Christopher Stringer v GL Property Group Pty Ltd and Orange Cake Pty Ltd

[2023] QCA 192

[2023] QCA 192

COURT OF APPEAL

MULLINS P

Appeal No 11877 of 2023
QCATA No 277 of 2023

CHRISTOPHER STRINGER  Applicant

v

GL PROPERTY GROUP PTY LTD  First Respondent
ACN 655 597 649
TRADING AS ILOOKPROPERTY

ORANGE CAKE PTY LTD  Second Respondent
ACN 604 984 456

BRISBANE

MONDAY, 25 SEPTEMBER 2023

JUDGMENT

MULLINS P:  The order I make is application for an order staying orders 1, 2 and 3 of the QCAT appeal tribunal made on 11 September 2023 is refused.

Mr Stringer has been the tenant of a property that is owned by the second respondent, Orange Cake Pty Ltd, and managed by the first respondent, ILookProperty Brisbane.

The material shows that Mr Stringer was the party to a fixed term tenancy agreement that was due to expire on 27 June 2023.  By notice to leave, dated 20 March 2023, the first respondent, as the agent for the lessor, gave notice to Mr Stringer and another person identified in the tenancy agreement as the tenant to vacate the property by midnight on 27 June 2023.

On 28 June 2023, when the tenants had not vacated, the second respondent applied to QCAT for a termination order.  That order was granted on 9 August 2023, and a warrant of possession was ordered to be issued.  Mr Stringer then applied for a stay of the decision, and an interim order staying the execution of the warrant was made on 30 August 2023.

The matter came before Member Lember for an on-the-papers hearing on 11 September 2023.  There were two applications before Member Lember:  Mr Stringer’s application for leave to appeal or appeal filed on 25 August 2023 and an application to stay the decision filed on 25 August 2023.

Member Lember made a number of orders, but orders 1, 2 and 3 are relevant to today’s application.  They were (1) the application to stay a decision filed on 25 August 2023 is refused, (2) the interim order dated 30 August 2023 is vacated, (3) the warrant of possession made on 9 August 2023 is reissued to take effect on 14 September 2023.  There was also a fourth order made that I will recite because it explains the timing of this application.  The fourth order is that:

“The Warrant of Possession shall remain in effect for 14 days to expire at 6:00pm on 27 September 2023.”

That is why the application that has been made by Mr Stringer in connection with his application for leave to appeal against Member Lember’s orders and was listed for hearing today urgently on 25 September 2023 with the registry giving email notice to the first and second respondents so that they could have an opportunity to appear.  They do and oppose the relief that is sought by Mr Stringer which, in lay terms, was expressed by him as cancelling the warrant of possession which I have interpreted as seeking an order for a stay in conjunction with the application for leave to appeal against Member Lember’s decision.

The first issue that had to be considered on this application was whether there was jurisdiction in the Court of Appeal to entertain the stay application. The Court of Appeal’s statutory jurisdiction in relation to appeals from QCAT or the QCAT appeal tribunal is regulated by division 2 of part 8 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Section 149 of that Act has no application. For this Court to have jurisdiction in relation to an application for leave to appeal against Member Lember’s decision to refuse to stay the decision made by QCAT to issue the termination order and the warrant of possession, the application must fall within section 150.

Under section 150, subsection (1), a person may appeal to the Court of Appeal against a decision of the appeal tribunal to refuse an application for leave to appeal to the appeal tribunal. Member Lember’s decision, so far as refusing a stay, does not fall within subsection (1) of section 150 of the QCAT Act. I therefore do not consider that this Court has jurisdiction under the QCAT Act to consider an application to stay Member Lember’s decision to refuse a stay.

That is primarily the basis on which I have decided the application today, and that is want of jurisdiction.  If I were wrong on the question of jurisdiction, I would not be disposed to exercise the discretion in favour of Mr Stringer to obtain the stay he is seeking, which amounts, in effect, to injunctive relief on an interlocutory or even an interim basis.  There is no offer by Mr Stringer to give an undertaking to pay any losses suffered by the second respondent as a result of the grant of such a stay and no material before the Court to show that, even if an undertaking were offered, Mr Stringer has the financial capacity to meet that undertaking.

It is apparent from Mr Stringer’s material that he has a number of complaints against the second respondent which he would be wise to seek advice about whether he has a worthwhile claim to pursue against the second respondent that would amount to a claim for damages.  The existence of such a claim does not alter the position that the termination order was made by QCAT for the purpose of giving effect to the lessor’s rights to terminate or to obtain a termination order in relation to a fixed term lease that had expired and for which the requisite notice to leave had been given on behalf of the second respondent.  If it was therefore a matter of discretion, I would also not have granted the stay that Mr Stringer is seeking today.

That means that Mr Stringer’s application for leave to appeal against Member Lember’s orders otherwise remains on foot, although in light of the reasons I have given, Mr Stringer may be wise to seek advice as to whether there is, in fact, any sustainable application for which this Court has jurisdiction in view of the fact that Member Lember gave directions in relation to the application for leave to appeal to the QCAT appeal tribunal and did not make a final decision in relation to that application.

…

Costs reserved.  We will adjourn.