Williams v Deb Austin Property Management
[2023] QCATA 87
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- Williams v Deb Austin Property Management[2023] QCATA 87
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Williams v Deb Austin Property Management[2023] QCATA 87
Williams v Deb Austin Property Management[2023] QCATA 87
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Williams v Deb Austin Property Management [2023] QCATA 87 |
PARTIES: | david james williams (applicant/appellant) v deb austin property management (respondent) |
APPLICATION NO/S: | APL100-23 |
ORIGINATING APPLICATION NO/S: | T 3/23 Emerald |
MATTER TYPE: | Appeals |
DELIVERED ON: | 26 July 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: | Application for a stay filed 6 April 2023 dismissed. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – appeal – stay pending appeal – whether appellant adversely affected if decision implemented – stay refused Queensland Civil and Administrative Tribunal Act 2009 s 92, s 93, s 138, s 142, s 143A Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453 J C Scott Constructions Pty Ltd v Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd R 255 |
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
- [1]This is an application to stay a decision of the Tribunal pending the hearing and determination of an application for leave to appeal against that decision. On 13 March 2023 a Member,[1] sitting in Emerald, decided a dispute in relation to a rental bond, and a claim for compensation, brought by the respondent against the appellant.[2] The appellant did not appear at that hearing, the respondent did, and the Member gave the relief sought by the respondent, that the bond be paid to the respondent, and that the applicant pay a further amount of $2,145.54 to the respondent within four weeks.
- [2]On 6 April 2023 the appellant filed in the Tribunal an application for leave to appeal from the decision of the Member, on the ground that he had not received the notice of the hearing from the Tribunal, giving details of when the hearing was to be. He also disputed the respondent’s claims. On the same day he filed an application to stay the decision of the Tribunal. In that application, he added the information that he was away at the time of the hearing, due to work commitments and a specialist appointment for his daughter. It is the application for a stay which is now before me.
Background
- [3]The appellant was formerly a tenant of a residential property in Emerald managed by the respondent. According to the respondent, he moved into the property as its first tenant when it was new, the lease commencing on 16 April 2014. The last tenancy agreement was a fixed term agreement, from 17 June 2022 to 16 December 2022, signed electronically by the appellant on 18 June 2022. On 30 November 2022 the appellant gave to the respondent notice of intention to leave in Form 13, to vacate on 16 December 2022. It appears to be common ground that he did vacate that day.
- [4]The respondent’s material before the Tribunal showed that the appellant had arranged with commercial cleaners to do what was described as a “partial bond clean”, on the basis that he would do the rest himself. After he vacated, the respondent was dissatisfied with the state of the premises, and claimed to have spent a further $1,815 on cleaning the property inside and out, a further $330 on cleaning the carpets, $180 on a tick and flea treatment (the tenancy agreement provided for the appellant to have a dog), and $1,787.50 on repairs to the walls and ceiling, some of which seems to have involved repairing where paint had been knocked off corners in the plaster walls. As well, the tenancy agreement provided for the appellant to pay for water usage,[3] and the respondent claimed $113.04 for the period leading up to his vacating the premises.
- [5]The appellant was on 14 April 2023 directed by a senior member to file any further submissions in support of his application for a stay by 28 April 2023, but no further submissions have been received from him. An affidavit on behalf of the respondent was filed on 12 May 2023, which deals with the merits of their application, rather than specifically with the application to stay the decision.
Legislation
- [6]The Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”) requires leave to appeal to the Appeal Tribunal from the decision of the Tribunal in a minor civil dispute,[4] which the proceeding between the parties in the Tribunal was. In the case of an application for leave to appeal, there is power to stay the decision in the QCAT Act s 58.[5] The fundamental justification for staying judicial orders pending appeal is to ensure that the orders which ultimately might be made on the appeal are fully effective.[6] Another way of putting it is that a stay is necessary to preserve the subject matter of the litigation.[7] The usual factors taken into account are whether there is a good arguable case, whether the applicant would be materially disadvantaged without a stay, and whether the balance of convenience favours a stay.[8] The issue of a stay commonly arises in circumstances where there is good reason to believe that, unless the stay is granted, there is at least a substantial risk that the appeal will be rendered futile.
- [7]The QCAT Act s 93 permits the Tribunal hear and decide a matter in the absence of a party to the proceeding if the party has not attended the hearing and the Tribunal is satisfied that notice has been given under s 92, which provides for notice of the hearing to be given as stated in the rules. Rule 76(b) provides that notice of a hearing may be given by written notice under Part 5 of the rules, where Rule 39(1) provides that a document required to be given to someone can be given in various ways, including by sending it by post to the relevant address. That is defined in Rule 39(2), in the case of a person who does not have an address for service, as the address provided for in the service practice direction. This includes the last known residential address.[9]
- [8]According to the copy of the Notice of hearing on the file, that notice was posted to the appellant at a particular address in Emerald on 15 February 2022. That was the address stated as the appellant’s current address in the respondent’s application to the Tribunal filed on 13 February 2022, and it is also the address stated as the appellant’s postal address in the application for leave to appeal, and the application to stay the decision, filed on 6 April 2023. On the face of it therefore the notice of hearing was properly given for the purposes of s 92, and the Member was entitled to hear and decide the matter in the absence of the appellant.
