Cridland v M1 Real Estate Pty Ltd [2024] QCAT 103

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cridland v M1 Real Estate Pty Ltd [2024] QCAT 103 PARTIES: STEPHANIE CRIDLAND (applicant/appellant) v M1 REAL ESTATE PTY LTD (respondent) ORIGINATING APPLICATION NO/S: Q4412-23 MATTER TYPE: Residential tenancy matters DELIVERED ON: 12 February 2024 HEARD AT: Brisbane DECISION OF: Member Lember ORDERS: The application to stay a decision filed 2 February 2023 is refused. The interim order made 5 February 2024 suspending the decision in MCDQ 4412-23 made on 5 December 2023 is vacated. The Warrant of Possession made on 5 December 2023 is re-issued to take effect on 12 February 2024. The Warrant of Possession shall remain in effect for 14 days to expire at 6:00pm on 25 February 2024. The Warrant of Possession is to be executed as soon as reasonably practicable after taking effect. Entry under the warrant shall only be between the hours of 8:00am and 6:00pm. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – reopening application – whether stay should be granted pending determination of reopening application Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 92 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 43, s 61, s 138, s 138A, s 139, sch 3 Residential Tenancies and Rooming Accomodation Act 2008 (Qld) s 206, s 293, s 326, s 350, s 351 -- 1 of 7 -- 2 Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 Penfold v Firkin & Balvius [2023] QCATA 11 Young v Smartre Property Management Pty Ltd [2023] QCAT 434 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 What is this application about? [1] Ms Cridland has occupied a Salisbury property as her home for over twenty-two years but was asked to leave when the fixed term of her most recent tenancy agreement ended on 28 October 2023. When Ms Cridland failed to leave, the respondent (as managing agent for the lessor) sought, and on 5 December 2023 was granted, orders terminating the tenancy from 31 January 2024 and a warrant of possession was issued effective for fourteen days from 1 February 2024 (the ‘termination decision’). [2] Police forewarned Ms Cridland that they intended to execute the warrant at 11.30am on 6 February 2024. Ms Cridland then applied to stay the termination decision (on 2 February 2024) and to reopen the termination decision (on 5 February 2024). [3] Having suspended the termination decision for a brief period to permit the parties to make submissions on the application to stay the termination decision, and having now considered the application and the submissions made, the application to stay is refused, for the reasons that follow. Reopening stays – the legislative framework [4] Section 138A(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) allows the tribunal to grant a stay of a decision until a reopening application is finally decided. [5] Section 138 permits a reopening of proceedings which have been heard and decided by the tribunal if a ‘reopening ground’ exists, namely if: (a) the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or (b) the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.1 [6] As Ms Cridland appeared at the hearing at which the termination decision was made, she relies on ‘substantial injustice/new evidence’ as her reopening ground. [7] An application to reopen must be made by Rule 92 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’) on the approved form 1 QCAT Act, Schedule 3 Dictionary. -- 2 of 7 -- 3 within 28 days of being given notice of the decision, although these requirements are procedural and, in an exercise of discretion, may be waived in a suitable case under section 61 of the QCAT Act.2 [8] The tribunal can only reopen if a reopening ground exists, and the ground could be effectively or conveniently dealt with by a reopening.3 [9] Applying the general principles for granting a stay set out in Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 [8] to a reopening, the tribunal need be satisfied that: (a) the applicant has a good arguable case on the application for reopening; (b) the applicant will be disadvantaged if a stay is not ordered; and (c) 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 for reopening [10] According to the minor civil dispute file (‘Q4412-23’), Ms Cridland attended the hearing in person on 5 December 2023 in which the decision was made and received the decision by email immediately afterwards. [11] Her twenty-eight-day period to file an application to reopen ended on 2 January 2024, and the application for reopening was therefore filed one month out of time, a significant delay. [12] Ms Cridland has not explained the delay, nor has she applied to extend time. It will be a matter for the tribunal