Mobbs v Roman Catholic Trust for the Diocese of Townsville t/as Saints Catholic College
[2025] QCATA 9
•10 February 2025
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: Mobbs v Roman Catholic Trust for the Diocese of Townsville t/as Saints Catholic College [2025] QCATA 9 PARTIES: JEFFERSON MOBBS
(applicant)v ROMAN CATHOLIC TRUST FOR THE DIOCESE OF TOWNSVILLE T/AS SAINTS CATHOLIC COLLEGE
(respondent)APPLICATION NO: APL336-23 ORIGINATING APPLICATION NO:
MATTER TYPE:
MCDO50102-2022
Appeals
DELIVERED ON: 10 February 2025 HEARING DATE: On the papers HEARD AT: Brisbane MEMBER: Judicial Member Stilgoe OAM ORDER/S: 1. Leave to appeal is refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – leave to appeal – minor civil dispute – where the Appellant was party to an accommodation contract – where Appellant departed accommodation due to COVID-19 concerns – where Respondent claimed damages for breach of contract – where the Tribunal awarded in favour of Respondent – whether the tribunal made various errors of fact
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – leave to appeal – minor civil dispute – where the Appellant was party to an accommodation contract – where Appellant departed accommodation due to COVID-19 concerns – where Respondent claimed damages for breach of contract – whether Tribunal erred in applying principles of frustration – whether the contract was frustrated
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – leave to appeal – minor civil dispute – where the Appellant was party to an accommodation contract – where Appellant departed accommodation due to COVID-19 concerns – whether Tribunal erred in finding that Respondent did not breach of duty of care to Appellant
Queensland Civil and Administrative Tribunal Act s 3(b) s 28(3), s 142(3)
Brisbane City Council v Group Projects Pty Ltd 1979) 145 CLR 143
Cao v ISPT Pty Ltd [2024] NSWCA 188
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
DavisContractors Ltd v Fareham Urban District Council [1956] AC 696
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Harvey v Edwards, Dunlop & Co Ltd (1927) 39 CLR 302
Jones v Bartlett (2000) 205 CLR 166
oOh! Media Roadside Pty Ltd v Diamond Wheels Pty Ltd (2011) 32 VR 255
National Carriers v Panalpina (Northern) Ltd [1981] AC 675
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313
Pickering v McArthur [2005] QCA 294
Ross v IceTV [2010] NSWCA 272
Woolworths Group Ltd v Gazcorp Pty Ltd [2022] NSWCA 19APPEARANCES & REPRESENTATION: 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’).
[1] Jefferson Mobbs signed a guarantee for a contract with Saints Catholic College (‘the College’) on 17 February 2020 giving him accommodation on campus at James Cook University.
[2] Mr Mobbs moved to the College on 21 February 2020.[1] He left his accommodation on or about Thursday 19 March 2020 after advising a cleaner at the College. Mr Mobbs left personal items in his room.
[1] Email from Mr Mobbs to Ms Lamari dated 18 February 2020; appellant’s timeline labelled Q50102/22.
[3] The College wanted Mr Mobbs to pay accommodation and other fees owing to the College under the contract.
[4] On 11 September 2023, the Tribunal ordered that Mr Mobbs pay the College $3,800.
Application for leave to appeal
[5] Mr Mobbs wants to appeal the decision. He says that the Tribunal erred in fact by falsely stating the terms of the contract, erred in concluding Mr Mobbs did not comply with the terms of the contract, failed to find the contract was frustrated, failed to find the College owed Mr Mobbs a duty of care, failed to consider Mr Mobbs’ submissions of no case to answer, and proceeded on an invalid contract.
[6] To succeed in an appeal from a decision of the Tribunal in its minor civil jurisdiction, Mr Mobbs must obtain leave to appeal from the Appeal Tribunal.[2] Leave to appeal will usually be granted where there is a reasonable argument that the decision involves an error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[3]
[2]Queensland Civil and Administrative TribunalAct 2009 (Qld) s 142(3)(a)(i).
[3]Pickering v McArthur [2005] QCA 294 [3].
[7] Grounds 1 – 3, 5 and 7 allege that material errors of fact were made in concluding in the College’s favour, and Grounds 4, 6 and 7 relate to alleged material errors of law.
[8] For the reasons below, Mr Mobbs leave to appeal is refused.
Ground 1: Did the Tribunal misinterpret the timeline?
[9] Mr Mobbs says that the Tribunal made a material error of fact about the timeline of events, and that this error was the basis for finding his evidence unreliable.
