Blunsdon v Govesis[2021] QCATA 91

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 9 March 2021 the second respondent to the application for leave to appeal commenced minor civil dispute – tenancy proceedings in the Tribunal at Brisbane seeking an order terminating the tenancy of the applicants to the application for leave to appeal (‘the applicants’) of a property owned by both respondents to the application for leave to appeal (‘the respondents’) south of Brisbane.
2. [2]
   The application for termination was based on failure to pay rent. Exhibited to the minor civil dispute application was a Notice to Leave Form 12 given on behalf of the respondents to the applicants.
3. [3]
   The termination application came on for hearing before an Adjudicator on 7 April 2021. Because of Covid, all parties appeared by telephone. Mr Blunsdon represented the tenants. A solicitor, Mr Tan, and Mr Tony Govesis represented the lessors.
4. [4]
   The parties agreed to terminate the tenancy as from 30 June 2021. A consent order to that effect was made by the Tribunal and a warrant of possession issued effective as and from 1 July 2021, which latter step was a requirement of the legislation.
5. [5]
   On 4 May 2021 the applicants filed an application for reopening and an application to stay the decision made 7 April 2021 and an application for an interim order to similar effect.
6. [6]
   The application for an interim order was dismissed on 13 May 2021 and the parties directed to file further submissions in respect of the reopening application.
7. [7]
   The reopening application was listed for hearing on 21 June 2021. Leave was granted for both parties to be legally represented. The Adjudicator hearing that application determined that it would be more effectively and conveniently dealt with as an appeal and directed that the application to reopen filed on 4 May 2021 be accepted as an application for leave to appeal and appeal.
8. [8]
   The Appeal Tribunal made an interim order suspending the operation of the termination order and warrant issued on 7 April 2021 pending determination of an interlocutory order to same effect through to determination of the application for leave to appeal.

Requirements for a stay application

9. [9]
   Fraser JA restated the requirements for a stay application in Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors [2019] QCA 276:

The applicant for a stay is usually required to demonstrate a good arguable case on appeal, that the applicant will be disadvantaged if a stay is not ordered, and that any competing disadvantage to the respondent, should the stay be granted, does not outweigh the disadvantage suffered by the applicant if the stay is not granted: Asia Pacific International Pty Ltd v Peel Valley Mushrooms Ltd [1998] QCA 414; [1999] 2 Qd R 458; Elphick and MMI General Insurance Ltd & Anor [2002] QCA 347; Raschilla & Anor v Westpac Banking Corporation [2010] QCA 255.

Good arguable case

10. [10]
    The applicants say the termination application was originally listed for an in person attendance by the parties. Because of a Covid lockdown that was changed to a telephone hearing. They say they were only advised of the change on 1 April 2021 and because of that they suffered disadvantage. They were not able to hand up supporting evidence at the hearing.
11. [11]
    Despite making a number of written submissions since the hearing on 7 April 2021, and the appearance by a legal representative at the hearing on 21 June 2021, no “supporting evidence” has been tendered.
12. [12]
    In a statement from Mr Blunsdon filed 31 May 2021 in support of the reopening application he refers to a document described as a “lease to purchase” entered into between the parties. There has been no copy provided. It is unclear what the purpose or intent of the document was.
13. [13]
    He refers to threats made against him by one of the respondents and that the respondents are not interested in a “settlement” of the property but that they want to terminate the “original agreement” without consideration given to the repairs the applicants have effected to the property and the fact that the applicants have agisted two of the respondents’ horses for almost three years.
14. [14]
    The statements made are vague and broad brush and fail to address clearly relevant issues such as whether they have failed to pay agreed rent under a residential tenancy agreement and whether they consented to the termination order at the hearing on 7 April 2021.
15. [15]
    For their part the respondents say in an affidavit filed prior to the original termination hearing that there was an arrangement between the parties whereby the applicants agreed to buy the subject property but that did not proceed to settlement. The applicants entered into a residential tenancy agreement and it was a special term of that agreement that the applicants would pay the entire rental due in full “on settlement”.
16. [16]
    A copy of a residential tenancy agreement is exhibited to the affidavit. The start date was 2 July 2018 and end date 31 December 2018. The name of the lessor is the name of the real estate agent^[1] and the applicants are listed as the tenants. The rent is stated to be $3,000 per week with the date of payment noted rather meaninglessly as “Rent must be paid on the Funds Received day of each TBA”.
17. [17]
    There are certain special conditions added to the contract:

1. Tenants agree to enter into a lease/purchase agreement. The entire lease amount of $78,000 will be paid directly to the managing agent on settlement or paid fortnightly with arrears paid in full commencing 01/10/2018.
2. Tenants will regularly keep the entire facilities grass, garden beds and plants in a regular tidy & healthy state.

 …

6. If the tenants need to vacate, the tenants must have both residences professionally cleaned with proof of receipt including and paying particular attention to all blinds, shower areas and kitchen oven.
7. If the tenants need to vacate, the tenants must complete the garden maintenance and return the “around the grounds” in a neat and tidy manner plus all outgoings (electricity, phone & internet) to be paid in full.

