Kalwun Development Corporation Limited v Lindenberg
[2013] QCATA 64
•25 February 2013
| CITATION: | Kalwun Development Corporation Limited v Lindenberg [2013] QCATA 64 |
| PARTIES: | Kalwun Development Corporation Limited (Appellant) |
| V | |
| Therese Lindenberg (Respondent) |
| APPLICATION NUMBER: | APL232 -12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 25 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – residential tenancy – where proceeding reopened – where adjudicator who decided reopening heard application for termination – where the lessor appealed the decision of the tribunal - where the lessor alleged bias – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, s 139(2), s139(4) Lindenberg v Kalwun Development Corporation [2012] QCAT 259 |
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 (QCAT Act)
REASONS FOR DECISION
Ms Lindenberg has been a tenant of a property operated by Kalwun Development Corporation Limited since 2005. Kalwun has been trying to evict Ms Lindenberg since 2006. On 22 June 2012, the learned Adjudicator set aside Kalwun’s latest notice to leave and dismissed its application to terminate the tenancy.
Kalwun has appealed that decision. It says the learned Adjudicator was biased, that she took into account irrelevant considerations, that she did not take into account relevant considerations, she failed to consider the merits of the case and that she exercised her powers in a way that no reasonable person could have exercised that power. It says that the learned Adjudicator did not take into account that Ms Lindenberg was not a member of Kalwun. It says that she did not take into account that Kalwun needs the property to house a needy family. It says that the learned Adjudicator did not take into account that Ms Lindenberg is not a “family in need” and does not hold a current lease.
Because this is an appeal from a minor civil dispute, Kalwun must seek leave to appeal. The Tribunal may grant leave if the dispute raises a question of general importance and the public would benefit from a decision on that question. It may also grant leave if Kalwun shows a reasonably arguable case of error and a reasonable prospect that it will obtain substantive relief if the error is corrected.
Kalwun’s stated grounds for termination was Ms Lindenberg’s failure to pay rent. The evidence at the hearing showed that Ms Lindenberg had paid rent but Kalwun had not credited all relevant payments to her account. Kalwun does not dispute that.
Kalwun says that the learned Adjudicator should have terminated the lease because Ms Lindenberg is not a member, she does not have a lease, she does not allow regular inspections and Kalwun would rather give the property to a “needy family”. These matters cannot change the fact that Kalwun had no grounds for issuing a notice to leave. The Tribunal may only make an order if Kalwun established the ground of the application[1]. If Kalwun cannot establish the ground of the application, then there is no breach and the Tribunal has no discretion.
[1] Residential Tenancies and Rooming Accommodation Act2008 s 337(2).
Bias is a very serious allegation. Kalwun says the learned Adjudicator was biased because she had a pre-formed view that Ms Lindenberg could stay in the premises even though she was not a member of Kalwun.
On the morning of the hearing, Kalwun asked the learned Adjudicator to excuse herself because of bias. Kalwun submitted that the learned Adjudicator was biased because she ‘had taken it upon herself to reverse [the earlier decision]’. When advised that this would require an adjournment, Kalwun withdrew its application.
As the learned Adjudicator explained,[2] Ms Lindenberg notified the Tribunal that she could not attend and requested an adjournment. The Tribunal may reopen a proceeding if a party did not appear at a hearing and has a reasonable excuse for not attending.[3] The learned Adjudicator should have given Kalwun an opportunity to make submissions about the reopening[4] but I am not persuaded that her failure to do so amounts to bias.
[2] Lindenberg v Kalwun Development Corporation [2012] QCAT 259, at [9].
[3] QCAT Act s139(4).
[4] QCAT Act s139(2).
The transcript does not support Kalwun’s submission that the learned Adjudicator had a pre-formed view of the dispute. On the contrary, the learned Adjudicator heard evidence and submissions from both parties. She explained the purpose of the hearing was to examine whether the evidence was sufficient to grant the order[5]. She questioned both sides carefully and was critical of both parties’ practices of recording rent payments. I can see no evidence of bias.
[5] Transcript page 9, lines 1- 3
There is no question of general importance that should be determined by the Appeals Tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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