- [9]Section 93 does not provide any mechanism for reopening a matter heard and decided under it. Division 7 of Chapter 2 provides for reopening a proceeding after a decision, in circumstances where a reopening ground specified in the QCAT Act exists. The term “reopening ground” is defined in Schedule 3 to the QCAT Act, as including that “the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing.” It is difficult to assess the reasonableness of the appellant’s excuse, in view of the paucity of information from him, but there may well be a “reopening ground” in this case.
- [10]There is a complication, in that s 138(5) prevents an application to reopen if an application for leave to appeal has been filed, even after it has been decided, but s 143A permits the appeal tribunal to refer the matter back to the Tribunal to decide whether the proceeding should be reopened, and if that is done, the appellant is taken not to have applied for leave to appeal, and the matter can proceed as a reopening application. The advantage of that is that, as the matter stands, it is necessary for the appellant to point to some error on the part of the Member in dealing with the matter as a hearing which the appellant did not attend, which may be difficult.
Consideration
- [11]The present significance of all this is that one of the matters for consideration, on the hearing of an application to stay a decision, is the prospects of the appellant on the hearing of the application for leave to appeal, so far as they can be assessed at present. On the face of it the appellant has little prospect of showing any error on the part of the Member in dealing with the matter in the absence of the appellant, but the appellant has I consider a reasonably good prospect of obtaining a referral under s 143A, which could well enable him to obtain a hearing of the dispute on the merits.
- [12]Turning to the other considerations relevant to the grant of a stay, one situation where a stay may be granted is where there is a judgment for payment of money to someone who may well be unable to repay it if the judgment is set aside.[10] The important part of this is the existence of a real risk of an inability to repay, something to be shown by the appellant. If payment is to be made to a person who may well spend a significant part of the money before any appeal is decided, that can be relevant.
- [13]In the present case the decision related to the distribution of the bond held by the Residential Tenancy Authority, and a payment from the appellant to the respondent. The respondent was the managing agent of the rental property formerly occupied by the appellant, and brought the proceeding in the Tribunal pursuant to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 206(3). Accordingly the respondent stands in the lessor’s place for the proceeding, and for practical purposes it is as if the decision was one in favour of the lessor, that is, the owner of the premises.
- [14]All that is known about the lessor is that he owns the premises which were the subject of the tenancy which gave rise to this dispute, a factor which suggests that, if he is ordered to repay money, he is likely to be able to do so. There is certainly no evidence to the contrary. The mere fact that the appellant wishes to challenge the decision under appeal, and may prefer the money to remain in the hands of the Residential Tenancy Authority, or his own hands, is not a justification for ordering a stay. I expect that in any case the Residential Tenancy Authority has already paid the bond to the respondent.
- [15]It has therefore not been shown that the appellant will be materially disadvantaged in the absence of a stay. The Appeal Tribunal has power to order that the respondent pay to the appellant any amount which, in the light of the decision on the appeal, the respondent has been overpaid, and if the matter is referred to the Tribunal, there would be the same power if the hearing were reopened and the outcome proved to be different. There is no particular reason to expect that such an order would not be complied with. As well, the decision at first instance is not to be treated as merely provisional pending any appeal, and prima facie effect should be given to it.[11] In these circumstances, the appellant has not shown he would be materially disadvantaged without a stay, and the balance of convenience does not favour a stay.
- [16]The appellant has not shown that circumstances exist which make it appropriate to stay the decision of the magistrate pending the decision on his application for leave to appeal and any appeal. The application for a stay filed 6 April 2023 is dismissed.
Footnotes
[1] A Magistrate Sitting as a Member under the QCAT Act s 171(2).
[2] I shall refer to Mr Williams as the appellant, and Deb Austin Property Management as the respondent.
[3] Special condition 1.
[4] The QCAT Act s 142(3)(a)(i).
[5] Hessey-Tenny v Jones [2018] QCATA 131; Kerr v Ray White Gladstone Residential [2023] QCA 106 at [23].
[6] Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 at [12], per Keane JA.
[7] Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681.
[8] Bowie v Gela [2022] QCATA 112 at 9, citing Day v Humphrey [2017] QCA 104 at [6].
[9] Practice Direction 8 of 2009, as updated 20 November 2013, paragraph 13(a).
[10] J C Scott Constructions Pty Ltd v Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd R 255 at 259.
[11] Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453 at [12].