Culos v McKillop [2014] QCATA 216

CITATION: Culos v McKillop [2014] QCATA 216 PARTIES: Maggie Culos (Applicant/Appellant) v Robyn Edith McKillop (Respondent) APPLICATION NUMBER: APL194 -14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 4 August 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where tenant in arrears – where notice to remedy breach – where tenant still in arrears – where notice to leave – where tenant still in arrears – where tenant argues lessor breaches on appeal - whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 337 Dearman v Dearman (1908) 7 CLR 549 House v The King (1936) 55 CLR 499 Lovell v Lovell (1950) 81 CLR 513 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Chambers v Jobling (1986) 7 NSWLR 1 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). -- 1 of 4 -- 2 REASONS FOR DECISION [1] Ms Culos was behind in her rent. She received a Form 11 notice to remedy breach. She made some payment but was still behind in her rent. She received a notice to leave. At the hearing, Ms Culos was still about $30 behind in her rent. The tribunal terminated the tenancy for failure to leave. [2] Ms Culos wants to appeal that decision. She refers to a number of sections of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) which, she says, were breached by the lessor’s agent. [3] 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 [4] None of the sections Ms Culos refers in her application for leave to appeal was the subject of discussion at the hearing. Ms Culos is not pointing to any error by the learned Adjudicator; she is bringing a completely new case to be determined by the tribunal. That is not the function of an application for leave to appeal. [5] Even if these matters were argued at the hearing, the tribunal had no jurisdiction for most of Ms Culos’ claims. Breaches of ss 88, 89 and 447 of the RTRA Act may result in a penalty, but they do not give the tenant a right to damages and they do not permit a tenant to stop paying rent. Breaches of ss 185, 192 and 193, may give rise to an action for damages but parties must first make a dispute resolution request before bringing the dispute to the tribunal3. There is no evidence that Ms Culos referred her dispute to conciliation. [6] The tribunal did have jurisdiction to consider whether the notice to remedy breach and the notice to leave were properly made. Ms Culos had no evidence about these matters before the learned Adjudicator. [7] Ms Culos has now filed fresh evidence with her application for leave to appeal. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Ms Culos have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?4 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3] per Keane JA. 3 RTRA Act s 416. 4 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. -- 2 of 4 -- 3 [8] I have already noted that an application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Ms Culos has not explained why this material was not available earlier. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator [9] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.5 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.6 [10] The tribunal may terminate a tenancy if the lessor has established the ground of the application and notice to leave, the tenant committed the breach which is the subject of the notice to remedy breach, and the breach justifies the termination7. [11] Ms Culos admitted that she was behind in her rent when the lessor issued the notice to remedy breach8. She admitted that she did not remedy the breach9. The learned Adjudicator was entitled to terminate the tenancy. [12] In deciding whether to terminate a tenancy, the tribunal may have regard to the seriousness of the breach, any steps taken to remedy the breach, whether the breach was recurrent, the detriment to the lessor cause by the breach, whether the lessor acted reasonably, and any other issue it considers appropriate10. The breach was not serious, and Ms Culos had tried to remedy the breach. However, the tenancy was due to expire and there was evidence of repeated breaches. The learned Adjudicator exercise his discretion to terminate the tenancy. [13] The Appeal Tribunal will not interfere with an exercise of discretion unless it can be shown that the learned Adjudicator acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters11. Just because the Appeal Tribunal might have exercised the discretion differently, that is not a basis for changing the decision: it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion12. [14] There is nothing in the transcript to persuade me that the learned Adjudicator exercised his discretion on a wrong principle or was influenced by irrelevant matters or misapplied the exercise of his discretion. There is nothing in the transcript to persuade me that the learned Adjudicator 5 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 6 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 7 RTRA Act s 337. 8 Transcript page 1-7, lines 33-43. 9 Transcript page 1-8, lines 2-32. 10 RTRA Act s337(3). 11 House v The King (1936) 55 CLR 499 at 504. 12 Lovell v Lovell (1950) 81 CLR 513. -- 3 of 4 -- 4 should have taken a different view of the facts. There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused. -- 4 of 4 --