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Crinis v Ray White Paradise Group[2016] QCATA 90

Crinis v Ray White Paradise Group[2016] QCATA 90

CITATION:

Crinis v Ray White Paradise Group [2016] QCATA 90

PARTIES:

Kerry Crinis

(Applicant/Appellant)

v

Ray White Paradise Group

(Respondent)

APPLICATION NUMBER:

APL494-15

MATTER TYPE:

Application and Appeals

HEARING DATE:

12 January 2016

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

DELIVERED ON:

15 January 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

  1. The applicant is granted an extension of time within which to file an application for leave to appeal.
  2. The applicant is granted a waiver any outstanding procedural requirements, and is taken to have made the application for leave to appeal by oral submission on 12 January 2016.
  3. The appeal filed by the applicant on 2 December 2015 is taken to be the basis for the applicant’s application for leave to appeal.
  4. The application for a stay of the decision and orders of the tribunal in mcdt1581-15 is refused.
  5. The warrant of possession directed to be issued by the adjudicator on 30 November 2015 in proceeding mcdt1581-15 is reissued on and from 18 January 2016.
  6. In lieu of order 3 of the adjudicator dated 30 November 2015 in mcdt1581-15, substitute the following:

The warrant shall take effect on 18 January 2016 and remain in effect for 14 days, to expire at 6:00PM on 1 February 2016.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – STAY – where the applicant sought a stay of the decision of the Adjudicator in MCDT1581-15 – whether a stay should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 8, s 43, s 61, s 142, s 143, sch 3

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 95

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 280, s 281, s 349

Residential Tenancies and Rooming Accommodation Regulation (Qld), sch 1, r 44

Berry v Green [1999] QCA 213

Briginshaw v Briginshaw (1938) 60 CLR 336

Carrie v Department of Communities (Housing and Homelessness Service) [2010] QCATA 15

Commissioner of Taxation v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220

Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322

Coulthard v National Real Estate Solutions Pty Ltd [2015] QCATA 116

Dearman v Dearman (1908) 7 CLR 549

Deputy Commissioner Stewart v Kennedy [2011] QCATA 254

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

Fox v Percy (2003) 214 CLR 118

Holliday v Franklin (Qld) Pty Ltd [2015] QCATA 135

Kanai v Department of Housing and Public Works (Unreported, Appeal Tribunal of the Queensland Civil and Administrative Tribunal, Carmody J, 15 September 2015)

KG v Public Trustee of Queensland [2011] QCATA 1

La Macchia v Department of Housing and Public Works [2015] QCATA 143

Legal Services Commissioner v Baker (No 1) [2006] 2 Qd R 107

Wheeler & Smith v Body Corporate for Calypso Towers & Anor [2015] QCATA 162

Woodgate Beach Asian Pacific Realty Pty Ltd v Gerard [2010] QCATA 64

APPEARANCES and REPRESENTATION (if any):

APPLICANT/APPELLANT

C Dupois for K Crinis

RESPONDENT

D Fuller instructed by Nicholsons Solicitors for the respondent.

REASONS FOR DECISION

  1. [1]
    This is an interlocutory application, in an application for leave to appeal, to stay the operation of the original decision and orders in minor civil dispute application MCDT1581-15, dated 30 November 2015, terminating a lease agreement between Topben Pty Ltd (ACN 074 374 659) and Anamili Pty Ltd (ACN 010 146 700) (the “Lessors”), represented by the respondent real estate agent, with the applicant, and issuing a warrant of possession.
  2. [2]
    The application for leave to appeal or appeal is infelicitously expressed. The grounds of appeal enumerated by the applicant are poorly articulated.
  3. [3]
    The Appeal Tribunal gleans that the applicant has filed an application for leave to appeal on the following grounds:
    1. the Adjudicator erred by failing to disqualify herself from the original application on the ground of actual or apprehended bias;
    2. the Adjudicator erred by finding that an unspecified notice served by the respondent on the applicant by email was properly served in accordance with the relevant legislation;
    3. the Adjudicator erred by proceeding with the matter without sufficient evidence of authority from one (unspecified) Lessor;
    4. the Adjudicator erred by failing to transfer the application to the Southport Magistrates Court;
    5. the Adjudicator erred by failing to stay the proceedings as a result of parallel proceedings involving a common question of fact or law in the Magistrates Court; and
    6. the Adjudicator erred by failing to consider a relevant consideration, namely documentary evidence of extant negotiations with a view to securing a settlement.
  4. [4]
    A preliminary procedural matter is whether the Appeal Tribunal is properly seized with this application for leave to appeal or appeal as a result of the applicant’s failure to state that he required leave to appeal.

