Stone v Grundy[2018] QCATA 68

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is an appeal from an Adjudicator who heard an application by a tenant, Belinda Stone, for compensation following the termination of her fixed term tenancy. In earlier proceedings the tenancy had been terminated on the grounds that the lessor, Nicole Grundy, would suffer excessive hardship if it were not terminated.  At the time of the termination the tenancy had some 13 months to run (it was a two year fixed term tenancy).
2. [2]
   Four weeks after vacating the premises, pursuant to the termination order, the tenant applied to the tribunal for compensation from the lessor because of the loss of the tenancy.  This claim was refused by the Adjudicator.  The tenant now appeals against that decision saying that the grounds relied on by the Adjudicator were wrong in law, and the Adjudicator had made other errors.

What happened in more detail

3. [3]
   In order to understand the grounds of appeal it is necessary for me to recite what happened in greater detail. 
4. [4]
   The lessor and tenant had entered into a residential tenancy agreement with respect to the premises for a period of two years from 5 December 2015 to 5 December 2017. 
5. [5]
   In May 2016 the lessor was made redundant at work, and she decided to sell the premises. She notified the tenant of this fact, and there were negotiations between them concerning what compensation the lessor would pay to the tenant if the tenant vacated the premises. 
6. [6]
   On 13 July 2016, and before any agreement was reached with the tenant about compensation upon vacating, the lessor contracted to sell the premises. In the contract, she agreed to provide the buyer with vacant possession. The original settlement day was 12 October 2016 but when it appeared that the tenant was not going to leave the premises, this was extended by agreement between the lessor and the buyer.
7. [7]
   On 12 August 2016 the lessor served a Form 12 ‘notice to leave’ on the tenant. This stated that it was ‘with ground’ – the ground stated as being ‘sale contract’. The Form 12 gave two months’ notice to leave and had a handover day of 14 October 2016.
8. [8]
   On 4 October 2016 the lessor applied to the tribunal in MCDT1427/16 for an order terminating the tenancy. The ground was ‘excessive hardship’. The statutory provision governing such applications requires the lessor to show that she ‘would suffer excessive hardship if the agreement were not terminated’.^[1]  The statute provides that the tribunal ‘may’ make the order ‘if it is satisfied that the applicant has established the ground of the application’.^[2]   The use of the word ‘may’ suggests that the tribunal has a discretion whether or not to make the order.
9. [9]
   On 31 October 2016 the application to terminate the tenancy was heard. I have listened to the audio recording of this hearing. The lessor and the tenant attended. The Adjudicator adjourned the application for 7 days to give the lessor a better opportunity to get the necessary evidence together to show that she would suffer excessive hardship if the tenancy were not terminated. 
10. [10]
    On 7 November 2016 at the adjourned hearing, the parties attended before the same Adjudicator. I have listened to the audio recording of this hearing. The Adjudicator heard the lessor’s evidence about hardship and the tenant’s response. The Adjudicator was satisfied that the lessor would suffer excessive hardship if the termination order were not made, and that it was right to make such an order. A final order was made terminating the tenancy about two weeks from the date of hearing. A warrant of possession was issued.
11. [11]
    The tenant vacated the premises in compliance with the termination order and warrant, and the sale of the house went ahead. It was settled on 6 December 2016.^[3]
12. [12]
    On 16 November 2016 the Residential Tenancies Authority (‘RTA’) received a dispute resolution request on Form 16 from the tenant. Although I have not seen this document, it is likely that it sought conciliation of the tenant’s claim for compensation for loss of the tenancy. 
13. [13]
    On 24 November 2016 the RTA issued a letter to the tenant stating that the dispute was unsuitable for conciliation. Going to the RTA for conciliation in this way before making a claim for compensation in the tribunal is a requirement of section 416 of the RTRAA. That section says that a party who wishes to apply to the tribunal under the Act about an issue can only do so if the party has first made a dispute resolution request about the issue and (in effect) the dispute resolution process has been completed.
14. [14]
    On 21 December 2016, in MCDT1796/16, the tenant applied to the tribunal for compensation for loss of her tenancy. In the application, she said that the loss of the tenancy had caused her relentless stress and pressure and she had identifiable expenses and losses.
15. [15]
    In her application, the tenant relied on two provisions in the RTRAA:-

