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Gubier v Queensland Department of Housing and Public Works[2019] QCATA 4

Gubier v Queensland Department of Housing and Public Works[2019] QCATA 4

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Gubier v Queensland Department of Housing and Public Works [2019] QCATA 4

PARTIES:

JACQUELINE GUBIER

(applicant)

v

QUEENSLAND DEPARTMENT OF HOUSING AND PUBLIC WORKS

(respondent)

APPLICATION NO:

APL306-18

ORIGINATING APPLICATION NO/S:

MCDT1678/17 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

14 January 2019

HEARING DATE:

7 January 2019

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

ORDERS:

  1. The application to stay the orders of 31 October 2018 is refused.
  2. The Warrant of Possession issued on 31 October 2018 is re-instated to take effect on 19 February 2019 and remain in effect for 14 days, to expire at 6:00pm on 5 March 2019.
  3. The warrant shall be executed as soon as reasonably practicable after taking effect.
  4. Entry under the Warrant shall be between the hours of 8:00am and 6:00 pm only.

CATCHWORDS:

RESIDENTIAL TENANCY DISPUTE – public housing  tenancy – where tenancy terminated for failure to occupy premises – where tenant applies for leave to appeal that order – where tenant seeks stay of order pending determination of appeal – where interim stay granted – whether interim stay should be extended until application for leave to appeal determined – where tenant alleges that premises uninhabitable – where tenant has not occupied premises for four years – guidelines for exercise of discretion to grant stay – application to extend or renew stay of proceedings refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 58, s 145

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 12, s 419

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685

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

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

Berry v Green [1999] QCA 213

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

Elphick v MMI General Insurance Ltd & Anor [2002]

QCA 347

Hessey-Tenny & Anor v Jones [2018] QCATA 131

King v King [2010] QCATA 84

McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1

Partington v Urquhart [2013] QCATA 204

Sali v SPC Limited (1993) 67 ALJR 841

Simonova v Department of Housing and Public Works

 [2018] QCA 60

Watkins v Queensland Building and Construction Services [2013] QCAT 535; [2014] QCA 172

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Mr A Lossberg of counsel  instructed by Crown Law

REASONS FOR DECISION

  1. [1]
    On 31 October 2018, on the application of the landlord (`the Department’) the residential tenancy agreement[1] between the parties was terminated, as from 29th of November 2018, on the ground of the failure of the tenant (`Gubier’) to occupy the subject premises.
  2. [2]
    On 22 November 2018 Gubier applied for a stay of that decision, and on the same day she applied for leave to appeal.
  3. [3]
    On 26 November 2018 an interim order was made, staying execution of the warrant of possession until further or other order. Gubier now seeks to have the stay extended until the determination of her appeal.
  4. [4]
    I have considered Gubier’s further submissions sent to the tribunal on 10 January 2019. They repeat a good deal of material submitted earlier, and relate substantially to the forthcoming substantive appeal. They should be addressed to the appeal tribunal on that occasion.
  5. [5]
    The present hearing is simply to determine whether that interim order should be continued or discontinued. The merits of the substantive appeal will be determined at a later time. However, the prima facie strength of the proposed appeal, in so far as it can be discerned at this stage, is a consideration relevant to the discretion to grant or refuse a stay.[2]
  6. [6]
    At this hearing, Gubier stated that if the stay were extended she would not return to the premises unless and until she is satisfied that a mould, which, so she says, renders them uninhabitable, is eliminated.
  7. [7]
    Since leaving the premises in January 2015[3] Gubier has resided with her parents in the pleasant surrounds of Middle Park.
  8. [8]
    The Department has offered, and still offers[4], to provide Gubier with alternative, newer State-owned accommodation. However, she declines to accept this offer unless and until the Department, at its expense, fumigates her furniture and other effects, and moves them to the new premises.
  9. [9]
    Gubier estimates that the cost of fumigation, apart from removal and other expenses, would be in excess of $12,000.[5] The Department has refused to pay that amount, or any of the amounts set out in the applicant’s said `List of Claims’, alleging that they are statute-barred.[6] That is a matter to be decided in the substantive appeal.
  10. [10]
    It is trite law that the filing of an appeal does not stay or suspend the decision in question.[7] A stay order is a matter of discretion, striking, as best one can, a balance of convenience between the interests of the parties.
  11. [11]
    The tribunal must be satisfied that the balance of convenience favours a suspension of the decision.[8] The initial presumption is that the successful party should immediately have the benefit of its success.[9]
  12. [12]
    The tribunal’s power to grant a stay is to be found in section 58 of the QCAT Act,[10] but in a case where leave to appeal (as distinct from the substantive appeal) has not yet been granted, exceptional circumstances must be shown.[11]
  13. [13]
    This is not a case where the applicant can reasonably claim homelessness or destitution if a stay is not granted. Not only has she lived with her parents for some years after leaving the subject premises, but a Departmental offer of alternative accommodation remains open.[12] The substantial sums paid to Gubier’s experts for evidence suggest that she is not entirely without means.
  14. [14]
    As already noted, a relevant consideration is the likelihood of success on appeal[13]; prima facie the prospects here not promising. The Department’s section 419 point seems to have substance,[14] and according to the learned Member[15] her decision turned upon a reasoned preference for the expert evidence for the Department.  It is not an error of law to prefer one witness to another, even where reasonable minds may differ.[16] Such decisions are the prerogative of the primary decision maker, as judge of fact and credit. But of course this preliminary view does not preclude other arguments that may be advanced on appeal.
  15. [15]
    The Department contends:

The Department now has three properties allocated to [Gubier] with her residing in neither. [sic] The Department contends [that] precious and limited public housing resources are being wasted while [she] continues to proceed with Tribunal proceedings that have few (if any) prospects of success.[17]

  1. [16]
    This is, in my view, a pertinent consideration. The interests of needy members of the community, as well as the parties’ interests, are involved. Analogously, the High  Court has severely criticised protracted litigation at public expense, while other members of the public await unnecessarily long for their days in court:

[T]he history of these proceedings reveals an unduly permissive approach at both trial and appellate level … [T]he time of the court is a publicly funded resource. Inefficiencies in the use of that resource …are to be taken into account ….[18]  

What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.[19]

  1. [17]
    Indeed, if there is any exceptionality in this case, it lies on the side of the Department. In the circumstances Gubier has not demonstrated an acceptable case for extension of the stay. The application for a stay should be refused, and the temporary stay order discharged.

ORDERS

  1. [18]
    The application to stay the orders of 31 October 2018 is refused.
  2. [19]
    The Warrant of Possession issued on 31 October 2018 is reinstated to take effect on 19 February 2019 and remain in effect for 14 days, to expire at 6:00pm on 5 March 2019.
  3. [20]
    The warrant shall be executed as soon as reasonably practicable after it takes effect.
  4. [21]
    Entry under the warrant shall be between the hours of 8:00am and 6:00pm only.

Footnotes

[1]As defined by the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (`RTRAA’) s 12.

[2]Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 at [4]; Hessey-Tenny & Anor v Jones [2018] QCATA 131 at [29] per Daubney P.

[3]Reasons for judgment 31 October 2018; oral evidence of the applicant 7 January 2019.

[4]Submissions of the Department filed 4 December 2018 paragraph 39.

[5]Applicant’s `list of claims’ Document C-3, undated, page 1 item 3; oral evidence of applicant 7 January 2019.

[6]Submissions of the Department filed 4 December 2018 paragraph 27; RTRAA s 419.

[7]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 145(1).

[8]Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695; King v King [2010] QCATA 84.

[9]Commissioner of Taxation v The Myer Emporium Ltd (No 1) [1986) 160 CLR 220 at 222; Berry v Green [1999] QCA 213 at [3]; Partington v Urquhart [2013] QCATA 204 at [3].

[10]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 58(1).

[11]Hessey-Tenny & Anor v Jones [2018] QCATA 131 at [24] per Daubney P; Simonova v Department of Housing and Public Works [2018] QCA 60 at page 5 per McMurdo JA.

[12]Submissions of the Department filed 4 December 2018 paragraph 44.

[13]Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 at [4].

[14]On the inflexibility of special statutory time limits as against procedures that may be varied see Watkins v Queensland Building and Construction Services [2013] QCAT 535; [2014] QCA 172; McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 42-43.

[15]Reasons for judgment 31 October 2018 page 14.

[16]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.

[17]Submissions of the Department filed 4 December 2018 paragraph 43.

[18]Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [4]-[5].

[19]Sali v SPC Limited (1993) 67 ALJR 841 at 843-844.

Close

Editorial Notes

  • Published Case Name:

    Jacqueline Gubier v Queensland Department of Housing and Public Works

  • Shortened Case Name:

    Gubier v Queensland Department of Housing and Public Works

  • MNC:

    [2019] QCATA 4

  • Court:

    QCATA

  • Judge(s):

    Member Dr J R Forbes

  • Date:

    14 Jan 2019

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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