LEAVE TO APPEAL

  1. [5]
    The respondent raised the procedural point that the applicant failed to file an application for leave to appeal with the Appeal Tribunal.
  2. [6]
    A party to a proceeding may appeal to the Appeal Tribunal if a judicial member did not constitute the Tribunal in the proceeding.[1] However, if the appeal is against a decision in a minor civil dispute, the party must obtain leave of the Appeal Tribunal.[2]
  3. [7]
    “Minor civil dispute” is defined to include a “tenancy matter”.[3] “Tenancy matter” is defined as a “matter in relation to which a person may, under the Residential Tenancies and Rooming Accommodation Act 2008, apply to the tribunal for a decision”.[4]
  4. [8]
    An application for a termination order is made under Chapter 5, Part 1, Division 2, Subdivision 3 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the “RTRAA”). An application for a warrant of possession may be made under Chapter 5, Part 1, Division 7 of the RTRAA. Accordingly, this is a “tenancy matter”, and therefore an appeal against a decision in a “minor civil dispute”. As this an appeal against a decision in a “minor civil dispute”, the applicant requires leave to appeal.
  5. [9]
    Form 39 is the prescribed form for an application for leave to appeal or appeal.[5] Part E of Form 39 requires the applicant to nominate whether they require leave to appeal, or leave to appeal has been granted.
  6. [10]
    The applicant filed his application for leave to appeal or appeal on 2 December 2015. Although the applicant filed Form 39, the applicant failed to nominate in Part E that he required leave to appeal.
  7. [11]
    The applicant’s written submissions do not contain any request for leave to appeal. In the course of the proceedings, however, the applicant appeared to understand that he required leave to appeal, and made submissions regarding the anterior requirements for leave to appeal.
  8. [12]
    The QCAT Act provides that an application for leave to appeal must be in a form substantially complying with the QCAT Rules.[6] The application must be filed in the registry within 28 days after the relevant day.[7]
  9. [13]
    The Appeal Tribunal is of the view that, notwithstanding the excision of page 4, the documentation filed “substantially” complies with the QCAT Rules. The applicant, therefore, has not failed to comply with s 143(2)(a) of the Act.
  10. [14]
    However, the applicant did not clearly articulate that he was seeking leave of the Appeal Tribunal in the Form 39 filed. This raises the question of whether the applicant has filed an appeal, or an application for leave.
  11. [15]
    The language used by the applicant in the Form 39 is more consistent with an appeal than an application for leave to appeal. There is no information in the documentation filed from which the Appeal Tribunal might properly infer that the applicant intended to seek leave of the Appeal Tribunal.
  12. [16]
    The Form 39 filed on 2 December 2015, properly construed, is an appeal, as distinct from an application for leave. To the extent the applicant has failed to seek leave of the Appeal Tribunal to appeal against the decision of the Adjudicator, these proceedings are procedurally irregular.
  13. [17]
    An application to stay is an interlocutory application within an extant appeal. The Appeal Tribunal would not grant an application to stay, unless it was in support of existing appeal, or leave to appeal, proceedings. Therefore, if the applicant has not enlivened the jurisdiction of the Appeal Tribunal, it has no jurisdiction to grant a stay of the operation of the primary decision.
  14. [18]
    The applicant did not make an application to amend the originating document. However, in oral submissions, the applicant appeared to be petitioning the Appeal Tribunal for leave to appeal against the decision.
  15. [19]
    If the Form 39 filed with the Appeal Tribunal was an appeal, and not an application for leave to appeal, the Appeal Tribunal would be required to refuse the stay application for want of jurisdiction, and would reissue the warrant of possession. This would have significant consequences for the applicant, and deprive the applicant of an opportunity to ventilate his appeal.
  16. [20]
    QCAT is enjoined to ensure proceedings are conducted in an informal way, that minimises costs to the parties, and is as quick as is consistent with achieving justice.[8] An objective of QCAT is to deal with matters in a way that is accessible, fair, just, economical, informal and quick.[9] The Appeal Tribunal is given jurisdiction to waive, or extend time for compliance, with procedural requirements to discharge these objectives and functions.[10]
  17. [21]
    The respondent submitted that the applicant must fail by reason of not having sought leave of the Appeal Tribunal. Counsel for the respondent must be commended for his fairness in not pressing this submission.
  18. [22]
    The Appeal Tribunal is sympathetic to the submissions of the respondent that, by granting an extension of time, it puts the respondent to further cost and delay. However, the Appeal Tribunal considers that it would be unjust to deny the applicant an opportunity to ventilate his appeal on the procedural ground of failing to, in the words of counsel for the respondent in oral submissions, “tick a box”.
  19. [23]
    If the Appeal Tribunal were to refuse the application for stay for non-compliance with an anterior formal requirement, it would risk inflicting an injustice on the applicant. The applicant would file a further application for leave to appeal with the Appeal Tribunal in the correct form, giving rise to further stay proceedings, and causing additional expense and delay, especially when both parties have fully and properly argued the merits of the application to stay before the Appeal Tribunal.
  20. [24]
    The Appeal Tribunal will grant an extension of time for the applicant to file an application for leave to appeal with the Appeal Tribunal. The Appeal Tribunal waives the formal requirement to comply with s 143(2)(a) of the QCAT Act. The Appeal Tribunal finds that the applicant sought leave of the Appeal Tribunal on 12 January 2015, and will treat the appeal filed on 2 December 2015 as the foundation for the application for leave to appeal.

