Culos v McKillop

[2014] QCATA 167

CITATION: Culos v McKillop [2014] QCATA 167

PARTIES:	Maggie Culos (Applicant/Appellant)
v
Ian Dunlop McKillop Robyn Edith McKillop (Respondents)

APPLICATION NUMBER: APL194-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe, OAM

DELIVERED ON: 7 July 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Application to stay the decision of 24 April 2014 refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where tenant in breach – where notice to remedy breach – where breach not remedied – where notice to leave – where tribunal terminated tenancy for failure to leave – where application for lave to appeal – where application to stay decision – whether grounds for stay

Chief Executive Officer, Department for Child Protection v S (2007) 98 ALD 329
Kostopoulos v G E Commercial Finance Australia Pty Ltd [2005] QCA 311
Croney v Nand [1999] 2 Qd R 342
Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453
Big4 Brisbane Northside Caravan Village v Schliebs[2012] QCAT 277

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. Ms Culos was a tenant in a property owned by Mr and Ms McKillop. Ms Culos was behind in her rent.  The lessors sent a notice to remedy breach.  Ms Culos did not remedy the beach.  The lessors sent a notice to leave.  Ms Culos did not leave.  On 24 April 2014, the tribunal terminated the tenancy.

2. Ms Culos filed an application for leave to appeal and an application to stay the tribunal’s decision.

3. The question of whether a stay of the original decision should be granted is usually addressed according to established principles: Is it an appropriate case to grant a stay?[1]  Does the applicant have an arguable case on appeal?[2]  Would a refusal of a stay render the appeal nugatory?[3]  Does the balance of convenience favour granting the stay?[4]

   [1]Croney v Nand [1999] 2 Qd R 342 at 348.

   [2]Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 at 455.

   [3]        Chief Executive Officer, Department for Child Protection v S (2007) 98 ALD 329 at 331.

   [4]        Kostopoulos v G E Commercial Finance Australia Pty Ltd [2005] QCA 311.

4. It is true that a refusal of the stay will render the appeal nugatory, as Ms Culos will already have vacated the tenancy.  However, Ms Culos’ tenancy expired on 1 May 2014 and she has been a periodic tenant since then.  Even if the appeal was successful, the lessor could issue fresh notices to leave – without grounds – and Ms Culos would no longer be a tenant in any event.

5. The court or tribunal will not, in an application for a stay arising in a proposed appeal, estimate the applicant’s chances of success, but it can assess whether the applicant has an arguable case.

6. Ms Culos’ application for leave to appeal covers the same ground as her submissions to the tribunal below. She complains about the agent’s behaviour but those are not matters that affect her liability to pay rent.  Ms Culos admitted to the learned Adjudicator that she had not remedied the breach in full.  Although her submissions on appeal attempt to deal with that point, Ms Culos is left with the position that she has not remedied the breach unless the tribunal considers her claim for compensation. The tribunal has no jurisdiction to do this on an urgent application for termination[5].  Accordingly, Ms Culos has poor prospects on appeal.

   [5]See Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277.

7. The application for a stay of the decision of 24 April 2014 should be refused.