Addo v Cairns and District Regional Housing Corporation [2014] QCATA 179

CITATION: Addo v Cairns and District Regional Housing Corporation [2014] QCATA 179 PARTIES: Sarah Addo (Applicant/Appellant) v Cairns and District Regional Housing Corporation (Respondent) APPLICATION NUMBERS: APL282 -13 APL390 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Thomas, President DELIVERED ON: 15 July 2014 DELIVERED AT: Brisbane ORDER MADE: The applications for leave to appeal are refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – TERMINATION OF TENANCY – where respondent gave applicant notice to leave for breach – whether notice retaliatory – whether Magistrate found grounds for termination and issued warrant of possession – whether applicant denied natural justice – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(e), s 29(1), s 32, s 142(3)(a)(i) Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 291, s 292 Chambers v Jobling (1986) 7 NSWLR 1, cited Dearman v Dearman (1908) 7 CLR 549, cited Fox v Percy (2003) 214 CLR 118, cited Pickering v McArthur [2005] QCA 24, applied -- 1 of 4 -- 2 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] Ms Addo was a tenant of Cairns and District Regional Housing Corporation. The Corporation issued a notice to remedy breach on 23 April 2013, stating that Ms Addo had damaged the property and made extensive unauthorised extensions. On 22 May 2013, the Corporation issued a notice to leave. When Ms Addo had not left on 18 June 2013, the Corporation applied for a termination order. [2] A Magistrate, sitting as an ordinary member of the tribunal, terminated the tenancy on 3 July 2013 and issued a warrant of possession. Ms Addo appealed that decision and applied for a stay of the warrant. On 26 July 2013, the appeals tribunal refused the stay. For some reason, the dispute was re-listed before a Magistrate for hearing on 4 September 2013. Again, the tribunal terminated the tenancy and issued a warrant. Ms Addo has also appealed that decision. [3] Ms Addo says that: 1. The tribunal failed to consider her submissions and evidence properly. 2. The learned Magistrate failed to consider whether the notice to leave was retaliatory. 3. The learned Magistrate did not observe the rules of natural justice because she did not have time to present her case or disclose all her evidence and the hearing was “rushed”. 4. The learned Magistrate breached sections 28(3)(e) and 29(1) of the QCAT Act. She says that the learned Magistrate failed to consider sections 291 and 292 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) and, that he failed to provide adequate reasons for his decision. [4] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 The principles the appeal tribunal applies when considering an application for leave to appeal are derived from numerous authorities, which state in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by 1 QCAT Act s 142(3)(a)(i). -- 2 of 4 -- 3 error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [5] Sections 291 and 292 of the Residential Tenancies and Rooming Accommodation Act, which deal with retaliatory action, apply only when the lessor serves a notice to leave without grounds. In this case, the Corporation served a notice to leave with grounds. Therefore, the sections have no application. [6] This dispute was first listed for hearing on 24 June 2013. The learned Magistrate adjourned the hearing to 3 July, making directions for the filing of further material. On 3 July 2013, the hearing ran for over an hour and a half. Over half of the transcript is devoted to submissions by, or discussion with, Ms Addo. [7] On 4 September 2013, the same Magistrate conducted a hearing on the Corporation’s application for reissue of warrant of possession. The hearing was, understandably, short; the Magistrate noting that the matter had already been heard substantially on 3 July 2013.3 Ms Addo’s submission occupied nearly all of the learned Magistrate’s time that day. [8] The minor civil disputes jurisdiction is a busy one. The Corporation’s application for reissue of warrant of possession followed this appeal tribunal’s decision to refuse Ms Addo’s stay application on 26 July 2013. Such a warrant is only able to be exercised 14 days after it is issued. Ms Addo asked that the hearing be adjourned because she hadn’t had a chance to look at the application, and needed to seek legal advice. The Magistrate attempted, as best he could, to explain to Ms Addo that they were not conducting a full hearing, as had been done on 3 July 2013.4 He refused Ms Addo’s application to adjourn the hearing, on the basis that she was not prejudiced, and that some of the circumstances that brought about the initial application for termination and warrant of possession had not changed.5 [9] I am satisfied that the learned Magistrate gave Ms Addo sufficient opportunity to present her case, there was no lack of natural justice and Ms Addo was not disadvantaged by the process. The learned Magistrate provided written reasons for his decision on the Corporation’s initial application in over four closely typed pages. The reasons are detailed and sufficient to explain the learned Magistrate’s reasoning to Ms Addo. [10] The appeal tribunal will not usually disturb findings of fact on appeal if it considers the conclusions of the decision maker below were able to be made on the evidence before them,6 however may interfere if the 2 [2005] QCA 294 at [3]. 3 Transcript page 2, lines 1 -2. 4 Transcript page 6, line 29 – page 7, line 13. 5 Transcript page 4, lines 41-42. 6 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. -- 3 of 4 -- 4 conclusion is ‘contrary to compelling inferences’ in the case.7 The learned Magistrate considered each of Ms Addo’s submissions. The evidence can support his findings and I can find no compelling reason to come to a different view. [11] Ms Addo’s submissions in support of her appeal from the Magistrate’s decision to reissue the warrant of possession also claimed that the Magistrate erred in allowing the matter to proceed in contravention of section 49 of the QCAT Act. That submission ignores the application of that provision, which is limited to situations where the tribunal has ordered a proceeding, or part of, be dismissed or struck out under section 47 or 48. Those provisions do not apply in this situation. There is nothing in that ground. [12] There is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal should be refused. 7 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 4 of 4 --