McKENZIE FRIEND

  1. [25]
    At the commencement of the proceedings, the applicant petitioned the Appeal Tribunal for leave for Mr Charles Dupois to appear as his lay representative. The Appeal Tribunal has jurisdiction to grant leave for a party to be represented,[11] subject to certain requirements.[12]
  2. [26]
    A dispute at earlier proceedings before a Senior Member of the Appeal Tribunal regarding whether Mr Dupois should have been permitted to represent the respondent had the effect of disrupting the proceedings.
  3. [27]
    The behaviour of Mr Dupois was unbecoming, inappropriate, and showed disrespect for the Senior Member. The Appeal Tribunal expects more from litigants in its jurisdiction.
  4. [28]
    In later proceedings before me, the respondent graciously and fairly elected not to oppose the appearance of Mr Dupois to avoid further disruption. The Appeal Tribunal granted leave for the Mr Dupois to appear on behalf of the applicant, on the express understanding that Mr Dupois was acting as the applicant’s representative.
  5. [29]
    In the course of Mr Dupois’ submissions, it became clear that Mr Dupois believed he was representing the interests of his mother, Ms Dupois, who was a resident at the premises leased by the applicant, but had no standing in these proceedings. The Appeal Tribunal was also surprised to discover that the applicant was a former barrister practising in Australia.
  6. [30]
    The Appeal Tribunal notes these procedural peculiarities only to avoid establishing precedent that this was an appropriate case within which to grant leave for the applicant to be represented by Mr Dupois.
  7. [31]
    Ms Dupois had no standing in these proceedings, and was not entitled to representation. Mr Dupois was not an appropriate person, as required under s 43(4)(b) of the QCAT Act, to act as a lay representative for the applicant.
  8. [32]
    Although the respondent was represented by counsel, the applicant, as a former barrister in Australia, was sufficiently capable of representing his own interests. Furthermore, the stay proceedings did not raise any complex questions of law or fact requiring independent legal representation.
  9. [33]
    Had the Appeal Tribunal been aware of the professional history of the applicant, and the fact that Mr Dupois sought to represent the interests of a person without standing in the proceedings, the Appeal Tribunal would not have granted leave for the applicant to be represented by Mr Dupois.
  10. [34]
    Nevertheless, the Appeal Tribunal will consider any relevant submissions or evidence presented by Mr Dupois in these reasons for decision.

APPLICATION TO STAY THE OPERATION OF THE PRIMARY DECISION

  1. [35]
    The Appeal Tribunal expresses its appreciation for the able and informed oral submissions made by the respondent.
  2. [36]
    The familiar principles governing applications to stay the operation of an original decision in QCAT have been explained in several recent Appeal Tribunal decisions.[13] Therefore, it is not necessary to conduct a fulsome examination of the applicable principles.
  3. [37]
    A successful party is entitled to the fruits of its litigation.[14] The orders of the Tribunal, exercising its original decision, are final, and not merely provisional subject to the initiation of appellate proceedings.[15] The original jurisdiction of the Tribunal is not to be converted into a forum for the testing or refinement of arguments to be properly ventilated on appeal.[16]
  4. [38]
    Therefore, the applicant must present compelling reasons for the Appeal Tribunal to exercise its discretion to grant a stay of the operation of the original decision. This must be supported by sufficient evidence to establish the necessary facts relied on by the applicant in support of the stay.[17]
  5. [39]
    The applicant must satisfy the following criteria to obtain a stay of the original decision:
    1. the applicant must present a reasonably arguable case for obtaining effective relief in the substantive proceedings;[18]
    2. the applicant must establish that a refusal of the stay would cause a material detriment to the applicant; and
    3. the applicant must demonstrate that the balance of convenience favours the granting of a stay of the operation of the original decision.
  6. [40]
    These requirements are cumulative. If the applicant fails to discharge any one of the three requirements, the applicant must fail.

