Grace Mazi v Community Housing (Qld) Pty Ltd

[2023] QCA 227

[2023] QCA 227

COURT OF APPEAL

BOWSKILL CJ
DALTON JA
BODDICE JA

Appeal No 9098 of 2023
QCATA No 45 of 2021

GRACE MAZI  Applicant

v

COMMUNITY HOUSING (QLD) PTY LTD  Respondent

BRISBANE

FRIDAY, 17 NOVEMBER 2023

JUDGMENT

BOWSKILL CJ:  The applicant seeks leave to appeal the decision of an appeal tribunal of QCAT, constituted by Member Lember, given on 15 June 2023.  The decision was to refuse leave to appeal two earlier decisions of QCAT made on 18 November 2020 and 22 February 2021, respectively.  The decisions relate to a dispute about a former tenancy arrangement.

Section 150 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) permits a person to appeal to this Court against a decision of the appeal tribunal to refuse an application for leave to appeal only on a question of law and only if the party has obtained the Court’s leave to appeal.

If granted leave, the applicant seeks to challenge the decision of the appeal tribunal on the grounds that the tribunal member erred in:

1. “Failing to take relevant consideration of facts falling within the provision of the NRAS Regulations 2020, in determining that the appellant failed to take steps required to ensure eligibility with the NRAS scheme and thereby breached her lease agreement which fact entitled the respondent to issue a breach notice and notice to leave.

2. Failing to deal with the question whether the applicant can establish the lessor was not entitled to give the notice on the ground it did, by not taking into account all relevant considerations that overlooked, undervalued, and misunderstood the evidence and ignored matters which should have been considered.

3. Failing to identify respondent’s non‑compliance with NRAS Regulations, which was an error that lead to a conclusion that the lessor was entitled to give the notices it did.

4. Making factual findings without any evidence.

5. Making factual findings which were contrary to evidence before it.

6. Making factual findings with evidence that was not before the Tribunal and not provided to the appellant.

7. Making erroneous assessment of damages where it should have been held that the appellant had proved economic and non‑economic damages as a result of the Respondent’s action”.

The applicant seeks orders not only setting aside the decision of the appeal tribunal but also for this Court to deal with her application for compensation.

No question of law has been identified by the applicant in either the original notice of appeal, which the applicant has indicated today she did not seek to rely on, nor in the amended outline of argument which contains the seven grounds I have just referred to.  Rather, it is apparent that the applicant is dissatisfied with the factual conclusions reached by the appeal tribunal and also, perhaps understandably, dissatisfied with the confusion that appears to have surrounded the earlier decisions of the tribunal.  That confusion was contributed to, in part, by the applicant and the respondent.  The appeal tribunal tried to unravel the confusion in dealing with the application for leave to appeal.

The appeal is incompetent as no question of law arises.

In any event, I would refuse leave to appeal on the basis that there is no utility in permitting the proceedings to continue, and it is appropriate that they be brought to an end.  The proceedings relate to a dispute about a tenancy which came to an end more than three years ago, when the applicant vacated the premises in October 2020.  The appeal tribunal found that the notices to remedy breach and then to leave, given by the lessor, were valid; and the applicant did in fact leave the premises.

Given that it was a term of the applicant’s lease that she ensure at all times she was eligible for the National Rental Affordability Scheme (NRAS) program, that the lessor would conduct an annual income review to ensure the tenant remained eligible and that if the tenant loses eligibility, the lessor can give notice to leave (see special condition 12); and that the applicant had failed, on request, to provide the necessary documents to prove her continuing eligibility, there is no basis on which to doubt the correctness of the appeal tribunal’s decision in this regard.

The appeal tribunal also observed that the applicant did not have reasonable prospects of succeeding on her claim for compensation, even if leave to appeal had been given, because the notices of breach and to leave were valid and, in any event, her claim for compensation was unreasonable in the circumstances – in part because her decision to vacate the premises was a disproportionate response to the very small rental increase of  $1.50 per week.  The reasoning in that regard is compelling.

I would refuse leave to appeal.

DALTON JA:  I agree.

BODDICE JA:  I agree.

BOWSKILL CJ:  Accordingly, the orders of the Court are that the application for leave to appeal is refused.