Bulgarelli v Real Estate Buyers.com Pty Ltd [2011] QCATA 90

CITATION: Bulgarelli v Real Estate Buyers.com Pty Ltd [2011] QCATA 90 PARTIES: Michael Bulgarelli (Applicant/Appellant) v Real Estate Buyers.com Pty Ltd (Respondent) APPLICATION NUMBER: APL084-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 11 April 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. 2. The warrant for possession is to take effect from 18 April 2011. CATCHWORDS: Minor Civil Dispute – where lessor entitled to termination order for non remedy of breach – where discretion to make order – whether discretion miscarried Queensland Civil and Administrative Tribunal Act 2009, s 142(3) Residential Tenancy and Rooming Accommodation Act 2008, s 137 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 House v R (1936) 55 CLR 499 -- 1 of 3 -- 2 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Mr Bulgarelli is a tenant in a house at 36 Todd St Taringa managed by the respondent. He has resided there for the past 10 years. As a result of falling behind with the rent the respondent issued him with a Notice to Remedy Breach pursuant to the Residential Tenancies and Rooming Accommodation Act 2008 (“the Act”) on 10 January 2011. [2] Mr Bulgarelli failed to remedy the breach and as a consequence the respondent filed an application for a minor civil dispute – residential tenancy matter in the Tribunal on 15 February 2011. [3] The application came on for hearing on 8 March 2011 and a Tribunal Member made a termination order with a warrant to issue for possession of the premises as he was entitled to do given that the breach was not remedied. [4] Mr Bulgarelli then filed an application for leave to appeal and appeal. Leave to appeal is necessary as this is an appeal from a minor civil dispute.1 He also applied for a stay of the Tribunal’s order made on 8 March 2011. The stay was granted pending the determination of the application for leave to appeal. [5] 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?2 Is there a reasonable prospect that the applicant will obtain substantive relief?3 Is leave necessary to correct a substantial injustice to the applicant caused by some error?4 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?5 [6] The parties have filed submissions in accordance with the directions made on 1 April 2011 and the transcript is now available. [7] The Tribunal has a discretion whether to make a termination order even though the breach has not been remedied. In deciding whether the breach justifies the making of a termination order regard is had to section 337(3) of the Act which sets out some of the things the Tribunal may have regard to. These include whether the breach was recurrent, whether there is any detriment caused to the lessor and whether the lessor has acted reasonably. The Tribunal can also take other matters into account it 1 QCAT Act, s 142(3). 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232 at [13]. 4 QUYD Pty Ltd v Marvass Pty Ltd (supra). 5 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. -- 2 of 3 -- 3 considers appropriate such as, here, the personal circumstances of the applicant. [8] Therefore, as the respondent had an entitlement to the order made the only basis upon which leave to appeal could be granted is if the learned Tribunal Member’s exercise of discretion under section 337(3) miscarried. That does not mean that had this Appeal Tribunal been in the position of the learned Member it would have come to a different conclusion. Mr Bulgarelli must identify some error on the part of the learned adjudicator or some error must be apparent from a perusal of the material before him or his reasoning.6 [9] Here the transcript reveals that the learned Member did give consideration to the history of the tenancy, the fact that there had been multiple breaches which have been confirmed in the submissions filed by the respondent in the appeal. He also took into account the personal circumstances of the applicant. He took into account the matters prescribed by section 337(3) of the Act. It cannot therefore be said that his discretion miscarried. [10] The residential tenancy agreement is a contract between the tenant and the lessor. Both have obligations under the contract as well as those imposed by the Act. Those obligations cannot be lightly ignored, as Mr Bulgarelli has done on numerous occasions during the tenancy. The lessor is entitled to terminate the tenancy, with the assistance of the Tribunal if need be when the rent is not being paid in accordance with the agreement. [11] Mr Bulgarelli has not been able to identify any error on the part of the original decision-maker nor is any error apparent. As a consequence leave to appeal must be refused. By reason of this decision the stay is set aside. The warrant for possession will now take effect from 18 April 2011. 6 House v R (1936) 55 CLR 499. -- 3 of 3 --