[10] In its decision, the Tribunal found the events relating to Mr Mobbs’ departure occurred in the following order:[4]
[4] Transcript 1-3, lines 37-47 and 1-4, lines 1-2.
·Mr Mobbs departed the College and returned to Cairns.
·Mr Mobbs then contacted Centrelink.
·Centrelink then advised that it had not disbursed any money to the College as the invoice did not sufficiently break down the rent component.
Mr Mobbs had an arrangement that Centrelink would cover the amount due to the College for the accommodation fees.
·Mr Mobbs then advised Centrelink that he was no longer at the residence and to cancel the living away from home allowance.
·Mr Mobbs then emailed the College advising it that he wished to have a pro-rated refund of the amount paid by Centrelink paid for him.
[11] The Tribunal said the following regarding this sequence of events:[5]
Such a request [to receive a pro-rated refund], in my view, seems odd, given that Centrelink had advised him no payment had been made. And he, on his own evidence, advised them to cancel the allowance … In my view, the respondent’s actions in advising Centrelink payments – to cancel Centrelink payments means he is solely liable for the amount which this tribunal determines is due and owing to the applicant.
[5] Transcript 1-4, lines 8-14.
[12] Mr Mobbs submits that the following timeline had occurred instead:
·On 24 March 2020, Mr Mobbs emailed the College advising them of his departure, asking it to cancel the contract.
·On 1 April 2020, Mr Mobbs sought a pro-rated refund of the monies paid to the College.
·On the same day, Ty Goulter, a representative of the College, emailed stating that Centrelink had not made any payment.
·After this email on 1 April 2020, Mr Mobbs made contact with Centrelink, who advised him that it had not made any payment due to a lack of detail on the invoice.
·Mr Mobbs then cancelled the living-away-from-home arrangement with Centrelink.
[13] I accept that the Tribunal misinterpreted the facts regarding Mr Mobbs’ request for the pro-rated refund in finding that it occurred after Centrelink’s notification of the invoicing issue.
[14] The Appeal Tribunal will usually not disturb findings of fact where there is evidence capable of supporting a decision-maker’s conclusions and there is evidence capable of supporting any inferences underlining it.[6] Noting the extensive submissions provided, which included each of the various emails Mr Mobbs refers to, I am satisfied that an error of fact was made in concluding that the pro-rated refund request occurred after Mr Mobbs became aware that no payment had been made to the College.
[6]Dearman v Dearman (1908) 7 CLR 549, 561-2; Fox v Percy (2003) 214 CLR 118, 125-6.
[15] However, I am not convinced that the error had any effect on the outcome of the dispute.
[16] Clause 3.2 states:
The Resident must pay the Fees and Charges as stated in the Fee Schedule as soon as they become due and payable in the way directed by SCC.
[17] Clause 6.3 states:
The Resident has the following obligations … (d) to pay all Fees and Charges and any other fees or penalties when they fall due.
[18] The contract imposes strict personal liability on Mr Mobbs to pay the fees and charges due for his accommodation at the College. The obligations or intervention of Centrelink are irrelevant.
Ground 2: Did the Tribunal falsely state a term within the contract?
[19] Mr Mobbs says that the Tribunal erred in fact by concluding that a process existed in the contract for Mr Mobbs to depart the College.
[20] Clause 11 states:
11. RESIDENT’S RELEASE FROM AGREEMENT
11.1 The Resident agrees that the Resident is responsible for the entire period of the Agreement, however the Principal may (in the Principal’s absolute discretion) release the Resident from their obligations under this Agreement.
11.2 The Resident is released from their obligations under this Agreement effective from the time stated in the Principal’s notice or if not time stated, at the time the notice is given to the Resident.
[21] Subclauses 11.1 and 11.2 created a process by which a resident can be released from the agreement:
(a) Mr Mobbs must have first discussed an early departure with the College.
(b) Secondly, the College must have agreed to release Mr Mobbs from its obligations under the contract. The College had a unilateral power in choosing to grant this approval.
[22] I am satisfied that clause 11 conferred a process for Mr Mobbs to depart the College and that the Tribunal did not make an error in so finding.
Ground 3: Did the Tribunal err in concluding Mr Mobbs did not comply with that process?
[23] Mr Mobbs says that there was also a material error of fact in the Tribunal concluding that he did not comply with the process. Particularly, Mr Mobbs says the Tribunal erred by not considering his emails to the College as a sufficient request to terminate.
[24] On 19 March 2020, an email was sent by Mr Goulter to Mr Mobbs which read:
“Students who have extenuating circumstances are welcome to submit these for consideration … [e]ach would be considered based on their specific situation…
In short, we will be considerate, fair, reasonable and measured in our approach to rebate requests and refunds if required.”
