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Sanderson v Department of Housing and Public Works[2021] QCATA 118

Sanderson v Department of Housing and Public Works[2021] QCATA 118

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Sanderson v Department of Housing and Public Works [2021] QCATA 118

PARTIES:

Steve sanderson

(applicant/appellant)

v

department of housing and public works

(respondent)

APPLICATION NO/S:

APL155-20

ORIGINATING

APPLICATION NO/S:

MCDT186/20 CABOOLTURE

MATTER TYPE:

Appeals

DELIVERED ON:

28 September 2021

HEARING DATE:

30 July 2021

HEARD AT:

Brisbane

DECISION OF:

Member Bertelsen

ORDERS:

Application for leave to appeal is refused.

CATCHWORDS:

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

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

Queensland Civil and Administrative 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 340

Pickering v McArthur [2005] QCA 294

Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39

Cavalliotis v Rizio & Anor [2013] QCATA 201

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

Cavalliotis v Rizio & Anor [2013] QCATA 201

APPEARANCES &

REPRESENTATION:

 

Applicant:

No appearance

Respondent:

Ms Anson, Housing Officer, Department of Housing and Public Works

REASONS FOR DECISION

  1. [1]
    Mr Steve Sanderson rented a house at Caboolture from the Department of Housing and Public Works (the Department) under a State Tenancy Agreement dated 17 February 2017.  The house was to be occupied by 4 persons it appears, Mr Sanderson and his 3 children.
  2. [2]
    On 9 March 2020 the Department issues Mr Sanderson with a Notice to Leave requiring vacate on 20 March 2020 on the grounds recited thus:

Unremedied breach in relation to using the premises for an illegal purpose as stated in your State Tenancy Agreement.  Notice to remedy breach issued on

Unremedied breach in relation to interfering with the reasonable peace, comfort or privacy of a neighbour as stated in your State Tenancy Agreement.  Notice to remedy breach issued on

  1. [3]
    Mr Sanderson did not vacate on 20 March 2020.  On 27 March 2020 the Department filed a termination application at Caboolture Magistrates Court citing failure to vacate in accord with the Notice to Leave – serious breach.
  2. [4]
    Breach details were articulated in an accompanying affidavit affirmed by a Department Senior Housing officer which stated relevantly that Mr Sanderson was the subject of current drug charges at the property including possession of dangerous drugs and possession of drug utensils.  These charges were confirmed in the Queensland Police Service statements dated 4 & 5 March 2020 attached to the termination application. 
  3. [5]
    Additionally, there were complaints from persons in the locality about condition of the premises, illegal behaviour and objectionable behaviour constituted by fighting, yelling, screaming emanating from the premises day and night. 
  4. [6]
    At hearing on 12 May 2020 the presiding Adjudicator made a termination Order for Mr Sanderson to vacate the property on 9 June 2020 failing which a warrant of possession would take effect on 10 June 2020 current for 14 days.
  5. [7]
    The Adjudicator in his reasons recorded 19 March 2021 recalled that Mr Sanderson participated by phone in the hearing at Caboolture on 12 May 2020.  He said Mr Sanderson denied receipt of the notice to leave and the termination application and notice of hearing as well as any documentation from the department in the 3 years prior.  The Adjudicator did not find Mr Sanderson credible, and formed the view that Mr Sanderson was not being truthful in regard to lack of contact with the Department.
  6. [8]
    He considered that particularly by reference to the Police statements there were numerous serious breaches and that the Department had acted appropriately rather than capriciously in seeking to terminate the tenancy. 
  7. [9]
    In his application for leave to appeal or appeal filed 11 June 2020 Mr Sanderson stated, “The Judge erred in his decision by not taking into consideration all facts and all facts of law.”  Mr Sanderson then sought a “stay of the decision on the grounds that the Department had acted maliciously and with contempt and fabricated evidence presented to the Judge”.
  8. [10]
    On 3 August 2020 the Appeal Tribunal determined that the stay application be dismissed for the reason the warrant of possession had been executed and that therefore such application was futile and lacking in substance.
  9. [11]
    On 16 October 2020 Mr Sanderson filed his submissions about errors of fact or law made by the Adjudicator .
  10. [12]
    Given this is an Appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1]
  11. [13]
    Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2]
  12. [14]
    There are essentially 4 appeal arguments raised by Mr Sanderson in his submissions.

