Cummings v Cairns and District Regional Housing Corporation Ltd [2013] QCATA 161

CITATION: Cummings v Cairns and District Regional Housing Corporation Ltd [2013] QCATA 161 PARTIES: Andrea Cummings (Applicant/Appellant) v Cairns and District Regional Housing Corporation Ltd (Respondent) APPLICATION NUMBER: APL089-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 31 May 2013 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – TERMINATION – NOTICE TO LEAVE – RETALIATORY – where the applicant leased the respondent’s premises – where the applicant was given a notice to leave without grounds – where the applicant failed to vacate the premises – where the respondent applied to the Tribunal seeking a termination order for failure to leave – where the applicant filed a counter-application seeking the notice to be set aside – where the applicant contends the notice was retaliatory – where the Tribunal terminated the tenancy and made an order that a warrant of possession be issued – where the applicant seeks to appeal that decision – where applicant contends breach of natural justice – where applicant failed to file counter-application within prescribed timeframe under the Residential Tenancies and Rooming Accommodation Act 2008 – whether there was a breach of natural justice – whether leave to appeal should be -- 1 of 5 -- 2 granted Queensland Civil and Administrative Tribunal Act 2009, s 142 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 291, s 292(3), s 293 Trimble v Babet [2013] QCATA 81, cited 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. REASONS FOR DECISION [1] On 11 April 2011, Andrea Cummings entered into a general tenancy agreement in respect of residential premises at 63 Idalia Street, Mount Sheridan. The tenancy agreement was with the Cairns and District Regional Housing Corporation Ltd (‘the CDRHC’) for a fixed term, ending on 11 October 2011. [2] After the fixed term ended, the tenancy agreement continued on the basis Ms Cummings was holding over under a periodic agreement.1 [3] A Notice to Leave without grounds, dated 4 September 2012, was given to Ms Cummings requiring vacant possession of the premises on or before midnight on 13 November 2012 (‘the handover day’).2 [4] Following Ms Cummings failure to vacate the premises on the handover day, the CDRHC commenced proceedings in the Minor Civil Dispute jurisdiction of the Tribunal seeking a termination order for failure to leave pursuant to s 293 of the RTRA Act and the fee paid to file its application. [5] Since the claim was filed as an urgent application the CDRHC was not required to make a dispute resolution request under s 402 of the RTRA Act before applying to the Tribunal to decide the matter.3 [6] On 27 November 2012, the application was heard by a Magistrate, sitting as a Member of the Tribunal. The learned Magistrate held that while the CDRHC was entitled to an order for termination on that day, the matter would be adjourned until 4 January 2013 to give Ms Cummings time to 1 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 70(2)(b) (‘RTRA Act’). 2 The Notice to Leave was compliant with s 329(2)(j) of the RTRA Act which provides that the handover day must not be earlier than 2 months if the notice is given for a periodic agreement. 3 RTRA Act s 416(2). -- 2 of 5 -- 3 arrange alternative accommodation. At that time, the learned Magistrate stated the tenancy ‘ought to be terminated.’ [7] On 3 January 2013, Ms Cummings wrote to the Tribunal requesting that the hearing of the application be adjourned for two weeks so she might seek legal advice. On 4 January 2013, there was no appearance by the CDRHC and the learned Magistrate hearing the matter adjourned the application to 1 February 2013. [8] On 31 January 2013, Ms Cummings filed a counter-application seeking an order from the Tribunal that the Notice to Leave without grounds be set aside because it was given in retaliation of an ‘ongoing tenancy dispute’. [9] Section 291 of the RTRA Act is, on its face, intended to protect tenants against unfair retaliatory action by lessors or their agents. It provides that a lessor may give a Notice to Leave without stating a ground, but cannot do so simply because the tenant has brought proceedings under the legislation, complained to a government entity about an act or omission of the landlord, taken some other action to enforce the tenant’s rights, or because some order has already been made. Under s 291(3) the lessor ‘…may not give a Notice to Leave under this section if the giving of the notice constitutes taking retaliatory action against the tenant.’ [10] On 1 February 2013, a different Magistrate, sitting as a Tribunal Member, held that the comments made by the learned Magistrate on 27 November 2012 that the tenancy ‘ought to be terminated’ was not a final order and the matter was still ongoing.4 He further held that the matter ought to be adjourned for a half-day hearing on 19 February 2013 in order to give Ms Cummings time to prepare the evidence she wished to produce in support of her claim that the Notice to Leave was retaliatory.5 [11] The matter was heard and decided by a Magistrate on 19 February 2013. The learned Magistrate held that the Notice to Leave without grounds was not retaliatory; Ms Cummings had failed to leave in compliance with the notice; the CDRHC was entitled to an order terminating the tenancy as from midnight on 12 March 2013 on the grounds of failure to leave; and an order that a warrant for possession be issued and remain in effect for 14 days after the tenancy ended. [12] Ms Cummings seeks to appeal that decision. Under s 142(3)(a)(i) of the QCAT Act, she must first obtain leave to appeal. [13] The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?6 Is there a reasonable prospect that the applicant will obtain substantive relief?7 Is leave 4 Audio of Proceedings (Cairns and District Regional Housing Corporation Ltd v Cummings, MCD543-12, 1 February 2013) 3:30. 5 Ibid 4:40. 6 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 7 Cachia v Grech [2009] NSWCA 232 at 2. -- 3 of 5 -- 4 necessary to correct a substantial injustice to the applicant caused by some error?8 Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?9 [14] Her grounds for leave, and in support of her appeal, raise a question of law: Ms Cummings argues, in essence, that she has been denied natural justice. [15] First she submits that the learned Magistrate was biased towards the CDRHC – and, by inference, against Ms Cummings. Secondly, it is submitted that the learned Magistrate wrongly failed to take into account the detrimental effect which the order would have on her family. Thirdly, Ms Cummings contends she was denied the opportunity to produce evidence which was relevant to proving her claim that the Notice to Leave without grounds was retaliatory. [16] The proceedings before the learned Magistrate were recorded and I have listened to that recording. The recording does not support these arguments and, indeed, shows that they cannot be made out. [17] Ms Cummings’ assertion of bias, in particular pre-judgment, is not supported by the recording. It is true the learned Magistrate conducted the hearing by, for the most part, questioning Ms Cummings. However, the learned Magistrate had a good reason to adopt that approach: this was a relatively simple case with only one central issue – whether or not the Notice to Leave was valid. [18] The recording makes it clear that the learned Magistrate took care to receive evidence from Ms Cummings and to ensure she understood the circumstances where a lessor must not give a Notice to Leave without grounds under s 291. He then gave short but careful reasons addressing each of his findings. There was no demonstrated or discernable appearance of bias in the learned Magistrate’s decision and there is, in my view, no substance in this ground. [19] It is unnecessary to consider Ms Cummings other grounds since each relates directly to her counter-application which, for reasons that follow, the Tribunal did not have jurisdiction to consider. [20] The RTRA Act is prescriptive in its requirements about issuing notices, and commencing proceedings.10 [21] Section 292 of the RTRA Act provides that where a tenant reasonably believes a Notice to Leave without grounds is given in contravention of s 291 (i.e. the giving of the notice constitutes taking retaliatory action against the tenant) the tenant may apply to the Tribunal for an order to set 8 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 9 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. 10 Trimble v Babet [2013] QCATA 81 at [25]. -- 4 of 5 -- 5 aside the notice. However, the application must be made within 4 weeks after the notice was given (i.e. 2 October 2012).11 Ms Cummings did not take that step within that time. [22] Her failure to apply to the Tribunal before 2 October 2012 means the application she did file on 31 January 2013 was long out of time. Ms Cummings did not produce any evidence in support of her allegations that the CDRHC’s conduct was ‘retaliatory’. She did seek an adjournment to attempt to produce further evidence in this respect but, in light of the number of earlier hearings and the earlier adjournment for that very purpose (see paragraph [10] above), the learned Magistrate’s decision to refuse her further time was fair, and reasonable. [23] For the sake of completeness, nothing in these circumstances warranted consideration of an order under s 61 of the QCAT Act – i.e., extending time for her application from 2 October 2012 to 31 January 2013. [24] The only relevant matter for the learned Magistrate to have considered was whether the Notice to Leave was valid, which he did. [25] Notwithstanding the consideration of Ms Cummings counter-application, which he dismissed, I have found no error in the learned Magistrate’s application of the law. There is no question of importance about which a further argument and a decision of the Appeal Tribunal would be of public advantage. [26] It follows that, as none of Ms Cummings’ grounds are made out, leave to appeal must be refused. 11 RTRA Act s 292(3). -- 5 of 5 --