Face 2 Face Foundation Pty Ltd & Anor v Brisbane City Council [2014] QCATA 267

CITATION: Face 2 Face Foundation Pty Ltd & Anor v Brisbane City Council [2014] QCATA 267 PARTIES: Face 2 Face Foundation Pty Ltd and Christopher Graeme Newton (Appellants) v Brisbane City Council (Respondent) APPLICATION NUMBER: APL152-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Dr J R Forbes, Member DELIVERED ON: 12 September 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for leave to appeal is dismissed. 2. In lieu of the orders made on 18 March 2014, substitute the following: (a) The Residential Tenancy Agreement between the parties, in relation to the premises at 953 Rochedale Road, Rochedale, shall be terminated on 20 September 2014 on the ground of failure to leave. (b) I direct the issue of a Warrant of Possession to the Officer in Charge of Police at South Brisbane or other police officer in the State of Queensland. Whereas the Queensland Civil and Administrative Tribunal at Holland Park, on the application of the Brisbane City Council, has made a termination order as above, the warrant authorises the police to enter the said premises and give possession of them to the -- 1 of 7 -- 2 applicant, and exercise the powers under the warrant with necessary and reasonable help and force for a period of 28 days from 21 September 2014 and expiring at 6.00 pm on 19 October 2014. Entry under the warrant must be made between the hours of 8.00 am and 6.00 pm. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – whether jurisdiction of Tribunal under Residential Tenancies and Rooming Accommodation Act 2008 exists – whether tenancy a residential tenancy – where premises occupied as residence by second appellant and other persons – where notice to leave without ground – where application for termination for failure to leave – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 9, s 10, s 11, s 70, s 291, s 293, s 341, s 350 Bale v Mills (2011) 282 ALR 336; [2011] NSWCA 226 Face 2 Face Foundation Pty Ltd & Ors v Brisbane City Council [2013] QCATA 352 Fox v Percy (2003) 214 CLR 118 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Prepaid Services Pty Ltd v Atradius Credit Insurance NV (2013) 302 ALR 732; [2013] NSWCA 252 Rejfek v McElroy (1965) 112 CLR 517 Robinson v Corr [2011] QCATA 302 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Snell v Morgan [2011] QCATA 316 Thompson and Anor v Jedanhay Pty Ltd [2012] QCATA 246 W (an infant), In re [1971] AC 682 -- 2 of 7 -- 3 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 (QCAT Act). REASONS FOR DECISION [1] This residential tenancy dispute between Face 2 Face Foundation Pty Ltd and Newton (“the Tenants”) and the Brisbane City Council (“the BCC”) came before me on two earlier occasions. On the first occasion I dismissed an appeal by the BCC for reasons that no longer apply.1 [2] On the second occasion I granted the Tenants a stay of the subject orders pending the result of an application2 by Mr Newton to the Supreme Court. The Court dismissed that matter on 15 May 2014, so that the stay order is spent, and the application for leave to appeal3 may now proceed. [3] On 30 July 2014 the QCAT registry notified the parties of my appointment to hear and determine this application. No objection to that procedure has been made. [4] By a General Tenancy Agreement in Form 18a under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“the RTA”) the BCC, granted the Tenants a lease of premises at 953 Rochedale Road, Rochdale, commencing on 15 February 2012 and ending on 14 February 2013. The lease4 forbade sub-leasing without the consent of the BCC, and there is sworn evidence, which I accept, that no such consent was given.5 [5] The Tenants remain in occupation of the subject property. On 14 February 2013 they became monthly tenants,6 subject to two calendar months’ notice to vacate the property. [6] According to the BCC the rent for the premises, as 14 May 2014, was $30,555.24 in arrears.7 [7] On 31 October 2013 the BCC gave the Tenants a notice to leave without ground,8 requiring vacant possession by 10 January 2014. The Tenants have not complied. [8] On 14 January 2014 the BCC filed an application for termination of the tenancy for failure to leave.9 1 Face 2 Face Foundation Pty Ltd & Ors v Brisbane City Council [2013] QCATA 352. 