    1. (a)
       section 419, as supplemented by section 420, application for an order about the breach of an agreement; and
    2. (b)
       section 350(2) – an order in favour of the tenant where the tribunal terminates the tenancy because of the lessor’s excessive hardship.
16. [16]
    On 17 January 2017 the tenant’s application was heard by the tribunal. It came before the same Adjudicator who had heard the lessor’s termination application 10 weeks previously. 
17. [17]
    The Adjudicator decided that the applications under sections 419 and 420 failed because the lessor was not in breach of the agreement – the tenancy had come to an end by order of the tribunal and therefore there was no breach.^[4]
18. [18]
    The Adjudicator also decided that she had no jurisdiction to hear the claim under section 350(2) because she was only able to deal with such a claim at the same time as terminating the tenancy and in the same order as the termination.^[5]
19. [19]
    On those grounds, the Adjudicator dismissed the claim for compensation, but allowed a claim to which the lessor consented under which the lessor was to pay the tenant the sum of $323.03 as reimbursement of electricity. This part of the order was by consent.  The dismissal of the remainder of the claim for compensation was not by consent and so an appeal in respect of the claim for compensation is not precluded by the consent.

The appeal

20. [20]
    The application to appeal and the attached submissions contend that the Adjudicator made errors of law in all three hearings. The result is that it might appear unclear whether this appeal is against the decisions made in MCDT1427/16 (the termination proceedings dealt with in the two hearings of 31 October and 7 November 2016) as well as the decision made in MCDT1796/16 (the compensation proceedings dealt with on 17 January 2017). 
21. [21]
    The way Part B of the relevant form is completed however,^[6] makes it clear that the appeal is only against the compensation proceedings - MCD1796/16 - and not against the decisions made in the termination proceedings - MCDT1427/16.  This is also clear from the opening paragraphs of the tenant’s submissions for the appeal filed in the tribunal on 27 March 2017 and 7 June 2017, and from paragraphs 15 and 16 in the appeal submissions attached to the application to appeal.
22. [22]
    This appeal is therefore limited to the decision made on 17 January 2017 in MCDT1796/16.  The grounds of appeal are:-

    1. (a)
       The Adjudicator was wrong about section 286;
    2. (b)
       The Adjudicator was wrong about section 419;
    3. (c)
       The Adjudicator had jurisdiction under section 429(1) to make the order for compensation;^[7]  
    4. (d)
       The Adjudicator was wrong to decide that she could not make an order under section 350(2) to compensate the tenant on a subsequent application by the tenant; and
    5. (e)
       The Adjudicator failed to observe the rules of natural justice and failed to give adequate reasons.

Appeal about section 286

23. [23]
    Dealing firstly with the appeal about section 286, this section permits a lessor to apply to the tribunal for a termination order because the lessor has entered into a contract to sell the premises with vacant possession. It reads:-

286 Notice to leave if premises being sold

1. The lessor under a periodic agreement may give a notice to leave the premises to the tenant because the lessor has entered into a contract to sell the premises with vacant possession.
2. A notice to leave under this section is called a notice to leave for sale contract.

Note—

See sections 329(2)(f) and 330(2)(f) for requirements about the handover day for a notice to leave given because of a sale contract.