considering the application to reopen whether to exercise discretion to extend time in those circumstances, however, an extension of time is less likely to be given where the delay is significant and unexplained. [13] For present purposes, that the application to reopen was filed out of time, that the delay is significant and that it has not been explained or an extension of time to apply sought, are favours that weight against a finding that there is a good arguable case for reopening. [14] Assuming, however that time to apply is extended, Ms Cridland must establish a reopening ground. The application to reopen expresses its grounds on the following terms: I will suffer extreme hardship and am already suffering as a result of this decision. I did not have the benefit of legal advice which I now seek. The reasons of the applicant have changed post this decision, meaning that their reasons given to the hearing appear false. The agent/applicant wasn’t truthful in their application and the reasons they now state that this is happening is different to what was told to the tribunal. 2 Young v Smartre Property Management Pty Ltd [2023] QCAT 434. 3 QCAT Act, s 139(4). -- 3 of 7 -- 4 The full facts of my case were not properly outlined as I had no legal assistance and have no experience with any legal proceedings in the past before. It appears the applicant is practicing misleading and deceptive conduct in the way they have handled this. The new agreement (lease) was not presented in good faither at all. It was intended to mislead and to end the ongoing 22 yr periodical. [15] The application to stay added that: This decision has been made on application by the real estate agent, who has given multiple reasons they wish the tenant to vacate, who hasn’t been open with the tenant and who appear to have practiced some misleading and deceptive conduct. Having to leave after twenty-two years in the property will case excessive hardship. The tenant has not had the benefit of legal advice which they now need and are seeking. A denial of natural justice all the way. A failure to negotiate in good faith at all. [16] No additional submissions were filed for Ms Cridland. [17] Respectfully, Ms Cridland raises arguments but has not tendered new evidence and certainly not significant new evidence to establish a reopening ground, as defined. [18] Whilst the arguments do not amount to reopening grounds, for completeness, I will address each, briefly, in turn: (a) A denial of natural justice/seeking opportunity to obtain legal advice. Ms Cridland did not seek an adjournment of the 5 December 2023 hearing to seek legal advice, and, in any event, parties are expected to self-represent in the tribunal.4 Ms Cridland was able to consider the application for termination, and she prepared and filed an affidavit and submissions ahead of the hearing and was given the extended period of notice she sought in the hearing. There is no merit in any argument that she was denied natural justice in those circumstances. (b) A failure to negotiate in good faith. This not required of a lessor, nor is it relevant to a termination decision, on reopening or in considering an application to stay. It is also not established on the evidence. (c) Leaving a twenty-two-year tenancy will cause hardship. The tribunal acknowledges that the impact upon Ms Cridland of losing her twenty-two-year tenancy might be grievous. However, these arguments were raised in her pre- hearing submissions and considered by the tribunal in making the termination decision. In her 30 November 2023 Affidavit, Ms Cridland asked the tribunal to grant her a reasonable time to leave, assistance from the lessor’s real estate agent to find suitable alternate accommodation and rent relief so that she could save for a bond. The latter two requests are not orders that are within the tribunal’s power to make, however, an extended period to leave (of almost two months, 4 QCAT Act, s 43(1). -- 4 of 7 -- 5 ending 31 January 2024) was given by the tribunal when the termination order was made, bearing in mind that notice to leave had first been given to Ms Cridland on 5 August 2023 for a 28 October 2023 handover date. (d) Improper/misleading conduct/inconsistencies regarding the lessor’s intended use of the property. The tenancy was grounded upon a failure to leave pursuant to a notice to leave at the end of a fixed term, and, as such the lessor’s future intended use for the property has no bearing upon or relevance to the termination decision. (e) Improper conduct in rolling a periodic tenancy to a fixed term tenancy agreement. The lessor says that Ms Cridland was offered and accepted a six- month fixed term tenancy commencing 29 July 2022 and ending 28 January 