Dawes v Foster

[2010] QCATA 115

CITATION: Dawes v Foster [2010] QCATA 115

PARTIES:	Mrs Odette Michelle Dawes Mr Peter Keith Dawes (Applicant/Appellant)
v
Mr Michael Foster (Respondent)

APPLICATION NUMBER:            APL255-10               

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON:   20 December 2010

DELIVERED AT:   Brisbane

ORDERS MADE:       Leave to appeal is refused

CATCHWORDS : 

 Residential tenancy matter; termination order for failure to pay rent; no error of law or fact.

Queensland Civil and Administrative Tribunal Act 2009 section 143

APPEARANCES and REPRESENTATION:

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. Oddette & Peter Dawes were tenants at premises owned by Michael Foster at 1020 Beenleigh Redland Bay Road, Carbrook pursuant to a residential tenancy agreement. Although the agreement has not been produced, this is not contested. 

1. On 10 August 2010 Mr Foster filed an application in QCAT for an order terminating the tenancy due to the applicant’s failure to pay rent.  At the time the application was brought, there was $5,000.00 owing in arrears of rent.  There was a $1,960.00 bond lodged with the Residential Tenancies Authority. 

1. The application came on for hearing before a QCAT Adjudicator on 25 August 2010 who ordered that the Dawes pay to Mr Foster the sum of $2,940.00 by 3 September 2010.  The application for the termination order was adjourned to another day.

1. On 22 September 2010 the application was again brought on for hearing and the learned Adjudicator made directions for the lessor to inspect the property and attend to some maintenance and defects.  The application to terminate was further adjourned to 4 October 2010. 

1. On 4 October 2010 the application for termination came on for hearing before the Adjudicator.  The Dawes were represented by Ms Joanne Allfrey.  Mr Foster advised the Tribunal that there were still arrears of rent outstanding with the last rent being paid approximately 2 months prior to the hearing.  Although the arrears of rent ordered to be paid on 25 August 2010 had been paid no additional rent had been paid and when asked how much was outstanding, Mr Foster told the Adjudicator about 3 months[1].  The weekly rent was $490.00 per week. 

[1]           Transcript of evidence page 2 line 10

1. Ms Allfrey attempted to explain that there had been rent payments but her evidence concerning that is a little confusing but it seems $3,280.00 had been paid from 28 August 2010 which means that the applicants were still in arrears.  The learned Adjudicator was satisfied that the rent was still in arrears and the applicants had not remedied the Notice to Remedy Breach that was served on them, although a copy was not produced to the Tribunal.  This was not contested by the Dawes.  As a consequence of those findings, he made the following order:-

“that the residential tenancy agreement between the parties is terminated in respect of the property at 1020 Beenleigh/Redland Bay Road, Carbrook on the grounds of breach of the Tribunal order dated 25 August.”

1. It is from that decision that the Dawes now seek leave to appeal by the application filed in QCAT on 15 October 2010.  Leave is necessary.[2]  The grounds of appeal set out in that application make no attempt to identify any error on the part of the Adjudicator in the decision that was made.  Those grounds are as follows:-

   [2] Queensland Civil and Administrative Act 2009, section 143(3)(a)(i)

-   “New evidence from counsel to say why I was stuck home on 3^rd of Sep’10

-   No where else to go

-   Have all rent monies here

-   Found $500 missing through wire transfer

-   Have child with disability needs stable accommodation

-   I will fix small maintenance on house myself”

1. My sole duty is to determine whether there is an error in the primary decision. It is not my task to decide where the truth lay as between the competing versions given by the parties.[3]

[3]           Fox v Percy [2003] HCA 22 at [32] per Gleeson CJ, Gummow and Kirby JJ.

1. 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?[4] Is there a reasonable prospect that the applicant will obtain substantive relief?[5] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[6]  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?[7]

[4]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[5]        Cachia v Grech [2009] NSWCA 232 at [13].

[6]        QUYD Pty Ltd v Marvass Pty Ltd (supra).

[7]        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.

1. Ms Dawes has chosen not to file any submissions in support of her application.  I am then left with the grounds of appeal and the transcript of evidence.  There seems little doubt that the applicant has not remedied any breach for arrears for rental and in fact concedes that there was outstanding rent at the time of the decision on 4 October 2010.  This is also confirmed in the application for leave to appeal insofar as she makes reference to $500.00 missing through a wire transfer.  Even though she may have all of the rent monies to pay the outstanding balance it is not a ground to found error in the learned Adjudicators decision. 

1. All of the other matters relied upon in the application do not go to any error of law or fact on the part of the learned Adjudicator.

1. No error has been demonstrated, and none is apparent, therefore leave to appeal is refused.