Currey v Pulik [2014] QCATA 160

CITATION: Currey v Pulik [2014] QCATA 160 PARTIES: Brent Clifford Currey (aka Brett Clifford Currey) (Applicant/Appellant) v Stefan Frank Pulik (Respondent) APPLICATION NUMBER: APL033-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 2 July 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where tenancy terminated for unpaid rent – where tenant conceded rent unpaid – whether tribunal correctly exercised discretion to terminate tenancy – whether grounds for leave to appeal Pickering v McArthur [2005] QCA 294 Webster v Smith [2012] QCATA 163 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] Mr Currey rented Mr Pulik’s pool house. He signed a tenancy agreement by which he agreed to pay $360 per week rent. He fell behind in his rent so Mr Pulik filed an application to terminate the tenancy. On 16 January 2014, the tribunal issued a termination order. [2] Mr Currey wants to appeal that decision. He says he only received notice of the hearing the night before and did not have time to put his case in -- 1 of 3 -- 2 writing. He says Mr Pulik did not have Council approval to rent the pool house. He says that Council officers are reviewing building faults. He said there was a hearing in relation to compensation issues pending in the tribunal that would resolve the issue of rent owing. [3] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur1: There are numerous authorities, 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 error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error. [4] The dispute first came before the tribunal on 15 January 2014. Mr Currey told the learned Adjudicator he only received the notice the night before and he asked for an adjournment. Mr Currey conceded that he owed Mr Pulik rent. The only issue, so far as the learned Adjudicator was concerned, was the amount of rent due. She adjourned the hearing to 16 January so that Mr Currey could reconcile his rent payments2. The learned Adjudicator clearly outlined to Mr Currey the limits of her discretion if he was in breach of the tenancy agreement. [5] On 16 January 2014, Mr Currey told the learned Adjudicator he agreed with Mr Pulik’s summary of rent payments3. The learned Adjudicator told Mr Currey that Mr Pulik had complied with the procedure required for a valid termination. She then told Mr Currey she was compelled to terminate the tenancy unless he could say something to change her mind4. [6] Mr Currey referred the learned Adjudicator to a compensation hearing listed for 29 January 2014. The learned Adjudicator observed that the compensation hearing was on Mr Pulik’s application, not Mr Currey’s. [7] The learned Adjudicator gave Mr Currey a short adjournment so that he could put his case. Despite his submissions that he was entitled to compensation, Mr Currey did not place any material before the learned Adjudicator. There is nothing on the file to suggest that a longer adjournment would have assisted Mr Currey. Indeed, the transcript of 15 January suggests that there was a long running dispute between the parties5. The file also shows that Mr Currey sought the assistance of the 1 [2005] QCA 294 at [3]. 2 Transcript 15 January 2014 page 1-18, lines 32 – 34. 3 Transcript 16 January 2014 page 1-3, line 7. 4 Transcript 16 January 2014 page 1-3, lines 35 – 37. 5 See page 1-6, lines 17 – 24. -- 2 of 3 -- 3 Residential Tenancies Authority but, when it issued the notice of unresolved dispute6, he did nothing more. [8] Mr Currey may have been disadvantaged in the presentation of his case. But the short notice, or any action of the learned Adjudicator, did not cause that disadvantage. The short notice is not a ground for leave to appeal. [9] Mr Currey told the learned Adjudicator that the pool house lacked necessary approvals. The learned Adjudicator told him this was a problem for the Council, and it might result in fines and penalties to Mr Pulik, but it did not affect Mr Currey’s obligation to pay rent. That approach is consistent with the tribunal’s published position7 that the right to occupy premises incurs a corresponding obligation to pay rent. The learned Adjudicator was not in error. [10] For similar reasons, Mr Currey’s assertion that Council officers were investigating building faults does not mean that he did not have to pay rent. As the learned Adjudicator observed, unless and until he filed an application for compensation and that application was determined, Mr Currey should have continued to pay rent. [11] The evidence supports the learned Adjudicator’s decision. There is nothing in the transcript to persuade me that she 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. 6 Transcript 15 January 2014 page 1-8, line 20. 7 See Webster v Smith [2012] QCATA 163 at [30] to [31]. -- 3 of 3 --