2023. Had Ms Cridland not entered that tenancy, the lessor was well within time to terminate the periodic tenancy under then current tenancy legislation should he have wished to do so. A further fixed term of six months was offered to Ms Cridland and accepted by her for the period 29 January 2023 to 28 July 2023. Prior to the end of that period Ms Cridland did not respond to an offer of a further fixed term lease, this time for three months, and notice to leave was given. Ms Cridland then expressed that she wished to accept a three-month fixed term tenancy, so the lessor withdrew the notice to leave, and the current fixed term tenancy agreement was entered into for the period 29 July 2023 to 28 October 2023. It cannot be said therefore that the current fixed term tenancy agreement was a sham or some other arrangement to avoid the protections now offered to tenants under periodic tenancies. [19] On the information currently before the Tribunal, Ms Cridland does not have a reopening ground and her reopening application is unlikely to succeed. This does not favour granting a stay. Any other defects? [20] Even though jurisdiction is not raised, I have considered nonetheless wheher there is a reasonably arguable case of jursidictional or procedural defect in the termination decision that would render it a nullity5 and find that there is no such defect because: (a) The application for termination filed on 31 October 2023 was grounded upon a failure to leave following the giving of a Form 12 Notice to Leave (Form 12).6 (b) The Form 12 was given on 10 August 2023 for the end of a fixed term tenancy agreement under section 291 of the Residential Tenancies and Rooming Accomodation Act 2008 (Qld) (‘RTRAA’). (c) The handover date in the notice was 28 October 2023, reflecting the end of the fixed term of the tenancy agreement. Accordingly, the Form 12 having been given on 10 August 2023, provided for more than the minimum required two- month period of notice.7 5 Even if the parties do not raise the question of jurisdiction, “there is a fundamental obligation on any court or tribunal to satisfy itself as to jurisdiction when being asked to quell controversies that come before it”: Penfold v Firkin & Balvius [2023] QCATA 11. 6 RTRAA, s293. 7 Ibid, s 326. -- 5 of 7 -- 6 (d) 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. Balance of Convenience [21] The impacts upon Ms Cridland of losing her long-term home are, as I said, grievous. [22] However, in my view, the balance of convenience strongly favours the respondent, who represents the lessor,8 because: (a) There is no good arguable case for reopening. (b) Ms Cridland entered into a fixed term tenancy agreement and that fixed term agreement has ended. The lessor seeks, as he is entitled to under the RTRAA, possession of the property and his agent, the respondent, correctly issued notice to leave that coincided with the end of the fixed term tenancy on 28 October 2023. (c) The RTRAA permits a lessor to end the tenancy and to recover possession of the property if it is not handed over in those circumstances. (d) Ms Cridland’s occupancy of the home has, by now, already extended more than three months beyond the end of the fixed term. (e) The lessor filed a Statutory Declaration declared 7 February 2024 in which he identifies his own disadvantage if the termination decision is stayed, including that: (i) He is a self-funded retiree in his 70s, supporting his 101-year-old mother who currently resides in rental accommodation but now requires a move into residential aged care, funded by proceeds from the sale of the Salisbury property. (ii) The Salisbury property has been significantly under-rented for many years, and rental payments are often in arrears. This seems to be supported by Ms Cridland’s own statement of 30 November 2023 in which she states, “I am faced with rent prices nearly double what I have been accustomed to paying”. (iii) Rent payments have, at times, been in arrears up to 100 days. As at 7 February 2024, rent was paid to 29 December 2023, with a part payment of $142.14, amounting to arrears in excess of $2,000. This is supported by the tenancy ledgers tendered. Decision [23] As Ms Cridland does not have a good arguable case for reopening and as the disadvantage to the respondent, should the stay be granted, outweighs the disadvantage to Ms Cridland in all the circumstances, the application to stay the decision is refused. 8 Ibid, s 206. -- 6 of 7 -- 7 [24] Accordingly, the interim order made 5 February 2024 suspending the decision of 5 December 2023 is vacated and the warrant reissued for a further fourteen days, given that executing it before its now imminent expiry may be impractical to all parties. -- 7 of 7 --