Du v INA Operations Pty Ltd[2024] QCATA 33

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is this application about?

1. [1]
   Xi Du (‘Du’) seeks leave to appeal a decision made by the Tribunal below on 18 January 2024 to end their tenancy of site T09 at the Brisbane North Rental Village, operated by INA Operations Pty Ltd (‘INA’)^[1] (the ‘termination decision’).
2. [2]
   Pending an outcome in that application, Du sought to stay the eviction by an application that I refused on 1 February 2024 for the reasons that follow.

Factual background

3. [3]
   By an application in a minor civil dispute – residential tenancies dispute filed on 20 November 2023 INA applied to the Tribunal:

   1. to terminate Du’s tenancy on the grounds of failure to leave under section 293 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’); and
   2. for a warrant of possession under section 350(1) of the RTRAA.

4. [4]
   Du says that the Tribunal below made the termination decision contrary to the evidence before it, having made a finding that rent had not been paid after 21 November 2023, in circumstances where Du says they had made three payments after that date.

5. [5]
   Du says there has been a mistake of fact about rent paid/unpaid relying on an inaccurate tenancy ledger tendered by INA and says in fact there was a rent credit for the whole of the period of the notice to remedy breach and the notice to leave.
6. [6]
   Du says the Tribunal below made an error of law in considering any arrears outside of the notice period.

Stays and applications for leave to appeal under the QCAT Act

7. [7]
   Under s 145(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) the Appeal Tribunal may make an order staying the operation of a decision of the Tribunal below until the appeal is finally decided. However, there is no appeal until and unless leave to appeal has been granted where required.
8. [8]
   Section 58(1) of the QCAT Act permits the Appeal Tribunal to make any interim order it considers appropriate in the interests of justice, including, for example:

   1. to protect a party’s position for the duration of the proceeding; or
   2. to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction for the proceeding.
9. [9]
   A “proceeding” is defined in Schedule 3 of the QCAT Act to generally mean “a proceeding before the tribunal, including an appeal before the appeal tribunal and a proceeding relating to an application for leave to appeal to the appeal tribunal”.
10. [10]
    Therefore, an application to stay a decision that falls outside the ambit of s 145 may be considered under s 58 to allow a stay of a primary order in circumstances where leave to appeal has not yet been granted.^[2]
11. [11]
    To succeed on a conventional application for a stay, the party applying for the stay must satisfy the Appeal Tribunal that there is a good reason for the stay, including:^[3]

    1. that the applicant has a good arguable case on appeal;
    2. that the applicant will be disadvantaged if a stay is not ordered; and
    3. that 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.

A good arguable case on appeal

12. [12]
    Du needs leave to appeal. In State of Queensland v Bell [2016] QCATA 176 the Appeal Tribunal observed at [9] that:

The leave limitation on the right of appeal acts as a filter against unwarranted reconsideration of procedural issues and costs orders in tribunal proceedings.^[4] It is one of the mechanisms used to distinguish between those cases that justify the dedication of finite appeal tribunal resources, and those which do not.

13. [13]
    McMurdo JA said in Simonova v Department of Housing and Public Works^[5] that “the circumstances must be exceptional before an order in the nature of a stay will be granted, pending an application for leave to appeal”.
14. [14]
    Justice Daubney, President observed in Berry v Treasure & Anor:^[6]

There is no automatic right of appeal against minor civil dispute decisions. I respectfully adopt and endorse the following observations by the former President, Justice Alan Wilson, in Durrand v Karaolis:^[7]

The Queensland Parliament has made it clear, in the QCAT Act, that so far as possible minor civil disputes of this kind are to be resolved by a simple procedure which is speedy, inexpensive and final. That conclusion is reinforced by the fact that before a party can appeal a decision in this jurisdiction it must obtain leave from the Appeal Tribunal … In other words, there is not an automatic right to appeal these decisions; rather, an applicant must first establish that it has a right to a grant of leave.

