Collins v Blackburn [2017] QCATA 69

CITATION: Collins v Blackburn [2017] QCATA 69 PARTIES: Lucinda Collins (Applicant/Appellant) v Philip Harold Blackburn Lindy Blackburn (Respondents) APPLICATION NUMBER: APL040-17 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 13 June 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 2 February 2017 is set aside. CATCHWORDS: APPEAL – LEAVE TO APPEAL – LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – RECOVERY OF POSSESSION – GENERALLY – where notice to remedy breach – where breach unremedied – where notice to leave – where tenant did not leave – where tenant occupied tenancy for 11 years – where tenant issued 20 notices to remedy breach – where tenant issued proceedings for compensation – where tribunal did not hear the two applications together – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 137, s 138, s 142(3)(a)(i) Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 337(3), s 431 Chambers v Jobling (1986) 7 NSWLR 1 -- 1 of 5 -- 2 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] Lucinda Collins rented a flat from Philip and Lindy Blackburn for about eleven years. At the end of 2016, Mr Blackburn issued a Form 11 for unpaid rent. In the following week, Ms Collins issued eight Forms 11. [2] Mr Blackburn issued a Form 12 notice to leave. Ms Collins did not leave. On 9 January 2017, he filed an application to terminate Ms Collins’ tenancy agreement. [3] In early January 2017, Ms Collins issued another twelve Forms 11. On 19 January 2017, Ms Collins filed her own application – for compensation based on the lack of response to her Forms 11. [4] The tribunal heard Mr Blackburn’s application on 2 February 2017. It terminated the tenancy agreement. The file for Ms Collins’ application records a hearing date of 16 February 2017 but no outcome. [5] Ms Collins wants to appeal the tribunal’s decision to terminate the tenancy. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 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 error.2 [6] Ms Collins says the tribunal erred in not hearing her application at the same time as Mr Blackburn’s application. She says that she has not received any money from Mr and Ms Blackburn despite her claims against them. She says Ms Blackburn’s claim that she had not paid rent was fraudulent. She says she should not be evicted because of her decision to stop paying rent for a short time after a spotless 11-year record in the tenancy. [7] Both parties have filed extra evidence with their submissions. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.3 Ordinarily, an 1 QCAT Act, s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294, [3]. 3 QCAT Act, ss 137 and 138. -- 2 of 5 -- 3 applicant for leave to adduce such evidence must satisfy each of the following tests: a) The evidence could not have been obtained with reasonable diligence for use at the trial; 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 incontrovertible.4 [8] I have considered the proposed evidence filed by both parties. All of it could have been before the tribunal below if the parties had exercised reasonable diligence. Although the evidence is credible, I am not persuaded that it would have had an important impact on the result of the hearing. The fresh evidence should not be admitted. Should the tribunal have heard the two applications together? [9] Ms Collins is correct in pointing out that s 431 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) allows the tribunal to consider two different applications at the same time. [10] The tribunal’s ability to do so depends on it knowing there is more than one claim. The tribunal’s limited resources do not allow it to search its data base every time an application is filed to see if there is another application by the same parties about the same agreement. The solution lies in the parties’ hands and Ms Collins did not tell the tribunal she had filed an application until after the tribunal made its decision.5 [11] The tribunal was not in error. Should the tribunal have given Ms Collins compensation? [12] Because the tribunal had no knowledge of Ms Collins’ claim, it could not have given her any compensation in the proceeding the subject of the appeal. The only matter before the tribunal was an application to terminate the tenancy. [13] The tribunal’s decision to terminate the tenancy did not affect Ms Collins’ right to compensation, if any. That was the subject of another application and, it appears, that Ms Collins may still be able to pursue that claim. Was Mr Blackburn’s claim fraudulent? [14] Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable 4 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. 5 Transcript page 1- 8, lines 25 – 27. -- 3 of 5 -- 4 of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.6 An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.7 [15] At the hearing, Mr Blackburn told the tribunal that he had audited the rent payments and discovered that, in fact, Ms Collins was $1665 in arrears.8 Mr Blackburn did not support that submission with evidence and he had not given Ms Collins a notice to remedy breach that nominated that amount. The tribunal could not terminate the tenancy because of Ms Collins’ failure to pay that larger claim. [16] The tribunal could terminate the tenancy agreement if Ms Collins did not remedy the earlier breach within the nominated period. Ms Collins admitted that she stopped paying rent.9 She admitted she did not pay any money in response to the notice to remedy breach.10 The tribunal was entitled to terminate the tenancy agreement even though Ms Collins remedied that breach after the expiry of the notice to leave. Should the tribunal have terminated the tenancy? [17] Ms Collins makes a good point: she has been a good tenant for eleven years and, until recently, always paid her rent on time. She thought that she was up-to-date with the rent by the time of the tribunal hearing. [18] In deciding whether to terminate a tenancy for an unremedied breach, the tribunal may have regard to the seriousness of the breach, any steps Ms Collins took to remedy the breach, whether the breach was recurrent, the detriment caused to Mr and Ms Blackburn by the breach and whether Mr and Ms Blackburn had acted reasonably.11 [19] The breach that led to Mr Blackburn’s application was not serious. Ms Collins had remedied the breach by the time of the hearing. On the material before the tribunal, the breach was not recurrent. There was limited detriment to Mr and Ms Blackburn. Ordinarily, one failure to pay rent in eleven years would not justify a termination. [20] The tribunal did not turn its mind to any of these issues. That is an error. [21] On the face of the material, it would appear that the tribunal’s error has created a substantial injustice. In her appeal submissions, Ms Collins acknowledged that she believed her tenancy would be ending soon and that she was happy to move. Although perhaps premature, the termination of the tenancy agreement has not caused Ms Collins a substantial injustice. 6 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125- 126. 7 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 8 Transcript page 1-3, lines 34 – 42. 9 Transcript page 1-6, lines 34 – 41. 10 Transcript page 1-6, lines 15 – 22. 11 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 337(3). -- 4 of 5 -- 5 Further, as I have indicated, Ms Collins has retained her right to claim compensation. [22] However, if the decision stands it may have an adverse effect on Ms Collins’ rental history. Therefore, because the tribunal erred in failing to exercise its discretion, I will grant leave to appeal, allow the appeal and set aside the decision of 2 February 2017. As Ms Collins has vacated the tenancy, there is no need to make any further order in this proceeding. -- 5 of 5 --