24. [24]
    As can be seen from subsection (1), section 286 only applies to a periodic tenancy. It cannot be used to end a fixed term tenancy which is still running as in this case. It could be used however in the case of a fixed term tenancy which had continued as a periodic tenancy.^[8]
25. [25]
    The tenant says that the Adjudicator misunderstood section 286 and thought it applied to her fixed term tenancy. The tenant provides a number of excerpts from the hearings of the earlier termination proceedings on 31 October 2016 and 7 November 2016 where the Adjudicator said things indicating this to be the case. I agree that the Adjudicator did indicate clearly in those earlier hearings that under section 286 the lessor had a right to a termination order based on the Form 12 which had been served on the tenant despite there being 13 months to run on the fixed term tenancy. I agree therefore that the Adjudicator believed that section 286 applied to this matter when it did not. 
26. [26]
    There is however, no appeal against the decisions made in those earlier proceedings.
27. [27]
    The Adjudicator’s reason for dismissing the claim for compensation in the decision under appeal was lack of jurisdiction. It was not affected by the Adjudicator’s earlier view about section 286. This ground of appeal would therefore have no chance of success in this appeal.

Appeal about section 419

28. [28]
    Turning to the appeal about section 419, this section permits a lessor or a tenant to apply to the tribunal about a breach of the tenancy agreement. 
29. [29]
    What the tenant says about section 419 in this appeal is simply that the Adjudicator failed to apply it.^[9]
30. [30]
    In Part C of her application for compensation in the decision under appeal, the tenant sought an award of $9,241.59 ‘as compensation for breach of agreement’. 
31. [31]
    In answer to the question in the form ‘what are your reasons for seeking the above order’ the tenant alleged that the lessor’s breach was ‘by terminating earlier than the end date’. Limited to that allegation, the application for compensation was bound to fail as the Adjudicator found.^[10] This is because the termination was achieved properly by successfully applying to the tribunal for a termination order on a ground permitted by the RTRAA. This could not be a breach of the tenancy agreement.
32. [32]
    In the submissions attached to the application for compensation however, the tenant says she was informed that the lessor had signed a contract giving vacant possession to the buyer,^[11] and then the tenant complains of a number of things done by the lessor and the selling agent which caused her to feel pressured and intimidated to move out of the premises.^[12]    
33. [33]
    If the tenant is right about these things, it is possible that the lessor was in breach of the tenancy agreement after all. This is because, together with the Form 12 requiring her to vacate the premises, these things may have amounted to a repudiation or renunciation of the tenancy agreement by the lessor. A further alternative is that the lessor was in breach of the term relating to quiet enjoyment. This is usually in Clause 19 of the tenancy agreement. It is also an obligation of the lessor under section 183 of the RTRAA and is incorporated into the tenancy agreement automatically under section 52. It reads as follows:-

183 Quiet enjoyment

1. The lessor must take reasonable steps to ensure the tenant has quiet enjoyment of the premises.
2. The lessor or lessor’s agent must not interfere with the reasonable peace, comfort or privacy of the tenant in using the premises.

Maximum penalty for subsection (2)—20 penalty units.