Reasonably Arguable Case

  1. [41]
    The applicant must establish that it has a reasonably arguable case that the original decision was infected by some form of legal, factual or discretionary error that would warrant appellate intervention to grant effective relief.
  2. [42]
    This is merely a threshold requirement. The Appeal Tribunal is not required, at this stage, to consider the relative merits of the applicant’s argument. The probability of the applicant succeeding in the appeal, and obtaining effective relief, is a relevant factor considered in the balance of convenience.
  3. [43]
    This criterion requires the Appeal Tribunal to give preliminary consideration to the substantive merits of the appeal. If the applicant cannot establish a reasonably arguable case, the application must fail as the Appeal Tribunal will not exercise its discretion in support of an unmeritorious appeal.
  4. [44]
    The rationale underpinning this principle is self-evident: if the appeal is futile or impotent, staying the operation of the original decision would cause injustice by unnecessarily delaying the enforcement of a valid decision, and constitute an inefficient allocation of scarce public and private resources.
  5. [45]
    Nevertheless, the Appeal Tribunal must avoid prejudging the merits of the appeal. Accordingly, any provisional factual or legal findings are based on a preliminary examination of the evidence and submissions advanced by the parties, and are subject to revision in the substantive appeal.
  6. [46]
    The applicant’s grounds of appeal are enumerated at [3] of these reasons for decision.
  7. [47]
    The applicant submits that the Adjudicator erred by failing to disqualify herself from the original application on the ground of actual or apprehended bias, because the Adjudicator had previously decided to transfer another application to the Magistrate’s Court.
  8. [48]
    The principles governing judicial recusal are well established. The applicant must show either: (a) actual bias; or (b) apprehended bias.
  9. [49]
    To prove actual bias, the applicant must adduce evidence which establishes, or from which a reasonable inference may be drawn, that the decision-maker did not, in fact, bring an impartial mind to the resolution of the question the decision-maker was required to decide.
  10. [50]
    The applicant claims that because the Adjudicator had elected to exercise her discretion to transfer a previous application to the Magistrate’s Court, the Adjudicator’s refusal to transfer the application forming the foundation of the present application for leave to appeal permits an inference that the Adjudicator was infected by bias.
  11. [51]
    The reasoning of the applicant is spurious. The differential determination of two distinct applications to transfer proceedings in two separate matters cannot give rise to any reasonable inference that the Adjudicator did not bring an impartial mind to the application to transfer the proceedings. This is particularly because it involves an exercise of discretion, which may be influenced by subtle procedural or substantive differences in proceedings.
  12. [52]
    To prove apprehended bias, the applicant must establish that:

a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide...

[This] requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.[19]

  1. [53]
    According to the High Court, the applicant must demonstrate:
    1. the fact, circumstance or event which constitutes the source of the bias or prejudice;
    2. a feared deviation as a result of the bias or prejudice; and
    3. a logical connection between the source of the bias or prejudice and the feared deviation as a result of the bias or prejudice.
  2. [54]
    The applicant has not identified the relevant fact, circumstance or event which gives rise to the purported apprehended bias. Two different exercises of discretion might be a deviation caused by bias; but it is not, in itself, an identification of the source of bias. As the differential exercise of discretion is explicable by other, more innocuous and reasonable, considerations than bias, it cannot satisfy the fair-minded observer test.
  3. [55]
    The applicant has not attempted to draw any logical connection between the source of the bias and the purported deviation caused by the bias. This is unsurprising, because no such logical connection can be established in the absence of identifying the source of the bias.
  4. [56]
    Accordingly, the applicant has failed to establish that a fair-minded lay observer might reasonably apprehend that the Adjudicator did not, or would not, bring an impartial mind to the resolution of the original application.
  5. [57]
    The first ground of appeal fails to disclose any reasonably arguable case that the decision of the Adjudicator was infected by error.
  6. [58]
    The second ground of appeal is that the Adjudicator erred by finding that the Notice to Remedy Breach and Notice to Leave (the “Notices”) served by the respondent on the applicant by email was properly served in accordance with the RTRAA.
  7. [59]
    The applicant has not identified the juridical basis on which the applicant claims Notices were not properly served. As the respondent correctly submits, the RTRAA prescribes that:

The lessor may give a notice to the tenant requiring the tenant to remedy the breach within the allowed remedy period…[20]

The lessor may give a notice to leave the premises to the tenant because the tenant has failed to comply, within the allowed remedy period, with a notice to remedy breach given to the tenant by the lessor.[21]

  1. [60]
    The RTRAA requires only that the lessor give the Notices to the tenant. Item 44 of Schedule 1 of the Residential Tenancies and Rooming Accommodation Regulation 2009 (Qld) (the “RTRAR”), prescribes that:

A notice may be given to a party to this agreement or the lessor’s agent –

  1. (d)
     if an email address for the party… is stated in this agreement for item 1, 2 or 3 and item 4 indicates that a notice may be given by email – by sending it electronically to the email address…[22]
  1. [61]
    Unfortunately, although the applicant accepted that notices could be served on the applicant by email address, the applicant failed to nominate an email address in items 1, 2 or 3 of the lease agreement.
  2. [62]
    The respondent submits that the Notices were properly served because the RTRA only requires the respondent to “give” the Notices to the applicant.
  3. [63]
    The respondent’s submission fails to give adequate weight to the effect of the lease agreement executed by parties. The RTRAA, RTRAR, and lease agreement, contemplate that the parties have the power to prescribe the requirements for service of notices. Non-compliance with the requirements renders a notice formally irregular.
  4. [64]
    Clause 44(3)(d) of the lease agreement prescribes that a notice may be served by email only if: (a) the applicant nominates an email address for service in items 1, 2, or 3; and (b) the applicant nominates in item 4 that the applicant may receive notices by email. Because the applicant satisfied (b), but not (a), the notices could not be served on the applicant under clause 44(3)(d) by email.
  5. [65]
    Section 349(1) of the RTRAA provides that:

If an application is made to a tribunal by a lessor for a termination order because of a failure to leave, the tribunal may make the order if it is satisfied it is appropriate to make the order in all the circumstances of the case, even though the notice to leave contains a defect.

  1. [66]
    In this respect, there are two formal defects in the Notice to Leave: (a) the Notice to Leave has been anteceded by a Notice to Remedy Breach which was not correctly served on the applicant; and (b) the Notice to Leave has not been correctly served on the applicant.
  2. [67]
    The evidence establishes that:
    1. the applicant indicated he was willing to receive the Notices by email;
    2. the applicant in fact received the Notices by email; and
    3. the applicant has not suffered any prejudice or detriment as a result of the notices being filed by email, as distinct from some other means of communication.
  3. [68]
    This is precisely the category of case within which the Adjudicator might exercise her discretion under s 349(1) of the RTRAA to make an order which is appropriate, in all the circumstances of the case, notwithstanding a defect in the Notices. The Adjudicator is not required to expressly state that she was invoking s 349 before making the appropriate orders.
  4. [69]
    Accordingly, the applicant has no reasonably arguable case that procedural defects in the Notices impeached the decision of the Adjudicator.
  5. [70]
    The applicant further claims that the Adjudicator erred by finding that the respondent had sufficient authority to represent a Lessor.
  6. [71]
    This is a question of fact for the Adjudicator. The Adjudicator did not require a formal instrument conferring authority on the respondent to represent the Lessor in the matter. The Adjudicator need only have been reasonably satisfied that the respondent possessed the required authority.
  7. [72]
    The Appeal Tribunal will not interfere with the findings of fact of the Adjudicator if the evidence is capable of supporting her conclusions.[23] The Appeal Tribunal finds that the evidence is capable of supporting her finding that the respondent possessed authority to represent both Lessors.
  8. [73]
    There is no reasonably arguable case that the Adjudicator erred by finding that the respondent had sufficient authority to represent the applicant.
  9. [74]
    The applicant claims that the Adjudicator erred by failing to transfer the application to the Southport Magistrates Court.
  10. [75]
    As observed by the respondent, this is not a ground of appeal. If the Appeal Tribunal were to find that the Adjudicator might, or even should, have transferred the matter to the Southport Magistrates Court, provided that the Appeal Tribunal is satisfied the Adjudicator had jurisdiction to determine the application, it cannot have the effect of rendering the decision factually or legally erroneous so as to warrant appellate intervention. The Adjudicator manifestly possessed jurisdiction to dispose of the application.
  11. [76]
    There is no reasonably arguable case that the Adjudicator erred by failing to transfer the matter to the Southport Magistrates Court.
  12. [77]
    The applicant claims that the Adjudicator erred by failing to stay the proceedings as a result of parallel litigation involving a common question of fact or law pending in the Magistrates Court. The applicant appears to be referring to M1353-15, which was struck out on 11 December 2015 on the basis that it disclosed no reasonable cause of action.
  13. [78]
    The Adjudicator was not required to stay the application on the basis of parallel proceedings. Such a decision would be of a discretionary nature. Having regard to the specious nature of the proceedings before the Magistrates Court, it was appropriate for the Adjudicator to decline to stay the proceedings pending the determination of M1353-15. The wisdom of this decision has been established by the later striking out of M1353-15.
  14. [79]
    The applicant filed a further application with QCAT on 4 January 2015, MCDT10-16, claiming rental abatement. Much of the claim appears to be on a similar basis to that prosecuted by the applicant in M1353-15. As the Adjudicator handed down her decision in the original proceedings on 30 November 2015, the subsequent filing of separate proceedings in QCAT cannot affect the validity of that decision.
  15. [80]
    There is no reasonably arguable case that the Adjudicator erred by failing to stay the matter pending the determination of M1353-15.
  16. [81]
    The applicant claims the Adjudicator erred by failing to consider a relevant consideration, namely evidence of extant settlement negotiations.
  17. [82]
    The Adjudicator was entitled to decline to admit the evidence of prior negotiations. Further, the existence of such negotiations was an irrelevant consideration to the determination of the application for a termination order.
  18. [83]
    There is no reasonably arguable case that the Adjudicator erred by failing to admit evidence of settlement negotiations.
  19. [84]
    The applicant has failed to establish a reasonably arguable case that the original decision was infected by legal, factual or mixed error. The application to stay the original decision should be refused on this basis.
  20. [85]
    The Appeal Tribunal will consider the other elements of the application to stay the operation of the primary decision for the purpose of completeness.

