Lindon v Ray White Mermaid Waters
[2022] QCATA 163
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- Unreported Judgment
- Lindon v Ray White Mermaid Waters[2022] QCATA 163
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Lindon v Ray White Mermaid Waters[2022] QCATA 163
Lindon v Ray White Mermaid Waters[2022] QCATA 163
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION | Lindon v Ray White Mermaid Waters [2022] QCATA 163 |
PARTIES: | mack lindon (applicant) v ray white mermaid waters (respondent) |
APPLICATION NO: | APL290-21 |
ORIGINATING APPLICATION NO/S: | MCDT1164/21 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 2 November 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Dr J R Forbes |
ORDERS: | The application for leave to appeal is dismissed. |
CATCHWORDS: | APPEAL – APPLICATION FOR LEAVE TO APPEAL – RESIDENTIAL TENANCY DISPUTE – termination of lease – where termination is for failure to leave upon expiry of lease – where tenant seeks order for renewal of lease – where absence of jurisdiction to make such order – whether appeal barred by QCAT Act s 139 – where s 139 distinguished – where no error demonstrated in process terminating lease – where application for leave to appeal dismissed COVID-19 Emergency Response Act 2020 (Qld) Queensland Civil and Administrative Tribunal Act 2009 Qld) s 32, s 138, s 139 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 293 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Balemi v Ingles [2020] QCATA 58 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135 Lemongrove Services Pty Ltd trading as Reimer Winter Williamson Lawyers and Anor v Rilroll Pty Ltd and Ors [2019] NSWCA 174 Nurzenski v B P Builders NQ Pty Ltd [2017] QCAT 67 Orr v Holmes (1948) 76 CLR 632 Robinson v Corr [2011] QCATA 302 Total Driver Pty Ltd & Anor v Hedley [2020] QCATA 81 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
Introduction
- [1]
Case history
- [2]The history of these proceedings is tortuous: Commenced in August 2021, listed for trial in September following, they were then struck out when the parties failed to appear on 9 September 2021.
- [3]Upon proof that the initial application was not duly served the case was reopened two weeks later and an urgent hearing was ordered. That took place on 5 October 2021, when Lindon was ordered to vacate the subject premises by 19 October 2021. It appears that he left the premises on or about 2 November 2021.[3]
- [4]On 18 October Lindon filed an application for a stay of that order, which the tribunal refused on October 19 2021.
- [5]On 21 October 2021 Lindon’s request for another reopening was dismissed.
The present application
- [6]Undaunted, Lindon lodged the present application for leave to appeal on 27 October 2021. These are the proposed grounds of appeal:
I believe the tenancy was unfairly ended as the court matter of a temporary DVO[4] is pending, placing me in vulnerability. I have quarantined x 2 times [and have had] 9 x Covid tests. I have rent put aside to contract another lease and look after the property as if it was my own.
- [7]The application proceeds to ask for the following orders:
Appeal stay to revoke `warrant of possession’;
Order the Real Estate [sic] to offer another tenancy lease of 6 months/12 months;
Revoke `notice to leave’;
Allow me to write/contact the landlord outlining personal circumstances.
Is the appeal barred?
- [8]A threshold question is presented by section 139 of the QCAT Act[5], and in particular by subsection (5) thereof:
The tribunal’s decision on the application is final and can not be challenged, appealed against, reviewed, set aside, or called in question in another way, under the Judicial Review Act 1991 or otherwise.
- [9]
- [10]But it is suggested[8] that the section 139(5) ban is confined to reopening applications, namely applications specifically based on a ‘reopening ground’.[9] In Schedule 3 to the QCAT Act the expression ‘reopening ground’ means that (a) the party did not appear at the hearing … and had a reasonable excuse for his or her non-attendance or (b) the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen that was not available when the trial and substantive decision occurred.[10]
- [11]The apparent implication is that an appeal based upon a ground other than excusable non-attendance at the hearing, or fresh evidence, is not affected by section 139(5). If this be correct, Lindon’s proposed grounds of appeal, such as they are, remain open for consideration on the merits.