34. [34]
    Whether or not there is a breach of the term as to quiet enjoyment in a particular case is a question of fact. In David Jones Limited v Leventhal (1927) 40 CLR 357 at 370, by majority the High Court held that court proceedings to enforce a right of re-entry in a lease because of non-payment of rates, where the lessee’s liability for rates was in dispute, was not a breach of the covenant of quiet enjoyment. This was because the bringing of the proceedings does not as a matter of fact interfere or disturb the possession or enjoyment by the lessee of the land demised. It was not until judgment is obtained that there is any such interference or disturbance.
35. [35]
    On the other hand, in the English case of Kenny v Preen [1963] 1 QB 499, threats by letter and shouting and banging on the door breached the lease because the behaviour tended to deprive the tenant of the full benefit of the right to possession and because the landlord sought to bring an end to the lease by intimidation.
36. [36]
    By section 29 of the Queensland Civil and Administrative Tribunal Act 2009 Qld (‘QCAT Act’) the tribunal has an obligation to ensure that a party understands the nature of assertions made in the proceeding and the legal implications of the assertions. This can justify the tribunal suggesting an alternative basis to a claim not put forward by the applicant, but which arises from the facts relied on by the applicant.^[13] One good reason for this is that it is rare for applicants accurately to identify the correct section of the RTRAA or clause in the tenancy agreement which applies to their case. Instead, applicants usually set out the facts of what happened relying on the tribunal to identify the correct law or contractual provision applying to those facts. One question for the Adjudicator was therefore whether the intimidation referred to by the tenant in her application for compensation was being put forward as a breach of the tenancy agreement, or whether it was merely being mentioned in passing, or whether it was mentioned to demonstrate the ‘relentless stress and pressure’ as justifying the amount claimed. If the intimidation was being relied on as a breach of the tenancy agreement then the Adjudicator might have considered whether it amounted to a breach of the term of quiet enjoyment.
37. [37]
    The Adjudicator did indeed seek clarification of the tenant’s claim. She asked the tenant this question: ‘So, Ms Stone, on what basis do you make these claims?’ The tenant answered by saying that she had a two year lease which was terminated through no fault of hers.^[14] The Adjudicator asked again about whether the tenant was saying that there had been a breach of the agreement and the tenant said ‘Sure. I had a two year lease’.^[15]
38. [38]
    In my view the Adjudicator made sufficient attempts to clarify the tenant’s allegation about breach of the tenancy agreement. Despite referring to intimidation in her submissions it was sufficiently clear at the hearing that the tenant was not relying on such alleged intimidation as itself a breach of the agreement.
39. [39]
    The tenant has however, raised this issue again in this appeal. It is not mentioned in her submissions attached to the application to appeal but it is in submissions in support of the appeal filed on 7 June 2017.^[16] There the tenant says:-

The lessor breached the agreement by initiating a set of actions that greatly disturbed the tenant’s peace and quiet enjoyment of the premises.  The ‘Notice to Leave with ground – sale contract’ caused the tenant stress and anxiety... The tenant felt bullied and intimidated by the selling agents...

The applicant understands that it was the decision of the Tribunal on 7 November 2016 that terminated the lease, however there still remained the fact of the lessor’s prior actions that were in breach of the tenancy agreement.  The adjudicator failed to recognise those breaches because she stated, on many occasions throughout the hearings, that the ‘Notice to Leave with ground – sale contract’ issued by the Lessor was valid and thereby the adjudicator shifted the question of ‘reasonableness’ to the tenant’s side alone in both proceedings.

40. [40]
    The difficulty with this argument is that it is made in this appeal. It was not put before the Adjudicator in the way in which it is now expressed. Instead, as I have said above, it was unclear in the application for compensation whether these ‘prior actions’ were being relied on as a breach – and when asked to clarify the claim at the hearing the tenant did not rely on them as a breach.
41. [41]
    The Adjudicator was not obliged to advise the tenant that she could have a claim for compensation for breach of the term as to quiet enjoyment when the only factual basis for a breach that the tenant identified was the early end of the fixed term tenancy. Indeed, if the Adjudicator had done so, the lessor would have reason to complain that the tenant was being helped to get her case in order and this was unfair.^[17]
42. [42]
    Since the Adjudicator was correct in the way she handled the application under section 419 and in her decision under that section, this ground of appeal must fail.

Appeal about section 429(1)

43. [43]
    This ground of appeal is that the Adjudicator had jurisdiction under section 429(1) to deal with the tenant’s claim for compensation in MCDT1796/16, and the Adjudicator failed to exercise this jurisdiction.
44. [44]
    Section 429 reads as follows:-

429 General disputes between lessors and tenants or providers and residents

1. If there is a dispute between the lessor and tenant, or provider and resident, about an agreement, either party may apply to a tribunal for an order, and the tribunal may make any order it considers appropriate, to resolve the dispute.
2. An application under subsection (1) may be made by a cotenant.

