Cloudfeather & Anor v Bay Islands Property Pty Ltd [2024] QCATA 22

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Maharu Cloudfeather & Anor v Bay Islands Property Pty Ltd [2024] QCATA 22 PARTIES: MAHARU CLOUDFEATHER (first appellant) KATE AVERY (second appellant) v BAY ISLANDS PROPERTY PTY LTD (respondent) APPLICATION NO: APL039-22 ORIGINATING APPLICATION NO. MCDT8 OF 2022 MATTER TYPE: Appeal DELIVERED ON: 1 March 2024 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judicial Member PG Stilgoe OAM ORDERS: 1. Leave to appeal is refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FOR BIAS IN JUDICIAL PROCEEDINGS – where the Tribunal terminated tenancy for rental arrears – where appellant argued that rent was not paid due to required maintenance – where the Tribunal did not accept the appellant’s submissions on grounds of relevance – where appellants claim the hearing Member was biased – whether appellant should be granted leave to appeal. APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where fresh evidence filed with application for leave to appeal – where fresh evidence could have been obtained for use at hearing – whether the applicant should be granted leave to adduce fresh evidence. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i). Brisbane City Council v Mainsel Investments Pty Ltd [1989] 2 Qd R 204, 215. Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 -- 1 of 5 -- 2 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Pickering v McArthur [2005] QCA 294 Terera & Anor v Clifford [2017] QCA 181 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] Maharu Cloudfeather and Kate Avery were both long-term tenants of a property in Russell Island. In November 2021, Bay Islands Property Pty Ltd were appointed to manage that property. [2] On 15 December 2021, Bay Islands served Ms Cloudfeather and Ms Avery with a Notice to Remedy Breach (Form 11) for outstanding rent arrears totalling $4,852.00 at the time. The Form 11 required Ms Cloudfeather and Ms Avery to remedy the breach within 7 days, the minimum notice period prescribed by the Residential Tenancies Authority. [3] As Ms Cloudfeather and Ms Avery did not pay the outstanding rent within seven days, they were issued with a Notice to Leave (Form 12) with grounds on 23 December 2021. The Notice to Leave required Ms Cloudfeather and Ms Avery to vacate the property by 31 December 2021. [4] Ms Cloudfeather and Ms Avery did not leave the property by the required date, prompting Bay Islands to ask the Tribunal for the termination of the tenancy agreement and a warrant of possession. The Tribunal so ordered. [5] Ms Cloudfeather and Ms Avery now wish to appeal the Tribunal’s Orders on several grounds, including clemency, and the conduct and perceived bias of the hearing Member. [6] Because the appeal arises from the Tribunal’s minor civil disputes jurisdiction, leave of the Tribunal is required1. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error2. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294, [3]; Terera & Anor v Clifford [2017] QCA 181, [10]. -- 2 of 5 -- 3 [7] Ms Cloudfeather has also provided the tribunal with fresh evidence of the condition of the property and injuries she says that she suffered because of its poor condition. Ordinarily, an application for leave to adduce new evidence must satisfy each of the following tests: (a) The evidence could not have been obtained with reasonable diligence for use at the hearing; (b) The evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and (c) That the evidence is credible though it need not be incontrovertible3. [8] During the hearing, Ms Cloudfeather referred to the injuries depicted in the fresh evidence as occurring before the hearing. She also stated that the property had been in disrepair for a long time. The photos of the injuries were taken before the hearing and photos of the property could have been obtained had Ms Cloudfeather been diligent. Ms Cloudfeather has not explained why this material was not available at the original hearing. Leave to adduce fresh evidence is refused. [9] Ms Cloudfeather and Ms Avery have not contested the validity of the Tribunal’s finding that the Notice to Remedy Breach and the Notice to Leave were valid and enforceable. Rather, they argue that the learned Member was rude, displayed bias, and did not consider their submissions. [10] Bias is a very serious allegation. The test is4: “… if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.” [11] During the hearing, Ms Cloudfeather admitted to not paying rent for several months but argued that she had stopped because of maintenance required on the property5. She did not raise any issue about the validity of the lease termination. 3 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408; Brisbane City Council v Mainsel Investments Pty Ltd [1989] 2 Qd R 204, 215. 4 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344. 5 T1-2, 36. -- 3 of 5 -- 4 [12] The learned Member explained to Ms Cloudfeather that there are proper pathways to enforce a lessor’s breach under a lease, but that a hearing for termination of the lease was not one of those pathways6. Even so, the learned Member then allowed Ms Cloudfeather to respond to his comments and advance her argument further7. [13] Though a fair-minded lay observer may view the language used by the learned Member as terse, I am not satisfied that the non-acceptance of irrelevant submissions could be viewed as not bringing an impartial mind to the question being decided. [14] During the hearing, Ms Cloudfeather also objected to Bay Islands’ representative, Deborah Usmar,8 stating that Ms Usmar had never visited the subject property9. Ms Usmar is a property manager employed by Bay Islands. The learned Member was satisfied that the agency was properly represented by their employee10 and there is nothing to suggest that Ms Usmar’s presence resulted in bias, or unfairness. [15] The lack of contact between Ms Luzma and the property is irrelevant when there is no issue about arrears of rent and Ms Luzma’s own personal knowledge of affairs is not required as evidence. This cannot form a ground of appeal. [16] Ms Cloudfeather has raised several other appeal grounds. [17] First, she states that the outstanding rent was paid in full after the conclusion of the hearing. This is a case of too little, too late. The Tribunal had already terminated the tenancy for the non-payment of rent. [18] She also states that there were discrepancies in the rental ledger after making that payment, namely the date to which the rental arrears were paid. This is not a matter relevant to the current appeal. Ms Cloudfeather admitted that the rent was unpaid and should have taken steps to remedy these concerns in the correct forum. [19] Ms Cloudfeather also requests a grant of clemency. While her circumstances are unfortunate, this is not a proper ground of appeal as it does not point to any error by the learned Member. 6 T1-5, 13-40. 7 T1-5, 42-44. 8 The transcript refers to Bay Islands’ representative as property manager Ms Deborah ‘Luzma’, however, documents filed with original application refer to the property manager as Ms Deborah ‘Usmar’. I referred to Bay Islands’ representative as Ms Usmar on the assumption that her name was not transcribed correctly. 9 T1-3, 20-21. 10 T1-3, 20-29. -- 4 of 5 -- 5 [20] Finally, Ms Cloudfeather says that Bay Islands have falsely stated that the property’s owner suffers from financial hardship. Again, this is irrelevant to the Notice to Leave issued by Bay Islands and is not a ground of appeal. [21] There is no reasonably arguable case that the learned Member was in error. Leave to appeal should be refused. Orders Leave to appeal is refused. -- 5 of 5 --