Merits of appeal
- [12]It appears that this view commended itself to the Senior Member when she directed that:
The application for leave to appeal or appeal will be treated as seeking to appeal decision date 5 October 2021.[11]
- [13]The decision dated 5 October 2021, insofar as it has not been overtaken by the passage of time,[12] reads:
The residential agreement between the parties [is] terminated as from midnight on 19 October 2021 on the grounds of failure to leave.
- [14]Pursuant to the direction given on 21 December 2021 I shall proceed to consider Lindon’s proposed grounds of appeal on the merits. If that involves a misapprehension of section 139(5), then cadit quaestio – this application terminates forthwith.
- [15]In a statement dated 6 January 2022 Lindon makes a passing reference to the emergency Covid legislation[13] but only in relation to a request for inspection made while the lease was still current. There was no mention of that legislation at the trial, and no issue relating to it appears in the application for leave.
- [16]No arguable ground of appeal arises from the applicant’s feeling that the respondent’s refusal to renew the lease is ‘unfair’. In its own terms the lease came to an end, although Lindon overstayed. It appears to be common ground that he was generally a good tenant, but that fact, and his ad misericordiam appeal regarding time in quarantine, and collateral DVO proceedings, provide no defence to eviction proceedings in the circumstances. Sympathy for Lindon’s position does not place a legal duty upon the lessors to grant him a new lease that they are not prepared to sign. It is not nearly enough for an applicant to express disappointment, or to cherish a subjective feeling that justice has not been done.[14] It is not appellable error to prefer one witness’s evidence to another’s, or to give a party’s submissions less weight than he or she thinks they deserve.
- [17]An analogous situation is where a would-be purchaser wishes to buy goods from a person who does not want to sell them, and who has not even offered them for sale. No matter how intense the would-be buyer’s subjective sense of unfairness may be, neither he nor a tribunal could enforce a sale.
- [18]An application for leave is not an opportunity for a retrial de novo or to argue that the appeal tribunal, if were the trial judge, may have viewed the case differently.[15] Indeed, Lindon does not seriously suggest that his lease and consequent right to remain have not ended. He simply asserts that he should have another lease. No order to that effect may be made.
- [19]As to Lindon’s fourth ground of appeal, there is no necessity to seek an order enabling him to write to the landlord `outlining personal circumstances.’ That is for him to decide.
Resolution
- [20]No reasonably arguable ground of appeal has been demonstrated. Accordingly For the reasons given the application for leave to appeal must be dismissed.
ORDER
The application for leave to appeal is dismissed.
Footnotes
[1] Ray White Mermaid Waters (‘White’), the respondent to the application for leave. White’s locus standi flows from the standard Clause 43 of the Residential Tenancy form 18a.
[2] Section 293.
[3] Email Ray White to QCAT 28 November 2021.
[4] An application for an order under the Domestic Violence and Family Protection Act 2021 (Qld).
[5] ‘Deciding whether to reopen’.
[6] [2017] QCAT 67.
[7] [2020] QCATA 81.
[8]Balemi v Ingles [2020] QCATA 58 at [26].
[9] QCAT Act s 138(1).
[10] The second part of the definition follows the common law: see e.g. Orr v Holmes (1948) 76 CLR 632 at 640-641; Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135.
[11] Appeal Tribunal Directions 21 December 2021, Direction 1.
[12] Lindon vacated the premises in November 2021.
[13]COVID-19 Emergency Response Act 2020 (Qld).
[14]Robinson v Corr [2011] QCATA 302 at [7].
[15]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; Fox v Percy (2003) 214 CLR 118 at 125-126; Lemongrove Services Pty Ltd trading as Reimer Winter Williamson Lawyers and Anor v Rilroll Pty Ltd and Ors [2019] NSWCA 174 at [173].