15. [15]
    In determining whether to grant leave, the Appeal Tribunal must be satisfied that, relevantly:

    1. there is a reasonably arguable case of error in the primary decision;^[8]
    2. there is a reasonable prospect that they will obtain substantive relief;^[9] and
    3. leave is needed to correct a substantial injustice caused by the error;^[10] or
    4. there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.^[11]

The circumstances of the termination

16. [16]
    There were no obvious defects in the termination process adopted by INA:

    1. The application for termination filed on 21 December 2023 was grounded upon a failure to leave following the giving of a Form 12 Notice to Leave (Form 12).^[12]  
    2. The Form 12 was given on 29 November 2023 for the failure of Du to remedy a breach of the tenancy agreement under section 326 of the RTRAA. 
    3. The preceding notice to remedy breach (Form 11) was issued on 21 November 2023 under sections 325 and 328(2) of the RTRAA, and was to be remedied by 27 November 2023, five days being the minimum notice period for a long tenancy (moveable dwelling). The Form 11 stated that rent was in arrears in the sum of $1,778.00.
    4. The handover date in the Form 12 was 6 December 2023.
    5. Accordingly, the Form 12 having been given on 29 November 2023, met the minimum required two-day notice period.^[13]  
    6. Section 293 of the RTRAA requires that an application for termination based on a failure to leave must be brought no more than fourteen days after the handover date.  The application was brought within fourteen days.
17. [17]
    The learned Adjudicator resolved the dispute in INA’s favour, accepting the following evidence tendered:

    1. Tribunal decision made 21 November 2023 that the arrangement between the parties for T09 is a residential tenancy agreement to which the RTRAA applies, being a periodic agreement for rent to be paid at $254.00 per week.
    2. Invoice #55291 for rent from 24 November 2023 to 8 December 2023 for $508.00, receipted as fully paid, sent 21 November 2023.
    3. Invoice #55260 for rent from 15 September 2023 to 24 November 2023 for $2,540.00, sent 21 November 2023.
    4. Email from Du dated 21 November 2023 stating that they will make prompt payment of Invoice #55260 as soon as QCAT confirms when their tenancy of T09 started, and when credit is given for payments made on 25 October 2023, 20 October 2023 and 20 October 2023 (3 x $254.00).
    5. Email from Du dated 22 November 2023 confirming payment of $508.00 for Invoice #55291.
    6. Overdue Invoice #55260 issued 21 November 2023 for rent from 15 September 2023 to 24 November 2023 for $2,540.00, less payments of $762.00, leaving a balance owing of $1,778.00.
    7. Form 11 Notice to Remedy Breach issued 21 November 2023, to be remedied by 27 November 2023 requiring rent to be paid in the sum of $1,778.00. The breach was described as unpaid rent up to 24 November 2023.
    8. Client Account Statement dated 11 December 2023 indicating rent was then in arrears of $2,540.00 as Du had not made any additional payments after the $508.00 on 24 November 2023.
    9. Statement of Arrears dated 18 December 2023 noting a payment of $254.00 on 12 December 2023.

Alleged error in the decision

18. [18]
    Du relies upon certain payments having been made to establish that they were not in breach at the relevant times:

    1. The payment (by transfer of credit from another site) of $508.00 on 21 November 2023 “for the whole of the period of both the Notice to Remedy Breach and the Notice to Leave, there should have been no arrears”.
    2. “Payments in November and December as well as 2 after 25 October 2023” referred to in the application for leave to appeal but not particularised.
19. [19]
    In the application for leave to appeal Du seeks leave to rely on ‘transaction details’ statements evidencing payments of:

    1. $254.00 on 25 October 2023
    2. $330.96 on 27 October 2023
    3. $508.00 on 30 October 2023
    4. $254.00 on 8 December 2023
    5. $254.00 on 18 December 2023
    6. $254.00 on 18 January 2024.
20. [20]
    Du does not have leave to file this new evidence (at this stage). Nonetheless it does not establish Du’s case because:

    1. To remedy the Form 11, Du had to pay $1,778.00 by 27 November 2023.
    2. The $1,778.00 figure demanded in the Form 11 had already allowed a credit for payments by Du made in October 2023.  
    3. Du did not pay $1,778.00 by 27 November 2023.
    4. Du made weekly payments of rent after 27 November 2023, but this did not pay down the existing arrears.
21. [21]
    Section 337 of the RTRAA permits (but does not oblige) the Tribunal to order termination of a residential tenancy agreement if satisfied:

    1. the applicant has established the ground of the application; and
    2. that the tenant committed the breach of the agreement stated in the notice to remedy breach about which the notice to leave was given; and
    3. the breach justifies terminating the agreement.
22. [22]
    On the evidence before the Tribunal, and before the Appeal Tribunal, the application was grounded on an unremedied breach of the obligation to pay rent, a notice to leave that followed, a failure by the tenant to leave and an application for termination filed within time.
23. [23]
    The decision whether to terminate, and the period to allow before terminating is, therefore, an exercise of discretion.
24. [24]
    In exercising the discretion to decide whether the breach justifies terminating the agreement, the tribunal may, among other things, have regard to:

    1. the seriousness of the breach; and
    2. any steps taken by the tenant to remedy the breach; and
    3. whether the breach was recurrent and, if it was recurrent, the frequency of the recurrences; and
    4. the detriment caused, or likely to be caused, to the lessor by the breach; and
    5. whether the lessor has acted reasonably about the breach; and
    6. any other issues it considers appropriate.
25. [25]
    The difficulty for Du being that there is a strong presumption in favour of a decision involving discretionary judgment. It is not enough that the Appeal Tribunal might have decided differently, rather, an applicant must show that in terms of House v R^[14] that the discretion exercised by the decision maker has miscarried by acting on a wrong principle or giving weight to extraneous or irrelevant matters or failing to give weight or sufficient weight to relevant considerations or making a mistake as to the facts. The result must be so unreasonable or plainly unjust that the Appeal Tribunal may infer that there has been a failure to properly exercise the discretion.
26. [26]
    Du alleges that the discretion was not exercised properly because^[15] the learned Adjudicator said that Du had not paid any rent after 25 October 2023, when, by the time of the hearing on 18 January 2024 Du had in fact made three payments of $254.00.
27. [27]
    Du also says that they made three payments on or after 24 November 2023, but this is not true: the emails exchanged by the parties clearly establish that the payments applied to Invoices #55291 and #55260 were balance transfers from funds held to the account of the previous site occupied and/or paid to an incorrect account by Du. They were paid on or before 21 November 2023 and applied to Du’s T09 account to reduce the arrears owing to $1,778.00, even though ledger entries for those credits appear on later dates in the Client Account Statement.
28. [28]
    Du had an obligation to pay rent weekly: there were seven weeks between the due date to remedy the Form 11 and the hearing and only three weekly payments were made in that time. Therefore, at the time of the hearing, Du had not remedied the arrears set out in the Form 11, and had fallen further behind.  Even if they had made three payments rather than no payments, as Du says the learned Adjudicator found, this error was not fatal to Du’s case having regard to the section 337 factors:

    1. Du remained in breach at the time of the hearing.
    2. The breach was serious as the arrears were significant and well exceeded the bond held of $508.00 for the tenancy.
    3. The detriment to the lessor was obvious in that it was not receiving income from occupation of the site and, again, the bond was not sufficient to cover the loss. 
    4. The breach was recurrent.
    5. Du had not taken any steps to remedy the breach – they had paid three of seven required ongoing weekly payments but no payments to reduce the arrears.
    6. The lessor had acted reasonably in checking records and transferring credits and reissuing invoices when Du used incorrect payment references.
29. [29]
    This is no reasonably arguable case of error, in my view and, if I am wrong about that, and an error has been made in terms of the reference to “no rent paid after 25 October 2023”, I am not satisfied that a substantial injustice has been caused by the error given the matters set out in paragraph [28], above.

