Coulthard v National Real Estate Solutions Pty Ltd [2015] QCATA 116

CITATION: Coulthard v National Real Estate Solutions Pty Ltd [2015] QCATA 116 PARTIES: Colin John Coulthard (Applicant/Appellant) v National Real Estate Solutions Pty Ltd (Respondent) APPLICATION NUMBER: APL253-15 MATTER TYPE: Application HEARING DATE: 6 August 2015 HEARD AT: Brisbane DECISION OF: Justice Carmody DELIVERED ON: 6 August 2015 (Ex tempore) DELIVERED AT: Brisbane ORDERS MADE: THE TRIBUNAL ORDERS THAT: 1. The application to stay the operation of the decision and orders of Magistrate Madsen issued on 3 June 2015 is refused. 2. The respondent must file and serve submissions on the extension, reissuing or reinstatement of the warrant of possession by 4:00PM, 13 August 2015. 3. The applicant must file and serve submissions in reply to the application for the extension, reissuing or reinstatement of the warrant of possession by 4:00PM, 20 August 2015. 4. The application of the respondent for the extension, reissuing or reinstatement of the warrant of possession, and the applicant’s application for leave to appeal and appeal, is listed to be heard simultaneously by oral hearing at the Queensland Civil and Administrative -- 1 of 7 -- 2 Tribunal in Brisbane not before 27 August 2015. 5. The applicant and respondent are relieved of complying with Orders 2, 3 and 4, if the applicant and respondent inform the Tribunal that the matter has been settled before the date listed for the tribunal hearing. CATCHWORDS: APPEAL – LEAVE TO APPEAL – APPLICATION FOR STAY OF DECISION – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where the Magistrate ordered the termination of a tenancy agreement entered into between the applicant and the respondent – where a warrant of possession was issued against the applicant – where the applicant submitted that the Magistrate erred by exercising his discretion to order the termination of the tenancy agreement – where the applicant submitted that the Magistrate erred by failing to exercise his discretion to delay the execution of the order terminating the tenancy agreement – where the applicant submitted that the Magistrate erred in law by issuing a warrant of possession in purported violation of section 351(6) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3, 28(1), 28(3), 145 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 341, 351 Pickering v McArthur [2005] QCA 294 Adsett v Anderson [2011] QCATA 53 Edenborough v Mt Isa Properties and Auctioneers [2011] QCATA 231 Hill v Mitakoodi Aboriginal Corporation [2011] QCATA 108 Ramage v Freeman [2012] QCATA 56 APPEARANCES: C J Coulthard applicant/appellant A West & M Knight for the respondent -- 2 of 7 -- 3 REASONS FOR DECISION [1] The applicant, Mr Colin John Coulthard, filed an application for leave to appeal and appeal against the decision of Magistrate Madsen in relation to a residential tenancies minor civil dispute. The applicant claims that the Magistrate erred by: 1. incorrectly exercising his discretion under s 341 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) to terminate the tenancy agreement between the applicant and respondent; 2. failing to exercise his discretion under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) to delay the issuing of a warrant of possession for fourteen days; 3. issuing a warrant of possession on 3 June 2015 to take effect on 17 June 2015 in purported contravention of s 351(6) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). [2] The applicant seeks interlocutory orders staying the performance of the orders issued by Magistrate Madsen on 3 June 2015, which were that: 1. the residential tenancy agreement between the parties be terminated as from midnight on 3 June 2014 on the ground of failure to leave; 2. a warrant of possession to issue authorising a police officer to enter the premises of the proprietor; 3. the warrant shall take effect on 17 June 2015 and remain in effect for 14 days, and expire at 6:00PM on 30 June 2015; 4. The warrant be executed as soon as reasonably practicable after taking effect; and 5. Entry under the warrant shall only be between the hours of 8:00AM and 6:00PM. Principles governing applications to stay the original decision pending the application for leave to appeal and appeal [3] The Queensland Civil and Administrative Tribunal, in exercising its appellate jurisdiction, may make an order staying the operation of a decision being appealed against until the appeal is finally decided.1 [4] The purposes of the power to stay the operation of a decision until the appeal is resolved include to avoid injustice caused by rendering the appeal futile, destroying the subject matter of the appeal, or causing irreversible and significant inconvenience or detriment to the prospective appellant. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 145(2). -- 3 of 7 -- 4 [5] The power to stay the operation of the primary decision, however, is not to be exercised merely because such circumstances can be established. The appellate Tribunal must enquire into the “balance of convenience” and competing rights of the parties. Irreversible and significant inconvenience or detriment to the appellant may be outweighed by a proportionately greater cost or injury inflicted on the respondent – successful in the primary proceedings – in delaying enforcement of the original decision and orders. [6] In conducting this enquiry, the Tribunal must also consider the relative cogency of the positions of the appellant and respondent, whilst being cautious not to prejudge the merits of the application or appeal. The comparative strength of the respective parties’ positions may proportionately adjust the degree of proof required to make out the substantive components of the balance of convenience. Accordingly, an appellant possessing an highly meritorious appeal may need to adduce less evidence of irreversible and significant inconvenience or detriment to establish that the balance of convenience militates in favour of granting the application for stay. Conversely, an appellant with a patently unmeritorious appeal will not ordinarily be able to establish an application to stay.2 [7] “Meritorious”, in this context, does not mean the mere articulation of a relevant ground of appeal. Rather, the applicant must also demonstrate that the ground of appeal should entitle the applicant to leave to appeal (where required), and that the appeal should be allowed. In certain circumstances, the applicant may also be required to establish that it is entitled to orders of the category sought, although it is generally sufficient to demonstrate that the applicant may be entitled to orders substantively more favourable than those issued by the primary decision-maker. [8] Although, in some cases, the rigour of such principles may appear to operate harshly, a party is entitled to the fruits of their litigation. This principle rests on the stable foundation that the appellate jurisdiction of the Queensland Civil and Administrative Tribunal is not a forum to re-litigate matters properly heard and determined at first instance, nor is the original jurisdiction of the Tribunal an interlocutory “testing ground” for arguments to be more fully and comprehensively presented on appeal. If this Tribunal were to regularly issue orders staying the original decision pending appeal, it would risk converting the original jurisdiction of the Tribunal into a mere formality or “rehearsal”, subject to adjustment by the Tribunal exercising its appellate jurisdiction. This would be fundamentally inimical to the time and resource efficiency objectives prescribed under s 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Application of principles to the present application [9] In considering the balance of convenience of the present application, it is clear that the applicant may sustain an irreversible and significant detriment 2 Indeed, where an application for leave to appeal and appeal discloses no clear basis for the appeal, it would be truly extraordinary for a stay to be granted in favour of the appellant, even where the evidence indicates that the appeal would be rendered futile. -- 4 of 7 -- 5 or disadvantage if the warrant for possession is executed against the leased premises. If the applicant is ejected and the premises is re-let, it may be impractical for the applicant to resume possession of the residence. Even if that were practical, the need for interim residential arrangements may preclude the resumption of possession if long-term leases are executed without causing further breaches to lease contracts. Thus, the applicant has established that they may sustain an irreversible and significant detriment or disadvantage may execution of the warrant of possession. [10] However, the applicant has failed to present any cogent grounds for the application or appeal. The applicant has asserted that Magistrate Madsen erred in exercising his discretion to terminate the lease and issue a warrant for possession, but failed to particularise the precise nature of the error, or furnish adequately reasoned arguments to support the proposed finding. [11] The applicant also claims that Magistrate Madsen erred in law under s 351(6) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) by issuing the warrant for possession. If the applicant does indeed rely on s 351(6) of that Act, it is unclear how it has any relevance to these proceedings, let alone having been contravened by the Magistrate. [12] However, it is assumed that the applicant intended to submit that Magistrate Madsen erred in law under s 351(5) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) by issuing the warrant for possession. Section 351(5) requires the warrant of possession to take effect within three business days of the date upon which it is issued. The Magistrate issued the warrant of possession on 3 June 2015 to take effect on 17 June 2015, ten business days after the date on which the warrant was issued. The warrant of possession, therefore, was prima facie non- compliant with s 351(5) of the Act. [13] The effect of the non-compliance, however, was favourable to the applicant. It was likely intended to ensure the applicant – a person of limited financial means – was provided with a fourteen day period within which to secure alternative residential accommodation. In this respect, the Magistrate sought to administer “practical justice” in the circumstances of the case, even though it was outside the strict letter of the law. [14] The applicant has identified a clear error of law in the decision of the Magistrate. Despite this, the Tribunal may refuse to grant leave to appeal or allow an appeal, notwithstanding an extant error of law, where it can be established that it did not cause substantial injustice to the applicant.3 [15] Although the applicant has identified that (a) he is likely to sustain an irreversible and significant detriment or disadvantage if the application for stay of the primary decision is not granted and (b) the Magistrate