Material Detriment to the Applicant

  1. [86]
    The applicant must establish that the refusal of the application for a stay of the original decision would cause a material detriment to the applicant. The material detriment may manifest in some form of tangible or intangible personal, economic or other non-economic loss.
  2. [87]
    A corollary of the principle of non-provisionality is that a detriment which is a natural consequence of the enforcement of the original decision will not, in ordinary circumstances, be a material detriment for the purposes of a stay application. This principle will not apply, however, where the detriment relied on by the applicant is substantial, unusual, and irreversible.
  3. [88]
    At this stage, the identification of a material detriment to the applicant is a non-graduated threshold requirement. The Appeal Tribunal is not required to assess the degree of detriment sustained by the applicant, or compare the detriment with any other loss or injury which might be suffered by the respondent as a result of granting the stay.
  4. [89]
    This criterion is satisfied merely by establishing that the applicant will suffer some kind of material detriment as a result of the refusal of the stay.
  5. [90]
    The applicant will suffer a material detriment because, if the applicant is ejected from the premises and is successful in the appeal, the applicant would not be entitled to resume possession of the premises.

Balance of Convenience

  1. [91]
    The grant of a stay of the original decision is discretionary. Accordingly, the applicant must establish that the balance of convenience favours granting a stay of the primary decision. This requires the Appeal Tribunal to consider, where appropriate, the following relevant factors:
    1. the relative prospects of success of the applicant’s substantive appeal, and his ability to obtain effective relief;
    2. the degree of material detriment that will be sustained by the applicant as a result of refusing the application to stay of the operation of the primary decision, especially where such detriment is not remediable by a costs order or monetary award of compensation;
    3. the degree of material detriment that will be sustained by the applicant as a result of granting the application to stay of the operation of the primary decision, especially where such detriment is not remediable by a costs order or monetary award of compensation;
    4. whether a refusal of the stay would, directly or indirectly, render the substantive appeal futile, nugatory, or ineffectual;
    5. whether, in an appropriate case, the applicant has offered any undertaking or security as to compensation if the application for a stay of the original decision is granted and the appeal is dismissed; and
    6. the interests of justice, according to the circumstances of the case.[24]
  2. [92]
    This does not purport to be an exhaustive list of the factors which may be material to applying the balance of convenience in a specific case. Such an exercise would not be possible, a priori, as a result of the infinite number of variations which may exist in the factual matrix of any legal dispute.
  3. [93]
    The Appeal Tribunal is of the view that the applicant has no reasonably arguable case. If it were reasonably arguable, it would be tenuous. This factor militates against staying the primary decision.
  4. [94]
    A refusal of the stay would have the effect of ejecting the applicant from the residence the subject of the tenancy agreement. This is a substantial and irreversible detriment, although partially curable by a monetary order.
  5. [95]
    Mr Dupois gave extensive submissions regarding the deleterious effects the ejectment of the applicant from the premises would have on Ms Dupois. The applicant claims that Ms Dupois is his biological aunt.
  6. [96]
    The Appeal Tribunal accepts this is a relevant consideration. Its relevance is diminished by the fact that the applicant has not proven that his aunt could not be properly cared for at another location or with other relatives, especially having regard to the claimed financial resources of Mr Dupois.
  7. [97]