45. [45]
    The difficulty for this ground of appeal is that section 429 only gives the tribunal jurisdiction to resolve disputes between the parties ‘about an agreement’. It is unclear exactly what this empowers the tribunal to do. It would certainly seem to be a prerequisite to jurisdiction under section 429 that there is an agreement. Section 429 is not needed to provide jurisdiction about whether an agreement exists. This is because jurisdiction can be found elsewhere in the RTRAA for the tribunal to say whether or not a stated agreement is a residential tenancy agreement or a rooming accommodation agreement.^[18]
46. [46]
    Section 429 would clearly give the tribunal jurisdiction to decide the terms and parties to the agreement, and to construe the agreement. 
47. [47]
    Since the provisions of the RTRAA are so comprehensive, it is difficult to identify any other type of application which would require any additional jurisdiction conferred by section 429. 
48. [48]
    An exception would possibly be the tribunal’s jurisdiction to deal with the rental bond held by the RTA. Under section 137, the RTA is required to comply with a tribunal order about the bond.  However, there is no provision in the RTRAA giving the tribunal jurisdiction to make an order about the bond. If bond orders are within section 429, then it would need to be construed much more widely than its ordinary and natural meaning. I do not think it is necessary to say that section 429 confers on the tribunal jurisdiction to make a bond order, because it is possible to imply from the words of section 137 that the tribunal can make the orders envisaged in that section.^[19]
49. [49]
    It follows that there is no need to give section 429 a wider meaning than its natural and ordinary meaning in order to achieve the purpose of the Act. In these circumstances I think that the jurisdiction conferred by section 429 is restricted to disputes ‘about an agreement’. Of particular relevance here, this means that it does not confer jurisdiction to deal with a breach of the tenancy agreement – instead that is given by section 419. It does not confer jurisdiction to award compensation to the tenant if the lessor has successfully applied to terminate the tenancy because of excessive hardship – instead that is given by section 350(2).
50. [50]
    It follows that the appeal relying on section 429 would have no chance of success.

Appeal about section 350(2)

51. [51]
    The Adjudicator decided that she could not award the tenant compensation for loss of the tenancy under section 350(2) because such an order would need to be made at the same time as making the termination order. It is understandable that the Adjudicator reached this conclusion because the wording of the section clearly suggests it:

350 Issue of warrant of possession

1. If a tribunal makes a termination order on an application made other than by a tenant, it also must issue a warrant of possession.
2. If the termination order is made on an application made because of excessive hardship, as well as issuing the warrant of possession, the tribunal may make any other order it considers appropriate including, for example, an order that the applicant pay compensation to the other party to the agreement for the other party’s loss of the tenancy.

52. [52]
    The question however, is whether it is possible for a tenant whose tenancy has been terminated because of excessive hardship on the application of the lessor, to apply subsequently to the tribunal for an order under section 350(2).
53. [53]
    This would be central to whether the appeal about section 350(2) could succeed.
54. [54]
    The tribunal’s jurisdiction is purely statutory. Three provisions in the QCAT Act require a valid application under the RTRAA to be before the tribunal before it has jurisdiction under that Act.
55. [55]
    The first is section 12 of the QCAT Act, which comes into play because section 11 gives the tribunal jurisdiction to hear and decide a ‘minor civil dispute’.
56. [56]
    Section 12 describes when the tribunal may exercise this jurisdiction:-

12 When jurisdiction for minor civil dispute exercised

1. The tribunal may exercise its jurisdiction for a minor civil dispute if a relevant person has, under this Act, applied to the tribunal to deal with the dispute.
2. A relevant person may, as provided for in subsection (3), agree to limit the person’s claim to the prescribed amount in order to bring the claim within the tribunal’s jurisdiction for a minor civil dispute.
3. A relevant person limits the person’s claim to the prescribed amount by applying to the tribunal to deal with the claim as a minor civil dispute.
4. In this section—