committed a clear error of law in issuing the warrant of possession, the applicant has failed to demonstrate that there is a likelihood or substantial possibility of 3 Hill v Mitakoodi Aboriginal Corporation [2011] QCATA 108; Edenborough v Mt Isa Properties and Auctioneers [2011] QCATA 231. -- 5 of 7 -- 6 him obtaining leave to appeal or being successful in the appeal. This is because the applicant has adduced no evidence that he sustained any practical detriment or substantial injustice that was caused by the legal error of the Magistrate. Indeed, the applicant appears to have been the beneficiary of his error, through securing time to obtain alternative residential accommodation. Accordingly, the application to stay the decision and orders should be refused. Status of the warrant of possession and termination order [16] During the proceedings, the respondent informed the Tribunal of its intention to request a warrant of possession under s 351 of the Residential Tenancies and Rooming Accommodation 2008 (Qld). The respondent made the request due to uncertainty regarding the continued validity of the warrant issued by Magistrate Madsen on 3 June 2015. [17] Section 351(4) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) prescribes that a warrant of possession ends fourteen days after it takes effect or, if the Tribunal is satisfied that special circumstances justify the continuation of the warrant until a specified later date, the later date nominated in the warrant. [18] Magistrate Madsen issued the warrant to take effect on 17 June 2015 and expire at 6:00PM on 30 June 2015. In the intervening time period, the applicant obtained an interim order suspending the operation of the termination order and warrant of possession until further orders were issued by the Tribunal. The interim orders, however, do not purport to modify, vary or amend the original orders issued by Magistrate Madsen, including the date nominated for the expiration of the warrant of possession. [19] As the interim orders staying the operation of the warrant of possession on 25 June 2015 did not amend the date and time prescribed for its expiration, the warrant of possession elapsed on 30 June 2015 due to the effluxion of time. The order terminating the lease, however, remains in effect. [20] The appellate Tribunal possesses jurisdiction to reinstate a warrant of possession after it has expired.4 Therefore, the Tribunal may reinstate the warrant of possession issued by Magistrate Madsen on 3 June 2015. As the applicable procedure for a proceeding is at the discretion of the Tribunal,5 I am entitled to dispense with formal requirements associated with the respondent filing a formal interlocutory application for the extension, reinstatement or reissuing of the warrant of possession. [21] Notwithstanding the flexibility and informality of the Tribunal’s procedure, it is required to observe the rules of natural justice and procedural fairness.6 Although the respondent was prepared to make submissions on the reinstatement or reissuing of the warrant of possession, the applicant 4 Adsett v Anderson [2011] QCATA 53; Ramage v Freeman [2012] QCATA 56. 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 28(1), 28(3)(d). 6 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3)(a). -- 6 of 7 -- 7 asserted he was not in a position to respond to those submissions. Indeed, there is no evidence that the respondent had informed the applicant of its intention to seek a warrant of possession if the applicant was unsuccessful in his application for a stay of the decision and orders of Magistrate Madsen. [22] The applicant is a self-represented litigant with limited financial resources and an unsophisticated knowledge of the applicable law. It could not be reasonably expected that the applicant would have anticipated the respondent’s application to reinstate the warrant of possession. In such circumstances, requiring the applicant to make improvised submissions without having an opportunity to read and consider the submissions of the respondent, or otherwise obtain independent legal advice, would appear to constitute a gross deprivation of procedural fairness. [23] Accordingly, although I accept the respondent’s informal application for the reinstatement of the warrant of possession and dispense with any associated procedural requirements, it would be manifestly inappropriate to hear and determine the application without giving both parties an opportunity to file submissions. ORDER [24] The Tribunal orders that: 1. the application to stay the operation of the decision and orders of Magistrate Madsen issued on 3 June 2015 is refused. 2. the respondent must file and serve submissions on the extension, reissuing or reinstatement of the warrant of possession by 4:00PM, 13 August 2015. 3. the applicant must file and serve submissions in reply to the application for the extension, reissuing or reinstatement of the warrant of possession by 4:00PM, 20 August 2015. 4. the application of the respondent for the extension, reissuing or reinstatement of the warrant of possession, and the applicant’s application for leave to appeal and appeal, is listed to be heard simultaneously by oral hearing at the Queensland Civil and Administrative Tribunal in Brisbane not before 27 August 2015. 5. the applicant and respondent are relieved of complying with Orders 2, 3 and 4, if the applicant and respondent inform the Tribunal that the matter has been settled before the date listed for the tribunal hearing. -- 7 of 7 --