2 Originating Application 6566 of 1913 by Christopher Graeme Newton against the BCC. 3 As required by s 142(3)(a)(i) of the QCAT Act. 4 Clause 34(1). 5 Affidavit of Helena Mac sworn 1 July 2013, paragraph 5. 6 RTA s 70(2)(b). Lease executed 30 March 2012, page 8, Special Term 4. 7 Affidavit of Sheione Frances Green, sworn 6 May 2014, filed 7 May 2014, paragraph 7. 8 RTA s 291. 9 RTA s 293. -- 3 of 7 -- 4 [9] The application was heard by Adjudicator Davern on 24 February 2014, and on 18 March 2014 he ordered that: The Residential Tenancy agreement between the parties shall be terminated as at 20 April 2014, in relation to the premises located at 953 Rochedale Road, Rochedale, on the ground of failure to leave. I direct the issue of a Warrant of Possession to the Officer in Charge of Police at South Brisbane or other officer in the State of Queensland. Whereas the Queensland Civil and Administrative Tribunal at Holland Park has made a termination order as above, on the application of the Brisbane City Council, the Warrant authorises the police to enter the premises and give the possession of the premises to the applicant, and exercise the powers under the warrant with necessary and reasonable help and force for the period of 14 days from 23 April 2014 and to expire at 6.00 pm on 6 May 2014. Entry under the warrant must be made between the hours of 8.00 am and 6.00 pm. [10] On 3 April 2014 the Tenants filed an application for leave specifying these grounds of appeal: QCAT does not have jurisdiction. Brisbane City Council engaged in the fraudulent Tort of intentional interference with contractual relations. The issue at first instance [11] The only real ground of opposition to the BCC’s application is that ‘the [RTA] does not apply to the situation and consequently QCAT does not have any jurisdiction’.10 There are a few brief and vague references to fraud in the transcript11, but the decision makes no such finding. That is not surprising, considering the dearth of particulars and evidence, and the cogency of proof needed to support such a charge.12 An application for leave may not be used as a device to enlarge and re-run the issues for trial,13 even if the new material is within the jurisdiction of the Tribunal. Jurisdiction [12] The lease is entitled ‘Residential Tenancies Authority – General Tenancy Agreement – Residential Tenancies Act 1994’. The premises are described as a ‘five acre property ... includ[ing] a house, a large shed, and a number of small horse sheds’.14 10 Reasons for decision, 18 March 2014 (“Decision”) page 2 paragraph [2]. 11 Pages 14 line 5, 18 lines 1 – 2, 34 line 14, 36 line 12. 12 Rejfek v McElroy (1965) 112 CLR 517 at 519 – 521; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170 – 171. It is unjust to make a finding of fraud against a party who has not had an opportunity to deal with that imputation under cross examination: Bale v Mills (2011) 282 ALR 336; [2011] NSWCA 226; Prepaid Services Pty Ltd v Atradius Credit Insurance NV (2013) 302 ALR 732; [2013] NSWCA 252. 13 See paragraphs [17] – [18]. 14 Decision paragraph [4]. -- 4 of 7 -- 5 [13] However, the Tenants argue that there is no tenancy within the meaning of the RTA, and, therefore, that this dispute is not within the Tribunal’s jurisdiction under that Act.15 Pressed to offer an alternative description of their agreement, they variously and inconsistently assert that it is ‘void’, a ‘simple lease’ or a ‘commercial/industrial’ lease.16 [14] Submissions filed by the Tenants on 22 July 201317 assert that, if there is an eviction, ‘twelve people ... will be made homeless’, and the presence of numerous residents on the premises is admitted, indeed emphasised, in other documents filed by the Tenants.18 [15] A residential tenancy is the right to occupy residential premises under a residential tenancy agreement.19 A residential tenancy may exist in ‘a part of premises and land occupied [by] premises’.20 Section 10 of the RTA provides: ‘Residential premises are premises used, or intended to be used, as a place of residence or