relevant person means—

1. for a claim to recover a debt or liquidated demand of money—a person to whom the debt is owed or money is payable; or
2. subject to paragraphs (c) to (g), for a claim arising out of a contract between a consumer and a trader—the consumer; or
3. for a claim arising out of a contract between 2 or more traders—any of the traders; or
4. for a claim for payment of an amount for damage to property caused by, or arising out of the use of, a vehicle—a person incurring loss because of the damage;

or

5. for a claim for repair of a defect in a motor vehicle under the Motor Dealers and Chattel Auctioneers Act 2014, schedule 1, section 13—the buyer of the vehicle; or
6. for a tenancy matter—a person who, under the Residential Tenancies and Rooming Accommodation Act 2008, may apply to the tribunal for a decision in relation to the matter; or
7. for a claim that is the subject of a dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011—a party to the dispute; or
8. for a matter under the Building Act 1975, chapter 8, part 2A—a person who, under the Building Act 1975, chapter 8, part 2A may apply to the tribunal for a decision in relation to the matter.

57. [57]
    It can be seen that section 12(1) provides a constraint here. It requires an applicant to be a ‘relevant person’. Section 12(4)(f) defines ‘relevant person’ in the case of RTRAA applications. It specifically requires that the person must be able to apply to the tribunal about a matter under the RTRAA. In other words, the tribunal can only deal with applications under the RTRAA made by persons who may apply to the tribunal under the RTRAA.
58. [58]
    The second set of provisions in the QCAT Act having the same effect is the definition of minor civil dispute itself. This is in Schedule 3 of the Act. A ‘tenancy matter’ is one type of minor civil dispute. A ‘tenancy matter’ is defined as follows:-

tenancy matter means 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.

59. [59]
    Again, for a matter to be a ‘tenancy matter’, and therefore within the tribunal’s jurisdiction, the person applying must have a right to do so under the RTRAA.
60. [60]
    The third provision is section 9 of the QCAT Act which says:

9 Jurisdiction generally

1. The tribunal has jurisdiction to deal with matters it is empowered to deal with under this Act or an enabling Act.
2. Jurisdiction conferred on the tribunal is—

1. original jurisdiction; or
2. review jurisdiction; or
3. appeal jurisdiction.

3. Without limiting the Acts Interpretation Act 1954, section 49A, an enabling Act confers jurisdiction on the tribunal to deal with a matter if the enabling Act provides for an application, referral or appeal to be made to the tribunal in relation to the matter.
4. The tribunal may do all things necessary or convenient for exercising its jurisdiction.

61. [61]
    Section 9(3) therefore, again, (subject as there provided) requires that the tribunal can only deal with a RTRAA matter if the RTRAA provides that an application can be made to the tribunal.
62. [62]
    The reference in section 9(3) to 49A of the Acts Interpretation Act 1954 (Qld) is to this provision:

49A Jurisdiction of courts and tribunals

If a provision of an Act, whether expressly or by implication, authorises a proceeding to be instituted in a particular court or tribunal in relation to a matter, the provision is taken to confer jurisdiction in the matter on the court or tribunal.