    This detriment must be counterbalanced against the fact that the applicant has not paid rent since 12 November 2015. As a result of non-payment of rent, the lessors have not adequately serviced their mortgage, or satisfied their obligations in respect of body corporate management fees and rates. The directors of the Lessors are intending to divest themselves of the asset because of the accrued liabilities caused by the applicant’s conduct.
  8. [98]
    Mr Dupois responds that he has offered the respondent an opportunity to enter into a new lease agreement with Mr Dupois. However, Mr Dupois has declined to make any payment for the rental arrears of the applicant, and he is not required to do so. But Mr Dupois must understand that, just as he has the right to decline to make payment on the arrears, the Lessors have the right to decline to enter into a lease agreement with him.
  9. [99]
    Mr Dupois claims that the Appeal Tribunal should infer, from the Lessors’ unwillingness to enter into a lease agreement with him, that the Lessors are not, in fact, in a difficult financial position. The Appeal Tribunal declines to draw this inference – the Lessors may have refused to enter into a lease agreement with Mr Dupois because of an irretrievable breakdown in their relationship, or for many other reasons. The Appeal Tribunal cannot infer from the Lessors’ refusal to enter into a lease agreement with Mr Dupois that the lessors are not experiencing some degree of impecuniosity.
  10. [100]
    The Appeal Tribunal is entitled to consider the interests of justice.
  11. [101]
    The applicant claims that he has failed to pay rent solely because he intends to claim the amount as an offset against any settlement or monetary award deriving from proceedings before the Magistrates Court. The proceedings to which the applicant appears to be referring is M1353-15, which was struck out on 11 December 2015.
  12. [102]
    In oral submissions, the applicant indicated that he intended to claim the rental arrears as an offset against any settlement or monetary award issuing from fresh proceedings in QCAT filed on 4 January 2016. This application contains many similarities to the proceedings struck out in M1353-15.
  13. [103]
    The payment of rent is not conditional on the matters complained of by the applicant. Thus, it is highly unlikely that the applicant will be entitled to receive such an offset even should the applicant be successful in his claim for rent abatement. The applicant has failed to furnish any persuasive legal basis for his purported claim for an offset.
  14. [104]
    In any event, to suggest that this Appeal Tribunal would stay the operation of the original decision to permit the applicant to continue to accrue rent in arrears which the applicant hopes to offset against a claim for an abatement of rent is utterly grotesque and misconceived. The stay facility is not an instrument to be cynically used to assist the applicant in breaching the terms of his lease agreement. This would be an abuse of process, and the suggestion is deserving of the utmost contempt of the Appeal Tribunal.
  15. [105]
    The rental arrears accrued by the applicant, which caused the respondent to seek a termination order, are entirely of his own design. The applicant does not appear, or claim to be, impecunious. Indeed, the unfortunate hardship inflicted on Ms Dupois is solely a product of the ill-conceived and improper legal machinations of the applicant. This dispute could have been avoided if the applicant had merely satisfied his obligations as a tenant under the lease agreement. The applicant – and the person for whom he is supposed to care – have been hoist most grievously by his own petard.
  16. [106]
    Even were this not the case, the applicant is subject to other termination order proceedings before the Magistrates Court. The outcome of such proceedings are likely to be unfavourable to the applicant. Furthermore, the respondent could elect to issue further notices to remedy breach and leave to facilitate the eviction of the applicant from the premises.
  17. [107]
    If the Appeal Tribunal were to stay the operation of the current proceedings, it would be a mostly pyrrhic victory for the applicant.
  18. [108]
    In such circumstances, the balance of convenience militates in favour of refusing the application for a stay of the operation of the primary decision.

