Armstrong v Triple One Group Pty Ltd t/a Robert James Realty (No 2) [2016] QCATA 137

CITATION: Armstrong v Triple One Group Pty Ltd t/a Robert James Realty (No 2) [2016] QCATA 137 PARTIES: Gary Armstrong (Applicant/Appellant) v Triple One Group Pty Ltd t/a Robert James Realty (Respondent) APPLICATION NUMBER: APL091-16 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Carmody DELIVERED ON: 15 September 2016 DELIVERED AT: Brisbane ORDERS MADE: IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT: 1. The application for leave to appeal or appeal is refused. APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – IN GENERAL – where the applicant was a tenant – where the lease expired – where the applicant claims a verbal agreement to extend the lease was entered – where the tribunal made findings of fact – where the applicant alleges the respondents misled the tribunal – whether the tribunal made an error of fact or law – whether leave to appeal should be granted Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 70 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 216 -- 1 of 6 -- 2 Armstrong v Triple One Group Pty Ltd t/a Robert James Realty [2016] QCATA 42 Armstrong v Triple One Group Pty Ltd t/a Robert James Realty [2016] QCATA 112 THE BUILDER v Queensland Building and Construction Commission [2016] QCAT 85 Cachia v Grech [2009] NSWCA 232 Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 Fox v Percy (2003) 214 CLR 118 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 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] The applicant seeks leave to appeal the decision of a Magistrate sitting as the tribunal to order the termination of his lease and a warrant of possession1 for non-compliance with a Form 12 Notice to Leave. The context [2] On 24 November 2014 the respondents entered a written lease agreement to let their Noosa heads property to the applicant. That lease expired on 22 November 2015. Leading up to the lease’s expiry, the parties entered discussions about extending the lease. A draft lease was forwarded but, for one reason or another, the applicant was not aware the offer had been made and did not accept it in writing. However, the applicant continued as occupier on a periodic tenancy. [3] The respondents then decided they wanted to move back into the property. On 30 December 2015, they issued a notice to leave by 2 March 2016, but the applicant did not vacate until 14 April 2016. [4] The applicant challenged the validity of the respondents’ notice to leave based on his claim that there had been a verbal agreement to renew the lease that was never confirmed in writing. He claims $25,000 in 1 On 18 March 2016. -- 2 of 6 -- 3 compensation for “economic loss” (moving expenses) and “non-economic loss” (the inconvenience of having to move out). [5] The tribunal at first instance rejected the applicant’s version of events and instead found the notice to leave had legally terminated the tenancy on and from 2 March 2016. The applicant’s submissions [6] On 1 April 2016 I refused to stay the operation of that decision and reinstated the warrant of possession.2 The applicant’s submissions in this application for leave appear formulated largely as a rebuke to my reasons for that refusal.3 This is not what the applicant should be making submissions about in seeking to appeal the original decision. [7] At [3] I noted that: “On a preliminary view of the material, the Tribunal is unconvinced of the merits of the applicant’s claims that the respondents committed “offences” under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) based on an unproven “verbal agreement”.” [8] In response, the applicant says: (a) there was a valid contract, being the verbal agreement, in which offer, acceptance, consideration and intention were evident; (b) the lease continued to operate by virtue of s 70 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act); (c) the respondents knowingly gave the registry false and misleading information, breaching s 216 QCAT Act; and (d) a notice to leave was not issued in November 2015, only an offer to renew the tenancy. [9] At [4] I said: “Nor (am I) convinced that the Magistrate failed to take into account relevant considerations and denied the applicant natural justice.” [10] In response, the applicant argues that the tribunal “refused to accept the mitigating circumstances outlined” in the applicant’s submissions and failed to take into account general “ethical” considerations. A reading of the transcript, however, makes it plainly clear that the tribunal noted and 2 Armstrong v Triple One Group Pty Ltd t/a Robert James Realty [2016] QCATA 112. 