mainly as a residence’. Even if (as is submitted) ‘place of residence’ and ‘mainly as a residence’ were read conjunctively21, it could not be seriously suggested that land not built upon should be taken into account in deciding whether the premises are ‘mainly’ residential. [16] The size of the house is not given, but it would be drawing a long bow to suggest that, with as many as 12 people dwelling in it at one time, it is nevertheless not a residence. The Adjudicator found that: ‘No ... information or issues have been identified that could raise a challenge to this termination application’.22 Indeed, it would have been difficult to reach any other conclusion. Purpose and limitations of an application for leave [17] The purpose of a leave-to-appeal barrier is to ensure that the primary decision will normally be final. Before an appeal will be entertained, the appellant must demonstrate an arguable case of error, which, if left uncorrected, will result in substantial injustice. “Error” means an error of law, or a finding of fact that is not merely debateable, but rationally indefensible. [18] An essential, and much misapprehended point is that an application for leave to appeal is not an opportunity to re-run the trial. It is not an occasion to repeat and reargue evidence that was reasonably rejected by 15 RTA ss 293, 341, 350. 16 Transcript of hearing 24 February 2014 (“Transcript”) page 30 line 14, page 3 line 38 and page 42 line 1, respectively. 17 Paragraph 2. 18 See submissions of Tenants filed 16 April 2014 paragraphs 7 and 18; ibid 22 April 2014 paragraphs 6, 7 and 17; ibid 23 June 2014 paragraph 5; ibid (Newton) 26 June 2014 paragraph 5; affidavit of Christopher Newton sworn 29 February 2014 paragraph 2 (“twelve people”), paragraph 55; submissions of Tenants 22 July 2014 paragraph 56. 19 RTA s 11. 20 RTA s 9(1). 21 Despite the disjunctive “or”. 22 Decision paragraph [7]. -- 5 of 7 -- 6 the first decision-maker, or to present material that could have been put before him, but was not.23 Certainly it is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.24 [19] It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it deserves. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available.25 Where reasonable minds may differ, a decision is not erroneous simply because one conclusion has been preferred to another possible view.26 Conclusion [20] These are the principles that I must apply. There is nothing unreasonable in the Adjudicator’s findings of fact, and no appellable error appears in his application of the law. The application for leave will be dismissed. The Warrant – Adjustment of times [21] Obviously the times set in the original order are obsolete. At the trial the BCC was disposed to agree to longer times than usual,27 and I think that is appropriate. There will be an order to that effect. ORDERS 1. The application for leave to appeal is dismissed. 2. In lieu of the orders made on 18 March 2014 substitute the following: (a) The Residential Tenancy Agreement between the parties, in relation to premises at 953 Rochedale Road, Rochedale, shall be terminated on 20 September 2014 on the ground of failure to leave. (b) I direct the issue of a Warrant of Possession to the Officer in Charge of Police at South Brisbane or other police officer in the State of Queensland. Whereas the Queensland Civil and Administrative Tribunal at Holland Park, on the application of the Brisbane City Council, has made a termination order as above, the warrant authorises the police to enter the said premises and give possession of them to the applicant, and exercise the powers under the warrant with necessary and reasonable help and force for a period of 28 days from 21 September 2014 and expiring at 6.00 pm on 19 October 23 Snell v Morgan [2011] QCATA 316 at [10]; Thompson and Anor v Jedanhay Pty Ltd [2012] QCATA 246 at [28]. 24 Robinson v Corr [2011] QCATA 302 at [7]. 25 Fox v Percy (2003) 214 CLR 118 at 125 – 126. 26 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025. 27 Transcript page 49 lines 46 – 47, page 50 lines 1 – 2. -- 6 of 7 -- 7 2014. Entry under the warrant must be made between the hours of 8.00 am and 6.00 pm. -- 7 of 7 --