Brisbane City Council v Newton

[2015] QCA 69

[2015] QCA 69

COURT OF APPEAL

HOLMES JA

Appeal No 8870 of 2014
QCAT No 152 of 2014

BRISBANE CITY COUNCIL  Applicant

v

CHRISTOPHER GRAEME NEWTON  Respondent

BRISBANE

FRIDAY, 24 APRIL 2015

JUDGMENT

HOLMES JA: The Brisbane City Council has brought an application for security for costs under r 670 of the Uniform Civil Procedure Rules against Mr Newton, the applicant in the primary application. Mr Newton did not appear today but filed submissions on which he wishes to rely. His application is for leave to appeal against a decision of the Appeal Division of the Queensland Civil and Administrative Tribunal which confirmed a Tribunal decision to terminate a residential tenancy agreement between the parties and to issue a warrant of possession. An appeal to this court from a decision of that kind lies only by leave and on a question of law, pursuant to s 150 of the Queensland Civil and Administrative Tribunal Act.

Mr Newton’s draft notice of appeal to this court gives as its ground the Queensland Civil and Administrative Tribunal’s lack of jurisdiction.  From his submissions it appears that he argues that the premises in question were not correctly characterised as residential premises, so that the arrangement between him and the Council was not a residential tenancy agreement falling within the Tribunal’s jurisdiction.  Residential premises under the Residential Tenancies and Rooming Accommodation Act 2008 are:

“Premises used or intended to be used as a place of residence or mainly as a residence.”

A residential tenancy is a right to occupy such premises.  Mr Newton asserts that there was evidence before the Queensland Civil and Administrative Tribunal that the premises in question were a farm of which the residential component was, as he puts it, a minor portion.

The Tribunal Member who heard the appeal noted that the original lease of the premises was in the form of a general tenancy agreement under the Act, with the tenants Mr Newton and a company, Face to Face Foundation Proprietary Limited.  The premises were “a five acre property … includ[ing] a house, a large shed and a number of small horse sheds”.  After the agreement’s expiry in February 2013, Mr Newton and the company were monthly tenants on a holding over.  In October 2013 they were given a notice to leave without grounds, with which they did not comply.

According to the Appeal Tribunal Member, Mr Newton argued that there was no tenancy within the meaning of the Act, the tenancy being “void”, a “simple lease” or a “commercial/industrial” lease.  On the other hand, he also asserted in his material that 12 people would be made homeless were they to be evicted.  The Appeal Tribunal Member said that it was clear that the premise in question were a residence occupied under a residential tenancy agreement.  The Adjudicator who had constituted the Tribunal at first instance was right to find that nothing had been identified to raise a challenge to the termination application.

In his submissions here, Mr Newton relies on the fact that s 29(2) of the Residential Tenancies and Rooming Accommodation Act says that the Act does not apply to all residential tenancy agreements.  However, he does not identify any specific section which would exempt this tenancy from the operation of the Act, were it otherwise to be a residential tenancy agreement.  He makes various arguments about whether premises with a minor residential component can be regarded as falling within the definition of residential premises in the Act and seems to assert broadly that a farm cannot be let under a residential tenancy agreement while farming activities continue on it.  That cannot be correct as an absolute proposition, although it may be a mixed question of fact and law in each case whether, on the evidence, the property meets the definition.

I do not, as far as I understand, have before me the entirety of the evidence before the Queensland Civil and Administrative Tribunal, but as I have noted, there are the observations in the Appeal Tribunal Member’s decision that the premises were a five acre property with a house and sheds, and I have been taken to evidence relied on in the Tribunal which indicates that a number of people resided at the premises.  Indeed Mr Newton’s own couching of the question in terms of whether the residential component was a minor portion of the farm in itself suggests that there really is a question of fact involved.  Thus the finding, at both levels of the Tribunal, that the property was a residence seems at least open, so as to be a question of fact not appellable here.

I do not really need to reach any firm conclusion on that argument.  What is probably more to the point is that Mr Newton’s prospects of convincing the court that he should receive leave to appeal do not seem strong.  He puts the issue as one of the jurisdiction of the Tribunal.  That is true only in the sense that if the tenancy did not fall within the statutory definition, the Tribunal would lack jurisdiction and the correct venue for resolution of the dispute would be elsewhere.  But the issue of the nature of the premises would appear, at best, to be a question of degree as to whether the property was residential or not, and involves no proposition of general application.  It cannot be said that there is any question of public importance involved, and in circumstances where Mr Newton as long since left the property and has no identified claim to possession of it, the utility of granting leave is not obvious.

I should say that Mr Newton did also mention in his application for leave a claim that the Council had committed the tort of intentional interference with contractual relations.  The Appeal Tribunal Member referred to a dearth of particulars and evidence in that regard, and certainly no question of law has previously been identified in relation to it.  Mr Newton does not mention it in his submissions here, so I think it does not have any large part to play in consideration of the prospects of success of his application.

The Brisbane City Council relies on four affidavits of its solicitor, Ms Green, filed in interlocutory applications in this court, one of them more recently.  She says that Mr Newton is an undischarged bankrupt who owes the Council $42,000 in rental arrears.  The Council has already incurred some $38,000 in legal costs in respect of Mr Newton’s earlier, unsuccessful application in this court for a stay.  It has a costs order in its favour in that regard.  It anticipates that it will incur costs on the standard basis of approximately $25,000 up to and including the hearing of the application for leave to appeal.

Since the application for leave was filed on 19 September 2014, there have already been two interlocutory applications, a stay application and another by the Council to strike out the application for leave to appeal, which was adjourned.  However, no directions or timetable have been issued in the substantive application.  Mr Newton has not filed any material on this application, but says by way of submission that he opposes it; that he works for a charity, the company Face to Face Foundation; that he is a Centrelink carer for a disabled person; that he is financially embarrassed; and that he cannot provide security for costs.

There can be no doubt that Mr Newton is impecunious.  It seems probable that an order for security for costs will have a stifling effect on his application.  There has been some delay in making the application for security, but given that the substantive application has not progressed by being given any timetable or date and that Mr Newton is unrepresented and has incurred no legal costs, there is no obvious prejudice in any delay.  Mr Newton has lost his case at two levels of the Queensland Civil and Administrative Tribunal.  He no longer is in possession of or has any claim to the property and the prospects of his showing a substantial injustice or any important question of law seem slight.  There seems no prospect at all of the Council recovering its costs should his application fail.  In all the circumstances it seems to me that the justice of the case requires an order for security for costs.

...

HOLMES JA:  The applicant on the application for leave to appeal, Christopher Graham Newton, is to give security for the respondent’s costs of and incidental to his application for leave to appeal in an amount of $10,000 and in a form acceptable to the Registrar by 4 pm on Friday 15 May 2015.  If such security is not provided, the application is to stand dismissed with costs without further order.  The costs of this application are costs in the cause.