18. [18]
    Attached to the affidavit is a spreadsheet claimed to show rent paid by the applicants and rent outstanding. The ledger concerned commences on 2 July 2018 and ends 23 February 2020. The document suggests that as at 23 February 2020 arrears of rent totalled in excess of $200,000.
19. [19]
    The applicants say there was no jurisdiction in the Tribunal to make the consent order because no Form 11 Notice to Remedy Breach had been served on the applicants prior to the Form 12 Notice to Leave. That was a procedural requirement and necessary to the success of the application for termination. There is no power to waive service of a Notice to Remedy Breach. In its absence the termination order and warrant of possession should not have been issued and should be set aside.
20. [20]
    The difficulty for the applicants in this matter is that they agreed at the hearing of 7 April 2021 to the termination.
21. [21]
    The applicants do not address that circumstance which is very relevant and pressing in the matter.
22. [22]
    In Hajjar v 104 880 088 Group Holdings Pty Ltd [2019] NSWCA 298 a party consented to orders and then subsequently appealed against them. The NSW Court of Appeal addressed the issue of an applicant who fails to explain his consent given to orders made below as follows:

For the following reasons, Mr Elias Hajjar’s Summary of Argument did not identify any arguable basis for the challenge he now apparently makes to Lindsay J’s consent orders. First, he has not identified any basis upon which he would not be bound by the consent which he gave, which is clearly reflected in the transcript of the hearing. A person challenging consent orders of this character needs to show grounds for setting them aside analogous to those required to vitiate an ordinary contract (Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27 at 243-4).^[2]

23. [23]
    In Harvey v Phillips (1956) 95 CLR 235 referred to in Hajjar the High Court had said:

The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like.^[3]

24. [24]
    Section 277 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) provides that a residential tenancy agreement ends only in a way mentioned in the section. One such is by written agreement of the lessor and tenant.^[4] Another is if a tribunal makes an order terminating the agreement.^[5]
25. [25]
    The respondents did not serve a notice to remedy breach for failure to pay rent prior to issuing the notice to leave. They should have done that. Why that was not done is also unexplained. Perhaps it was ignorance of the required process.
26. [26]
    The principal contention of the applicants however is the claimed lack of  jurisdictional power of the Tribunal to make the consent order. It is clear that an order made outside jurisdiction is ultra vires.
27. [27]
    What is unclear is whether the consent order was such however. The outcome was the  perfected order of the tribunal. It was in writing and it might reasonably be argued that it evidenced the agreement struck between the parties on the day. There seems to be no issue taken by the applicants that agreement between the parties was struck on the day. They agreed to terminate the tenancy as from 7 April 2021. That was a compromise of the dispute between them.
28. [28]
    Strangely enough, there was no agreement about payment  of arrears of rent. Perhaps that was the consideration for the agreement. What the applicants achieved at minimum was an additional two months’ further accommodation before having to vacate.
29. [29]
    What s 277(2) makes necessary is written agreement between the parties. There is no additional requirement that such written agreement be signed by either of them or any.
30. [30]
    Broken down to component parts, s 277(2) requires agreement – there was that here.
31. [31]
    The agreement must be written. Written is the past particle of write. In the Macquarie Dictionary Online the verb ‘write’ is defined as seems apposite:

1. to trace or form (characters, letters, words, etc.) on the surface of some material, as with a pen, pencil, or other instrument or means; inscribe.
2. to express or communicate in writing; give a written account of.

 …

14. to express ideas in writing.

32. [32]
    It seems to me well arguable that the consent order satisfies the requirements of s 277(2). I am not required to determine the matter in this interlocutory application however.
33. [33]
    On balance I conclude the applicants have an argument that might be raised on appeal, but that argument has limited prospects of success.

Advantage/Disadvantage

34. [34]
    The applicants do not say what the property concerned is used for, save there is mention of horses and agistment and conducting a program called “The Spirit of the Horse Program”.
35. [35]
    If there are acres of land involved in the premises claimed let, query what part of the property is subject to any residential tenancy agreement - house and curtilage, “houses”^[6] and curtilage, all?
36. [36]
    The only calculation of outstanding rent is the respondents’ ledger updated to February 2020, which suggests the applicants then owed more than $200,000 in rent.
37. [37]
    If rent has not been paid since then, the amount of unpaid rent may exceed $400,000, but the respondents give no particulars about current arrears.
38. [38]
    The matter is remarkable for lack of obviously relevant information and material from both parties.
39. [39]
    According to the applicants, there was no communication between them and the respondents from early 2020 until receipt of the Form 12 Notice to Leave. Whilst the respondents refer to the Covid crisis intervening, there is no evidence of any communication with the applicants about that or the failed potential purchase agreement. The respondents say they required the applicants to continue meeting their rental payments throughout the period of the tenancy,^[7] but offer no evidence in support of that claim.
40. [40]
    There was no current ledger submitted to the Tribunal in support of the application for termination; there was no Form 11 Notice to Remedy Breach issued precisely identifying the arrears claimed due prior to issue of the Form 12 Notice to Leave.
41. [41]
    All in all the respondents appear to have been remarkably dilatory in pursuing their own best interests as lessors.
42. [42]
    What is also relevant is that there is nothing preventing the respondents from immediately serving either a Form 11 Notice to Remedy Breach requiring payment of rent claimed due to date, and if necessary following that up with a Form 12 Notice to Leave. If the applicants fail to vacate another application could be brought in the Tribunal seeking termination afresh, independent of the present appeal proceedings.
43. [43]
    Alternatively, given the tenancy is clearly now periodic, a new Form 12 giving two months’ notice without grounds seems a readily available avenue for the respondents to pursue.
44. [44]
    Whilst in my opinion the applicants’ prospects of success of the appeal are limited, there is nothing to suggest any urgency about the respondents’ need for recovery of possession of the property. The limited information provided me in this interlocutory application by both sides paints no more than the vaguest of outlines of relevant facts upon which to draw conclusions.
45. [45]
    Having said that, it seems clear that a failure to stay the termination order and warrant will render nugatory any success the applicants might achieve in the appeal.
46. [46]
    In the circumstances, which includes the availability of a fresh application for termination to the respondents, the disadvantage to the applicants in refusing a stay seems to me to outweigh the advantage to the respondents in its refusal. The decision below and the warrant should be stayed pending the determination of the appeal.