53]
    This ground of appeal is dismissed.

Should the Appeal Tribunal grant leave to appeal?

  1. [54]
    Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.[71] A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.[72] An application for leave to appeal is not, and should not be an attempt to reargue a party’s case at the initial hearing.[73]
  2. [55]
    Having read the transcript and considered the evidence, the Appeal Tribunal finds nothing to indicate that the learned Adjudicator acted on a wrong principle, or made mistakes of fact affecting her decision, or was influenced by irrelevant matters. The evidence was capable of supporting the learned Adjudicator’s conclusions and her decision reflected a proper exercise of her discretion.
  3. [56]
    There is no question of general importance for the Appeal Tribunal to determine. There is no reasonably arguable case that the Tribunal was in error.[74] There is no reasonable prospect of substantive relief on appeal.[75] There is no evidence that a substantial injustice will result if leave is not granted.[76]
  4. [57]
    Leave to appeal is refused.

What are the appropriate orders?

  1. [58]
    Because the tenants have been wholly unsuccessful in their appeal, it is appropriate to lift the stay of the decision to terminate the tenancy and reinstate the Warrant of Possession. The tenants will be allowed sufficient time to arrange their affairs over the Christmas - New Year period before vacating.
  2. [59]
    The appropriate Orders are:
    1. The application for miscellaneous matters filed by the applicant on 12 March 2020 is dismissed.
    2. The application for miscellaneous matters filed by the applicant on 19 March 2020 is dismissed.
    3. Leave to appeal is refused.
    4. The stay of the decision is lifted.
    5. The Warrant of Possession issued on 9 December 2019 is re-instated to take effect on 28 January 2021 and remain in effect for 14 days, to expire at 6.00pm on 12 February 2021.
    6. The Warrant of Possession is to be executed as soon as reasonably practicable after taking effect.
    7. Entry under the Warrant of Possession shall only be between the hours of 8.00am and 6.00pm.

Footnotes

[1]Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 293, s 341.

[2]Mataitani v North Shore Realty Sunshine Coast [2020] QCATA 154, [12] citing Coulton v Holcombe (1986) 162 CLR 1, 7.  

[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b).

[4]King v ASIC [2018] QCA 352, citing with approval Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430.

[5]  QCAT Act, s 28(3)(b).

[6]  Ibid s 28(3)(c).

[7]WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, [46].

[8]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2).

[9]Ibid s 28(3)(a).

[10]Ibid s 28(3)(d).

[11]Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 269, 270.

[12]Ibid 272.

[13]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[14]Cachia v Grech [2009] NSWCA 232.

[15]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[16]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.

[17]Application for miscellaneous matters filed 12 March 2020.

[18]General tenancy agreement dated 18 June 2019, item 3.

[19]Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 206(3); General tenancy agreement dated 18 June 2019, item 3, clause 43.

[20]Application for miscellaneous matters filed 19 March 2020.

[21]Creek v Raine & Horne Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217.

[22]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408.

[23]Application for miscellaneous matters filed 19 March 2020, Part C2.

[24]Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 43(1).

[25]Ibid r 43(2).

[26]The Application for minor civil dispute was filed on 25 November 2019. Because this was an urgent application for termination of a tenancy, the application was scheduled for hearing on 9 December 2019. The tenants applied for an adjournment on 28 November 2019. The adjournment was refused on 5 December 2019 and the tenants were given leave to attend the hearing by telephone or in the alternative, for one to represent both. Ultimately, both tenants attended in person.

[27]Transcript, page 1-2, line 42; page 1-5, lines 17 to 18; page 1-6, line 44; page 1-7, line 11; page 1-9, lines 23, 29; page 1-10, lines 1 to 2, 27 to 28; page 1-11, lines 3 to 4; page 1-12, line 21; page 1-17, lines 11, 27 to 28; page 1-21, lines 1 to 2.

[28]Transcript 1-8, lines 13 to 19; 1-23, lines 16 to 20; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61.

[29]  Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a).

[30]  Kioa v West (1985) 159 CLR 550, 584-585.

[31] Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, [15] (Wilson J).

[32] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4(c).

[33] Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212, [46] (Wilson J).

[34]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b).

[35]Ibid s 28(3)(c).

[36]House v The King (1936) 55 CLR 499, 504.

[37]Lovell v Lovell (1950) 81 CLR 513.

[38]Application for miscellaneous matters filed 29 November 2019.

[39]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 121(4).

[40]Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, [13] (Wilson J).

[41]Neal v Wylie [2013] QCATA 280, [11].

[42]Brownie & Anor v Penfold [2013] QCATA 182, [21] (Wilson J).

[43]Transcript, page 1-2, lines 42 to 47; page 1-3, lines 1 to 40; page 1-4, lines 44 to 45; page 1-5, lines 13 to 46; pages 1-6 to 1-22.

[44]Transcript, page 1-2, lines 42 to 47; page 1-3, lines 1 to 40; page 1-4, lines 44 to 45; page 1-5, lines 13 to 46; pages 1-6 to 1-22.

[45]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(e).

[46]Gollan v Vaccaneo [2013] QCATA 228.

[47]Schepis & Anor v QM Properties Pty Ltd [2012] QCATA 197.

[48]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344-5 [6].

[49]Transcript, page 1-4, lines 44 to 45; pages 1-6 to 1-22.

[50]McKeering v Buchanan [2014] QCATA 109, [5] citing Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 341(2) (Senior Member Stilgoe OAM).

[51]House v The King (1936) 55 CLR 499, 504.

[52]Lovell v Lovell (1950) 81 CLR 513.

[53]McKeering v Buchanan [2014] QCATA 109, [5] to [9] (Senior Member Stilgoe OAM), citing Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 292(2) and (3), s 341(2), Lowe v Aspley [2010] QCATA 59, [10].

[54]General Tenancy Agreement Standard Terms, clause 44.

[55]Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, 602.

[56]Rogers v The Queen (1994) 181 CLR 251, 274-275 (Deane and Gaudron JJ).

[57]Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 349.

[58]Scott v Xiao [2013] QCATA 268, [11].

[59]Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 269, 270.

[60]Armstrong v Kawana Island Retirement Village [2011] QCATA 324, [13].

[61]Transcript, pages 1-22 to 1-25.

[62]Transcript, pages 1-5 to 1-10.

[63]Transcript, pages 1-12 to 1-16, 1-18 to 1-21.

[64]Elshohna v Property Pursuit [2019] QCATA 57, [18], citing Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, Fox v Percy (2003) 214 CLR 118, 125-6, Minister for Immigration and Citizenship v SZDMS & Anor (2010) 240 CLR 611, [131], In re W (an infant) [1971] AC 682, 700, Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1025, Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 151.  

[65]Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39, [9].

[66]Ibid.

[67]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 13.

[68]Cavalliotis v Rizio & Anor [2013] QCATA 201, [15], citing The Pot Man Pty Ltd v Reaoch [2011] QCATA 318, [8] (Wilson J).

[69]Cavalliotis v Rizio & Anor [2013] QCATA 201, [18].

[70]Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 341.

[71]Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J).

[72]Ibid.

[73]Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39.

[74]Terera & Anor v Clifford [2017] QCA 181.

[75]Ibid.

[76]Ibid.

Close

Editorial Notes

  • Published Case Name:

    Martin & Anor v Chadia Chalmers Realty Pty Ltd

  • Shortened Case Name:

    Martin v Chadia Chalmers Realty Pty Ltd

  • MNC:

    [2020] QCATA 164

  • Court:

    QCATA

  • Judge(s):

    Member Hughes

  • Date:

    08 Dec 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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