[25] Mr Mobbs informed Mr Goulter of various issues in emails dated 24 and 25 March 2020 and 1 April 2020. He advised of his ‘comorbidities’ and risk of complication should he contract COVID-19, his dissatisfaction that blocks at the College were being used to quarantine infected residents, and, his and his partner’s financial distress. No further emails were sent by Mr Mobbs, however.
[26] Regardless, and rather importantly, the College did not give its approval. The Tribunal noted this.[7]
[7] Transcript 1-4, lines 41-42.
[27] Emails between Mr Goulter and Mr Mobbs indicate that the College was not satisfied with the information provided by Mr Mobbs and requested more. On 25 March 2020, Mr Goulter emailed the following in response to Mr Mobbs’ concerns:
I will look into this but ALL those wanting to self-isolate were in ensuite rooms, so I can’t se [sic] why they would use the toilets downstairs?
We did have some short stay residents that were above, which may have been who you saw.
They were NOT in isolation and not showing signs of flu-like symptoms.
I will await Gina’s investigation into alternate rooms for you though.
[28] On 1 April 2020, Mr Goulter emailed the following:
Are you able to explain the situation regarding your course enrolment? I have not heard of anyone being displaced as yet from JCU?
I will do my best to assist, but I do need to understand the Centrelink and JCU situation in order to do this.
[29] While Mr Mobbs responded to the 1 April 2020 email setting out his concerns, the College did not provide their acceptance. For the process to be complied with, the College must have agreed to Mr Mobbs’ departure.
[30] I am satisfied that the Tribunal had sufficient evidence to support its conclusions,[8] and I can find no reason to come to a contrary view.
[8] Transcript 1-4, lines 34-36, 41-42.
Ground 4: Was the contract frustrated?
[31] Mr Mobbs also says that the Tribunal erred in its application of the principles of frustration of contract.
[32] In oOh! Media Roadside Pty Ltd v Diamond Wheels Pty Ltd (2011) 32 VR 255 at [70], Nettle JA expressed the relevant principles as a bipartite test:[9]
Consistently with Codelfa, I take the law to be that a contract is not frustrated unless a supervening event:
(a) confounds a mistaken common assumption that some particular thing or state of affairs essential to the performance of the contract will continue to exist or be available, neither party undertaking responsibility in that regard; and
(b) in so doing has the effect that, without default of either party, a contractual obligation becomes incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract.
[9] Approved by the NSW Court of Appeal in Woolworths Group Ltd v Gazcorp Pty Ltd [2022] NSWCA 19 [215] (Bell P) (Bathurst CJ and Meagher JA agreeing).
[33] Frustration requires an assessment of the impact of the alleged frustrating event on the contract’s performance, considering numerous factors of varying weight.[10]
[10] Brisbane City Council v Group Projects Pty Ltd 1979) 145 CLR 143, 162-3; Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 380.
[34] The Tribunal observed:[11]
Whilst it was submitted by the respondent that the contract was frustrated, this, in my view, was clearly not the case. The outbreak of COVID and the health condition of the respondent would, in my view, have been matters which would have been considered by the principal, had the respondent simply commenced the conversation or communication about making an application for early termination. The COVID-19 did not provide him with the means of terminating early of his own volition.
[11] Transcript 1-4, 42, 1-5, 1.
[35] It is important to note that the objects of the Tribunal are to deal with matters in a way that is accessible, fair, just, economical, informal and quick.[12] It must also act with as little formality and technicality as permitted.[13] The absence of a specific reference to Codelfa does not in itself mean an error of law occurred.
[12]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b).
[13]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3)(d).
[36] The Tribunal considered whether a frustration of the contract could have been capable of remedy had the parties discussed the early termination. It also, albeit quickly, considered whether the contract was ‘radically changed’ by COVID-19. The Tribunal’s statement, ‘… COVID-19 did not provide him with the means of termination early of his own volition,’ is enough to indicate the Tribunal turned its mind to the relevant principles.
[37] In any event, and as the Tribunal found, Mr Mobbs’ argument that his contract was frustrated is flawed.
[38] Mr Mobbs says that the contract was frustrated because of the COVID-19 pandemic, and associated lockdowns and campus closures. He says that the College could no longer provide him with a safe space to stay. Mr Mobbs submits that these instances ‘alone were enough to make the contract radically different to the one contemplated at the time of signing’.
