Matthews v Sold & Leased Realty Pty Ltd
[2014] QCATA 71
•10 April 2014
| CITATION: | Matthews v Sold & Leased Realty Pty Ltd [2014] QCATA 071 |
| PARTIES: | Zelda Matthews (Applicant/Appellant) |
| v | |
| Sold & Leased Realty Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL402 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 10 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – dispute over water charges – previous notice without grounds set aside as retaliatory – fresh notice issued the next day – whether notice retaliatory - whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 291 Pickering v McArthur [2005] QCA 294 |
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
Ms Matthews had an ongoing dispute with her lessor’s agent about water charges. The agent issued a notice to leave without grounds on 4 March 2013. The tribunal set it aside. The agent issued a further notice to leave without grounds on 16 May 2013. Ms Matthews again applied to set aside the notice because it was retaliatory. An adjudicator dismissed her claim.
Ms Matthews wants to appeal that decision. She says the learned Adjudicator applied a test of certainty which does not exist in s 291 of the Residential Tenancies and Rooming Accommodation Act 2008(Qld). She says that the learned Adjudicator erred in his application of the facts to that section. She says the learned Adjudicator erred in considering the evidence of retaliation “in a piecemeal fashion” rather than considering the evidence as a whole.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:
There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
[1][2005] QCA 294 at [3].
Ms Matthews refers the appeals tribunal to each of ss 291(2)(a), 291(2)(b)(i), 291(2)(b)(ii), 291(2)(c) and 291 (3) and points out that each of them appear to respond to the facts that were before the learned Adjudicator. It is not enough to simply point to a tenant’s application to the tribunal, or a tenant’s complaint to a government entity, or a tenant’s action, or a tribunal order and ask the tribunal to draw the conclusion that it must be retaliatory. As A Wilson J pointed out in Bamfield v Zanfan Pty Ltd t/a Main Street Realty Caloundra[2]:
… the section appears to be designed to protect the tenant who has
justifiably taken action of the kind set out in s 291(2) (or something similar has occurred, like non-compliance with an unwarranted or unjustified notice to remedy under s 281) and has then been served with a Notice which is apparently responsive to the tenant’s acts but also, in the prevailing circumstances, unreasonable, excessive or vindictive.[2][2010] QCATA 1 at [24].
Further, a history of difficult relations, and a series of complaints by a tenant to a lessor or its agent is not, without more, evidence of retaliatory action[3].
[3]See Du Preez v Linda’s Homes Pty Ltd [2010] QCATA 2.
The learned Adjudicator considered the prevailing circumstances. He found that the dispute over water charges was not enough to make the notice retaliatory[4]. He noted that the lessor had complied with the tribunal’s previous orders[5]. Ms Matthews was on a periodic tenancy, so she had no right to a fixed term[6]. As the learned Adjudicator observed, the lessor could issue a new notice to leave without grounds that afternoon[7]. Ms Matthews did not want to stay in the property because she was actively looking for a house to buy[8]. Ms Matthews’ daughter told the learned Adjudicator that their efforts to buy a home were “coming together fairly quickly”[9].
[4]Reasons for decision page 8, lines 20-21.
[5]Reasons for decision page 8, lines 41-43.
[6]Transcript page 1-2, line 46.
[7]Reasons for decision page 7, lines 44-45, page 8 line 1.
[8]Transcript page 1-3, lines 20-25.
[9]Transcript page 1-3, lines 45-46.
The learned Adjudicator did express the view that the parties should have certainty in their dealings[10]. He took the view that Ms Matthews deserved certainty so that she did not have to worry about a warrant issuing in a very short time. But taking account of all the circumstances, and with the agent’s consent, the learned Adjudicator ordered that a warrant of possession issue but not until two months after the date of the order.
[10]Reasons for decision page 8, line31.
The evidence can support the learned Adjudicator’s finding that the notice was not, in all the circumstances, retaliatory. There was no evidence that the notice was unreasonable, excessive or vindictive. I can find no compelling reason to come to a different view from that of the learned Adjudicator. There is no reasonably arguable case that he was in error. Leave to appeal should be refused.
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