Balance of Convenience

30. [30]
    The impacts upon Du of losing their tenancy are significant:

    1. Du has a camper trailer located on the site that is under repair and cannot be registered. Accordingly, it cannot be removed from the site without towing. The vehicle that can tow it is also damaged.  
    2. Du also says they work full time, from home, and will lose income for each day they are compelled to leave.
    3. Du says they are being treated for a medical condition that will be aggravated by the stress of moving, risking psychological harm.
    4. Du says the warrant period falls during Chinese New Year and eviction during this period amounts to a breach of Du’s cultural rights. 
    5. The period immediately prior to the termination date, preceding the warrant period is subject to severe weather warnings with heavy, intense rainfall predicated. Du says it would not be safe or practical to vacate at that time. 
31. [31]
    Du says that INA will not suffer detriment if the stay is granted because Du will continue paying rent during the stay period, noting that the park is not fully tenanted and therefore INA will benefit from Du’s payments.
32. [32]
    Further, the application for leave to appeal or appeal will be rendered nugatory if the stay is not granted, because the Appeal Tribunal cannot re-possess tenants of property once they have been dispossessed of it, regardless of the outcome upon appeal. In King v King [2010] QCATA 84 this factor weighed heavily in favour of the granting of a stay.
33. [33]
    In Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 the New South Wales Court of Appeal said that “where it is apparent that unless a stay is granted an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay”.^[16]
34. [34]
    INA argue that:

    1. The tenancy was validly terminated based upon unremedied breach.
    2. Du was further in arrears by the hearing date, in the sum of $3,156.85.
    3. Du had reduced arrears to $2,539.99 by the time of their stay submissions filed 31 January 2024, but was still significantly in arrears.
35. [35]
    I find that the balance of convenience favours INA because:

    1. Du does not have a good arguable case on the application for leave to appeal.
    2. The RTRAA permits a lessor to apply to the tribunal to end the tenancy if a breach is not remedied and a tenant fails to leave the property after notice to leave is given. 
    3. Du’s occupancy of the site has, by now, already extended by almost two months beyond the handover date in the validly given notice to leave. Du was not compelled to wait until the warrant period to vacate the property.
    4. An appeal is not an opportunity to relitigate the dispute, nor should the appeal process be misused simply to secure an extension of time to vacate where a termination order has been made and a warrant of possession issued beacuse issues regarding the tenant’s capacity to leave the tenancy (medically, physically, culturally or otherwise) are relevant to the exercise of discretion to terminate.

Stay decision

36. [36]
    As Du does not have a good arguable case on their application for leave to appeal or appeal and as the disadvantage to the respondent, should the stay be granted, outweighs the disadvantage to Du in all the circumstances, the application to stay the decision is refused.

Directions for the conduct of the application for leave to appeal or appeal

37. [37]
    Du ought now to consider whether there is any utility continuing the application for leave to appeal or appeal, having regard to section 47 of the QCAT Act because:

    1. the decision the subject of the application terminated the residential tenancy and provided for a warrant of possession to take effect;
    2. the Appeal Tribunal’s decision to refuse the application to stay the decision has the effect that the tenancy remains terminated, and the warrant is to be executed during its currency; and
    3. the Appeal Tribunal cannot, as an outcome of the appeal process make orders reinstating the tenancy or reversing a warrant of possession that has already been executed.
38. [38]
    The Appeal Tribunal is cognisant that “QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings’.”^[17]
39. [39]
    To that end, directions have been made to permit Du the opportunity to withdraw the application for leave to appeal or appeal if they wish to do so, and if they do not, the Appeal Tribunal will issue further directions for the conduct of the proceeding.