3 Indeed, the applicant applied unsuccessfully to the appeal tribunal to appeal my decision to refuse a stay in Armstrong v Triple One Group Pty Ltd t/a Robert James Realty [2016] QCATA 42. -- 3 of 6 -- 4 heard all of the applicant’s submissions and found against him. These are not appellable errors. [11] At [5] I said: “The applicant’s assessed chances of success on appeal is a factor weighing heavily against granting a stay.” [12] The applicant responds by saying that I discounted the merits and evidence of his case, denying him natural justice. This is not the case. Whether an applicant has an arguable case is certainly a material consideration in assessing whether to exercise a discretion to grant a stay.4 [13] At [6] I said: “The applicant was given two months’ notice to leave the property in late December 2015. He has furnished no evidence that he would suffer excessive hardship should the stay not be granted.” [14] In response, the applicant argues that the RTRA Act does not define “hardship”, but the tribunal should take note of the deceptive behaviour of the respondents and the stress, harassment and financial costs incurred by the applicants as a result. [15] At [7] I noted that: “…the balance of convenience favours allowing the lessors to move back into the property, as they wish to do, pending appeal.” [16] In response, the applicant argues his injury could not have been any less than that to the respondent and this was not properly considered by the tribunal, giving rise to procedural unfairness. There is no procedural unfairness, though, in allowing owners of a unit to move back in at the expense of a tenant who is non-compliant with a notice to leave. [17] The applicant claims my refusal to grant the stay of the tribunal decision has rendered this appeal nugatory and demonstrates that he has been further denied procedural fairness. This seems to stem from his mistaken belief that he was “entitled to stay in the property until the appeal was herd (sic) in the correct fashion”. The applicant was offered a fresh lease on the same terms but this was not returned to the respondent. [18] The applicant contends that the original lease continued to operate by virtue of s 70 RTRA Act which states: (1) This section applies to an agreement if— (a) it creates a residential tenancy for a fixed term; and 4 THE BUILDER v Queensland Building and Construction Commission [2016] QCAT 85 [8]; Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453, 455. -- 4 of 6 -- 5 (b) none of the following notices is given, or agreements or applications made before the day the term ends (the end day)— (i) a notice to leave; (ii) a notice of intention to leave; (iii) an abandonment termination notice; (iv) a notice, agreement or application relating to the death of a sole tenant under section 277(7); (v) a written agreement between the lessor and tenant to end the agreement. [19] The application of s 70 is expressly displaced where a valid notice to leave is issued. The respondents have an RTA Form 12 showing that happened on 30 December 2015. From then on, the applicant was under an obligation to move out by 2 March 2016. The applicant has adduced no contrary evidence that the Form 12 was falsified or fraudulent. [20] The applicant claims the respondents breached their duty not to make false or misleading statements to the tribunal.5 The tribunal dealt with the applicant’s concerns at 1-11:16-17 of the transcript and found the respondents had not acted deceptively. I am in no better position to make a judgment on that in an on the papers application for leave to appeal. There is no reason to overturn this finding. The same can be said for the finding that no verbal contract had been negotiated. These grounds are incapable of supporting an award of leave. The case for leave [21] Ultimately, the applicant is clearly aggrieved that the tribunal opted to act on the impugned veracity of the respondents’ version of events rather than his. However, leave to appeal a minor civil dispute will generally only be granted where there is some question of general importance upon which further argument and a decision of the appeal tribunal is to the public advantage;6 there is a reasonably arguable case that the primary decision made an error;7 and, there are good prospects the applicant would be granted favourable orders,8 or to correct a substantial injustice to the applicant caused by error.9 [22] Whether there was an enforceable tenancy or a valid notice to leave were both contestable facts. A “mistake” of fact can be made without appellable error if, as here, a finding could rationally have gone either way. If the 5 Pursuant to QCAT Act s 216. 6 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578 and 580. 7 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 8 Cachia v Grech [2009] NSWCA 232 [13]. 9 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Fox v Percy (2003) 214 CLR 118 [32] (Gleeson CJ, Gummow and Kirby JJ). -- 5 of 6 -- 6 decision was reasonably open on the facts, the proper inference is that the tribunal correctly understood its role and function, applied the statutory definition correctly to the facts and, therefore, there is no legitimate ground for setting it aside. [23] Thus, the applicant has failed to make out a better than arguable case and, therefore, a grant of leave is not justified. The leave application is refused accordingly. -- 6 of 6 --