63. [63]
    In my opinion there is nothing in section 350(2) which can be described as impliedly authorising a proceeding to be instituted in relation to a matter. This is because section 350(2) is engaged when there is already an application before the tribunal (that is an application by the lessor to terminate on the grounds of excessive hardship). There is no reason or requirement to imply any other procedure. In the circumstances, section 49A does not assist.
64. [64]
    It can be seen therefore than section 350(2) operates to bypass the need for the RTA conciliation process required by section 416. That section requires RTA conciliation to have been initiated about an issue and (in effect) completed before an applicant may apply under the Act about the issue. Since a section 350(2) compensation order can be made without an application at all, there is no need for the tenant to go through the RTA conciliation process. This is consistent with the fact that the section 416 process does not apply to an ‘urgent’ application, such as the lessor’s application for termination on the grounds of excessive hardship itself.^[20]
65. [65]
    There is nothing in the RTRAA which permits a tenant to apply to the tribunal for compensation because the lessor has, in previous proceedings, successfully applied to terminate the tenancy on the grounds of excessive hardship. Section 350(2) itself does not permit such an application. It only permits the tribunal of its own motion to make an order compensating the tenant. And necessarily this would be when the tribunal is dealing with the lessor’s termination application on the grounds of excessive hardship.
66. [66]
    The result is that the tribunal can only award compensation to a tenant whose fixed term tenancy has been terminated on the grounds of the lessor’s excessive hardship under section 350(2) when making an order for such termination. If the tribunal were to adjourn consideration of such compensation, for example to allow the tenant’s losses to crystallise on providing vacant possession, then this would be regarded as a continuation of the original proceeding and therefore still within section 350(2).
67. [67]
    Once the termination proceeding has ended however, there is no application before the tribunal any more. In those circumstances the tribunal would not have jurisdiction to make an order favourable to the respondent. Effectively it means that the tribunal is functus officio after that time (having fulfilled the function). And there is nothing in the RTRAA which permits a subsequent application for compensation to be made by the tenant on the ground that the fixed term tenancy has previously been terminated on the grounds of the lessor’s excessive hardship. 
68. [68]
    It follows for the purposes of this appeal that the Adjudicator was right to dismiss the tenant’s application for compensation in so far as it relied on 350(2). This ground of appeal therefore has no chance of success.

Failing to observe the rules of natural justice and failing to give adequate reasons

69. [69]
    The basis of this ground of appeal is explained in the tenant’s submissions in her application to appeal,^[21] and also in her later submissions.^[22]
70. [70]
    Leaving aside points made by the tenant that she did not get a fair hearing because the Adjudicator found against her for the reasons dealt with in other grounds of appeal, there are five points being made:-

    1. (a)
       The Adjudicator gave advice to the lessor about being premature in her application to terminate the tenant and this was unfair;
    2. (b)
       The Adjudicator gave an opportunity to the lessor to gather evidence about financial hardship by adjourning the first hearing and advised the lessor what evidence would be sufficient. This was in contrast to the absence of advice given to the tenant and was an unfair advantage given to the lessor;
    3. (c)
       The above may show bias in favour of the lessor;
    4. (d)
       Not accepting the tenant’s offer to put in evidence her credit card statements to show her financial hardship; and
    5. (e)
       Not allocating sufficient time to hear the matter.
71. [71]
    A closer examination of the submissions demonstrates that all five issues raised here refer to the earlier proceeding, which is not being appealed against. Therefore there is nothing in these grounds which can properly be considered in this appeal.

Would it be right to enlarge the appeal to deal with MCDT1427/16?

72. [72]
    I have carefully considered whether it would be right to treat this appeal as also one against the decisions made in the earlier proceeding of MCDT1427/16. Although the tenant’s criticism of the decisions made in that earlier proceeding probably have some justification, the difficulty is that she has made it clear in her application to appeal and in her submissions that she is not appealing against that earlier proceeding. Raising this issue pending the resolution of this appeal would therefore amount to giving the tenant legal advice, and assisting her to the disadvantage of the lessor. It would also require the tribunal to call for evidence and submissions about the reasons why she did not appeal against that proceeding and for the delay. This is because any such appeal would be out of time. Although the tribunal has an obligation under section 29 of the QCAT Act to ensure that a party understands the legal implications of assertions made, I do not think the obligation requires the issue about whether the appeal should be enlarged in this way to be raised before deciding this appeal.^[23]

Conclusions

73. [73]
    This is an appeal only against the decision made in MCDT1796/16, made on 17 January 2017. None of the grounds of appeal have a chance of success.
74. [74]
    Appeals in minor civil disputes can only be brought with the leave of the Appeal Tribunal. Such leave will only be given if there is an arguable case on appeal. Such appeals are only arguable if the decision maker is in error in law, or has made a factual finding which could not be made on the evidence. This is not the case here. Leave to appeal is refused and the appeal therefore fails.