CONCLUSION

  1. [109]
    The applicant has failed to establish that he has a reasonable argument that the original decision exhibits some form of legal, factual, or discretionary error justifying appellate intervention. This alone is sufficient to refuse the application to stay the operation of the primary decision.
  2. [110]
    In any event, the Appeal Tribunal finds that the balance of convenience militates in favour of refusing the application to stay the operation of the original decision.
  3. [111]
    Accordingly, the application to stay the operation of the primary decision in MCDT1581-15 should be refused.

ORDERS

  1. [112]
    It is the decision of the Appeal Tribunal that:
    1. the applicant is granted an extension of time within which to file an application for leave to appeal to 12 January 2016;
    2. the applicant is granted a waiver of any outstanding procedural requirements, and is taken to have made the application for leave to appeal by oral submission on 12 January 2016;
    3. the appeal filed by the applicant on 2 December 2015 is taken to be the basis for the applicant’s application for leave to appeal;
    4. the application for a stay of the decision and orders of the Tribunal in MCDT1581-15 is refused;
    5. the warrant of possession directed to be issued by the Adjudicator on 30 November 2015 in proceeding MCDT1581-15 is reissued on and from 18 January 2016;
    6. in lieu of Order 3 of the Adjudicator dated 30 November 2015 in MCDT1581-15, substitute the following:

The warrant shall take effect on 18 January 2016 and remain in effect for 14 days, to expire at 6:00PM on 1 February 2016.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 142(1).

[2]  QCAT Act, s 142(3)(ii).

[3]  QCAT Act, s 8, sch 3, definition of “minor civil dispute” paragraph (e).

[4]  QCAT Act, s 8, sch 3, definition of “tenancy matter”.

[5]  QCAT Act, r 95.

[6]  QCAT Act, s 143(2)(a).

[7]  QCAT Act, s 143(3).

[8]  QCAT Act, s 4(c).

[9]  QCAT Act, s 3(b).

[10]  QCAT Act, s 61.

[11]  QCAT Act, s 43(2)(b)(iv).

[12]  QCAT Act, ss 43(3)-(4).

[13] La Macchia v Department of Housing and Public Works [2015] QCATA 143; Kanai v Department of Housing and Public Works (Unreported, Appeal Tribunal of the Queensland Civil and Administrative Tribunal, Carmody J, 15 September 2015); Holliday v Franklin (Qld) Pty Ltd [2015] QCATA 135; Wheeler & Smith v Body Corporate for Calypso & Anor [2015] QCATA 162; Coulthard v National Real Estate Solutions Pty Ltd [2015] QCATA 116.

[14] Berry v Green [1999] QCA 213, [4]; Carrie v Department of Communities (Housing and Homelessness Service) [2010] QCATA 15, [6]; Woodgate Beach Asian Pacific Realty Pty Ltd v Gerard [2010] QCATA 64, [8].

[15]Commissioner of Taxation v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220, 222-223; Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322; KG v Public Trustee of Queensland [2011] QCATA 1; Wheeler & Smith v Body Corporate for Calypso Towers & Anor [2015] QCATA 162.

[16] Wheeler & Smith v Body Corporate for Calypso Towers & Anor [2015] QCATA 162, [5].

[17]  The applicant possesses the persuasive onus to establish the required facts in support of the grant of a stay of the operation of the original decision: Wheeler & Smith v Body Corporate for Calypso Towers & Anor [2015] QCATA 162, [10]. The standard of proof is discussed in Briginshaw v Briginshaw (1938) 60 CLR 336. However, an application to stay the operation of the original decision only requires a preliminary examination of the facts to make out the necessary elements of the application – the Appeal Tribunal must be cautious not to prejudge or predetermine the substantive merits of the case.

[18] Legal Services Commissioner v Baker (No 1) [2006] 2 Qd R 107, [30] (referring to this requirement as a “condition precedent” for being granted a stay of the primary decision); Deputy Commissioner Stewart v Kennedy [2011] QCATA 254, [14].

[19] Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337, [6], [8].

[20]  RTRAA, s 280(2).

[21]  RTRAA, s 281(1).

[22]  RTRAR, sch 1, item 44(3)(d).

[23] Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-126.

[24] La Macchia v Department of Housing and Public Works [2015] QCATA 143.

Close

Editorial Notes

  • Published Case Name:

    Kerry Crinis v Ray White Paradise Group

  • Shortened Case Name:

    Crinis v Ray White Paradise Group

  • MNC:

    [2016] QCATA 90

  • Court:

    QCATA

  • Judge(s):

    Carmody J

  • Date:

    15 Jan 2016

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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