First ground of appeal

  1. [15]
    Mr Sanderson says the Adjudicator did not take into consideration that on the notice to leave dated 9 March 2020 in section 4 there were no dates listed for when alleged notices to remedy breach were issued.
  2. [16]
    The transcript records[3] that the Adjudicator did not consider it necessary for a form 11 notice to remedy breach to precede the issue of the notice to leave.  The application was about illegal activity and interference with reasonable peace, comfort or privacy of a neighbour. 
  3. [17]
    The absence of a date of issue of a notice to remedy breach on the notice to leave could well be construed as its inapplicability to the grounds recited in the notice to leave.  Even if the notice to leave could be construed as defective the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) at section 349 provides that a notice to leave can be accepted as compliant even though containing a defect.  The alleged defect here does not serve to invalidate the notice to leave.  Regardless the notice to leave is on its face in the correct form. 
  4. [18]
    This appeal ground fails.

Second ground of appeal

  1. [19]
    Mr Sanderson says the Department claimed that he was given repeated warnings but that no copies of warnings were supplied to the Tribunal.  He said he was never issued any warnings. 
  2. [20]
    This appeal ground is misconceived.  Whether or not prior warnings were ever given or received does not go to the substance of the termination application but simply gives some context to the state of the relationship between the Department and Mr Sanderson.  The critical issue is the efficacy of the notice to leave.  The Departments correspondence of 9 March 2020 to Mr Sanderson refers not just to continuity of disruptive behaviour but specifically to illegal use of the premises the first and primary ground referred to in the notice to leave.  Assertions about lack of warnings have no bearing on the grounds for issuing the notice to leave. 
  3. [21]
    This appeal ground fails.

Third ground of appeal

  1. [22]
    Mr Sanderson says the Department claimed there were 3 previous investigations and that no copies of these investigations were supplied to the Tribunal.  Once again, this appeal ground is misconceived.  Whether or not there were prior investigations during the course of this tenancy does not go to the substance of the termination application but simply gives some context to the state of the relationship between the Department and Mr Sanderson.  Once again the critical issue is the efficacy of the notice to leave.  Prior investigations were not relied on to support the termination application.  Rather in so far as behavioural issues were concerned the Department received complaints it felt compelled to act on. 
  2. [23]
    Illegal activity was confirmed by the Queensland Police Service statements and records.  This appeal ground has no prospect of success and fails.

Fourth ground of appeal

  1. [24]
    Mr Sanderson said the director meaning presumably the Department’s Senior Housing Officer lied in his affidavit by stating there had been 4 complaints and 4 investigations where there were none.  The affidavit does refer to 4 complaints but not to 4 investigations.  Simply asserting that someone is lying is not evidence.  Regardless the allegation of lying being unsupported does not constitute an appeal ground. 
  2. [25]
    This appeal ground fails.
  3. [26]
    The appeal process is not an opportunity for a party to again present their case.[4] It is the means to correct an error by the Tribunal that decided the proceeding.[5] In making his decision, the learned Adjudicator was required to make orders that he considered fair and equitable to resolve the dispute.[6] ‘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’…[7]

  1. [27]
    A decision must not be so plainly arbitrary or capricious as to bear no reasonable relationship to the facts of the case.[8]  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[9] once the Department 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 him by the Legislature to terminate the tenancy.
  2. [28]
    The learned Adjudicator’s findings are supported by the evidence.
  3. [29]
    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 him. The learned Adjudicator’s findings were open on the evidence and it is not for the Appeal Tribunal to interfere with those findings.
  4. [30]
    There is no prospect of successful appeal on any of the 4 grounds of appeal discerned in Mr Sanderson’s affidavit material.
  5. [31]
    Leave to appeal is refused.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i) (QCAT Act).

[2]Pickering v McArthur [2005] QCA 294.

[3]Transcript, page 4, lines 31 to 33.

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

[5]Ibid.

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

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

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

[9]Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 340.

Close

Editorial Notes

  • Published Case Name:

    Sanderson v Department of Housing and Public Works

  • Shortened Case Name:

    Sanderson v Department of Housing and Public Works

  • MNC:

    [2021] QCATA 118

  • Court:

    QCATA

  • Judge(s):

    Member Bertelsen

  • Date:

    28 Sep 2021

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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