Predo v Richardson & Wrench[2021] QCATA 60

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   I dismissed an application for a stay order filed by Ms Predo, the applicant in this proceeding.  Ms Predo has requested reasons for my decision.  My reasons are as follows.

Background: the MCD proceedings

2. [2]
   On 16 February 2021, an Adjudicator decided a minor civil dispute (MCD), MCDT499/20 (Caboolture), brought by the lessor’s agent, Richardson & Wrench Caboolture (‘R&W’), by making orders requiring that $605 of bond monies held by the Residential Tenancies Authority (the RTA) be paid to the lessor’s agent, and the balance, if any, to the tenants, Ms Predo and Christopher Beijnon. The amount of $605 was for costs of bond cleaning ($440.00) and carpet cleaning ($165.00) respectively.^[1] 
3. [3]
   The hearing proceeded in the absence of the tenants after the Adjudicator had satisfied herself that it was appropriate to do so. The parties had been sent notices of hearing on 15 December 2020. The Notices warned the parties that, if a party did not attend the hearing, the Tribunal may proceed to hear and decide the matter in that party’s absence.
4. [4]
   The hearing and the learned Adjudicator’s reasons for decision were recorded.  The Adjudicator referred to submissions filed by Ms Predo and Mr Beijnon, among other things, as purporting to make a counter-claim.  The learned Adjudicator found that Ms Predo and Mr Beijnon had an obligation to leave the premises in the same condition they were in at the start of the tenancy, fair wear and tear excepted.  The learned Adjudicator found on the evidence that the bond clean and carpet cleaning were reasonably required to place the property in the condition it was in when Ms Predo and Mr Beijnon took possession under the rental agreement.  She rejected an argument made by Ms Predo and Mr Beijnon that R&W had not allowed them to choose their own cleaning services, on the basis that they had had ample opportunity to arrange their own cleaners prior to returning vacant possession but did not.

The appeal proceedings and the stay application

5. [5]
   Ms Predo filed an application for leave to appeal or appeal on the day of the MCD hearing.  The stated grounds of appeal are that unspecified health issues caused Ms Predo and Mr Beijnon to arrive at the Tribunal at the wrong time; and that R&W had provided ‘old’ information to the Tribunal.
6. [6]
   Ms Predo also filed an application to stay a decision, seeking an order to stay disbursement of the bond by the RTA.  The same explanation for non-appearance was provided as in the application for leave to appeal or appeal, and the following statement made: ‘My lodged information was ignored, why?’.
7. [7]
   Both parties were directed to file submissions in respect the application to stay a decision.  On 5 April 2021, Ms Predo sent an email to the registry attaching written submissions and various documents requesting that they be considered in support of her application for leave to appeal or appeal and application to stay a decision, on the basis the submissions were not considered by the Tribunal below (it appears these are the same submissions as filed in the Tribunal below and are the submissions referred to by the Adjudicator in discussing the counter-claim referred to by Ms Predo and Mr Beijnon).  Ms Predo’s email states:

The information should not have been ignored r&w have broken several laws while “making us homeless” with no police and no warrant served to us.

We were made homeless which is against the human rights laws by r&w.  And QCAT assisted.

I have proof of all the homes we applied for and we were rejected for every one.

8. [8]
   The lessor’s agent has not filed submissions. That said, it is not apparent from the file that Ms Predo has properly served them with the material in the appeal proceeding.  Despite this, upon considering the file and application to stay a decision, it was apparent to me that it must fail. As discussed, I determined the stay application by dismissing it.

Principles for granting a stay order

9. [9]
   Section 145(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) provides that starting an appeal does not affect the operation of the decision appealed. Section 145(2), however, provides that the tribunal may make an order staying the operation of the order pending the determination of the appeal. Further, section 58 provides for the making of interim orders, relevantly as follows:

58 Interim orders

1. (1)
   Before making a final decision in a proceeding, the tribunal may make an interim order it considers appropriate in the interests of justice, including, for example-

1. (a)
   to protect a party’s position for the duration of the proceeding; or

…

10. [10]
    The President of QCAT held in Hessey-Tenny v Jones,^[2] that in circumstances when leave to appeal is required, s 145(2) of the QCAT Act does not provide power to order a stay of the operation of the decision sought to be appealed. However, he held that s 58(1) is sufficient to confer jurisdiction on the tribunal to allow a stay of a primary order where leave to appeal has not yet been granted.
11. [11]
    He considered that if a stay order is made pending determination of an application for leave to appeal pursuant to s 58, exceptional circumstances must exist. Whether there are exceptional circumstances must be considered in addition to the conventional principles for the granting of a stay order.
12. [12]
    The conventional principles for considering whether to grant a stay order may be summarised as follows:

    1. (a)
       whether a reasonably arguable case on appeal has been demonstrated;
    2. (b)
       whether a refusal to grant a stay application would cause a material detriment to the applicant for the stay;
    3. (c)
       whether the balance of convenience favours the granting of a stay.^[3]
13. [13]
    Decisions of the Tribunal are not merely provisional: pending an appeal, a successful party is prima facie entitled to the fruits of the litigation.^[4] 

Should a stay order be made?

14. [14]
    The appeal process is for correcting error made by the Tribunal in making its decision. Ms Predo’s grounds of appeal do not appear to allege error by the Tribunal. Ms Predo’s re-filing of the tenants’ MCD submissions, in support of the proposed appeal and stay applications, do not in any event support the grounds of appeal as articulated.
15. [15]
    To the extent that the second ground, namely that ‘R&W deliberately gave old information’, may have been intended by Ms Predo to ground an allegation that the Tribunal made an unspecified error of fact, I observe that the Tribunal was entitled to make its decision based on the evidence before it.
16. [16]
    Further, in the stay application, Ms Predo alleges that her lodged information was ignored. It is not clear that this is intended to be relied upon as a ground of appeal. However, accepting that it may be intended to rely upon it (noting the email dated 5 April), as the earlier discussion demonstrates, this argument is not borne out by the Tribunal record. The Adjudicator had regard to the tenants’ submissions.
17. [17]
    Accordingly, I am not satisfied that Ms Predo has demonstrated a reasonably arguable case on the material before me.
18. [18]
    There is no allegation made of any material detriment (and nor is any identifiable) to Ms Predo in refusing the stay application. In the ordinary course, a successful litigant is entitled to have the benefit of the judgment in their favour. There is no argument advanced as to why the balance of convenience favours the granting of a stay order.
19. [19]
    As leave to appeal is required, exceptional circumstances must be established before a stay order will be made. There is nothing in the circumstances outlined or in the material provided by Ms Predo that demonstrates exceptional circumstances.
20. [20]
    The application for a stay order must fail. I make orders accordingly.