[39] The purpose of the agreement was to provide Mr Mobbs with residential accommodation and communal living. Neither the lockdown restrictions imposed in March 2020 nor the College’s decision to house quarantine patients prevented Mr Mobbs’ access to the premises. It remained the case that the premises could still be used for the purpose expressly contemplated under the contract: for Mr Mobbs to occupy the room. This could not be said to have been a ‘radically different’ situation.
[40] The period of interruption caused by the supervening event is also relevant.[14] The mere incidence of expense, delay or hardship is not sufficient, nor are disappointed expectations,[15] or adverse changes in circumstances.
[14]National Carriers v Panalpina (Northern) Ltd [1981] AC 675, 707 (Lord Simon).
[15] DavisContractors Ltd v Fareham Urban District Council [1956] AC 696, 715; Ross v IceTV [2010] NSWCA 272 [78].
[41] Face-to-face teaching ceased for only 1-week, ‘for the period Monday 23 March to 27 March, inclusive’, and JCU communications did not suggest indefinite closures. Where Mr Mobbs left the College, it could not be said that his accommodation was interrupted for a substantial period of time, if at all.
[42] In Cao v ISPT Pty Ltd [2024] NSWCA 188, it was upheld on appeal that COVID-19 public health orders that altered the operation of a three-year commercial lease for ten weeks did not create a radical or fundamental change in what had been contracted for. The restaurant could still operate (albeit at reduced capacity) and the lease still had something of value for its tenants.
[43] Mr Mobbs’ argument that COVID-19 frustrated the contract fails to show a fundamental change in what had been contracted for. The fact the College could no longer provide Mr Mobbs with a safe space to stay (which has not been proven) does not, in my view, show that the accommodation contract was ‘radically different’. Mr Mobbs could still use the room and its facilities.
Ground 5: Did the Tribunal err in failing to find that the College owed Mr Mobbs a duty of care?
[44] Mr Mobbs says that the Tribunal erred in fact by failing to consider the duty of care to provide safe accommodation. Mr Mobbs submits that the College breached its duty to him, as resident, by using his apartment block as a quarantine ward.
[45] A duty may be implied contractually in relationships of landlord and tenant that a landlord must take reasonable care to avoid foreseeable risk of injury to the tenant.[16] The nature and extent of the duty in the particular instance depends upon the circumstances of the case.
[16] Jones v Bartlett (2000) 205 CLR 166, 184 [56], citing Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, 343 (Dawson J, with whom Gummow J agreed).
[46] The Tribunal acknowledged that Mr Mobbs had various health risks and that they were complicated due to the nature of the COVID-19 pandemic.[17] The Tribunal also noted: [18]
He clearly was unhappy with the communal amenities situation, which was heightened as some students in quarantine, it seems, were in the building that he was resident in … it was also the case that the course he was undertaking had moved to a model where personal face-to-face attendance was not required.
[17] Transcript 1-4, lines 20-21.
[18] Transcript 1-4, lines 30-32.
[47] However, it is also true that the College implemented various measures to alleviate Mr Mobbs’ distress, as well as to address the crisis as a whole. The College issued various responses to Mr Mobbs’ concerns over residents using his floor, delivered instructions to residents to social distance and urged residents to avoid off-College activities. As the Tribunal noted, ‘there [were] a number of factors at play’.[19]
[19] Transcript 1-4, line 28.
[48] The Tribunal turned its mind to the required matters and its conclusion that the College did not breach its duty to Mr Mobbs is reasonable on the evidence. I have no reason to find against that.
Ground 6 – Did the Tribunal fail to hear Mr Mobbs’ request for a no-case submission?
[49] Mr Mobbs says that the case put forward by the College was deficient as it failed to provide a copy of a full legal contract because that contract did not contain the consideration payable.
[50] In addition to clauses 3.2 and 6.3 (above), clause 1 in the accommodation agreement labelled ‘Definitions’ relevantly states:
“Accommodation Fees” means the fees for accommodation payable by the Resident to SCC for Residency at the College for the Term;
“Fee Schedule” means the Saints Catholic College Fee Schedule – 2020 that sets out the Accommodation Fees and all other fees and charges.
“Fees and Charges” means the fees and charges (including the Accommodation Fees) payable by the Resident to SCC as set out in the Fee Schedule.
[51] Clause 3.1 states:
The Fee Schedule details all the fees payable by the Resident and includes compulsory and non-refundable fees. The Fee Schedule forms part of this Agreement.
[52] As stated in Harvey v Edwards, Dunlop & Co Ltd (1927) 39 CLR 302 at 307, a contract ‘need not be contained in one document; it may be made out from several documents if they can be connected together’.
[53] Although the Fee Schedule was not included in the material provided to Mr Mobbs upon his signing on 17 February 2020, the fact the document was expressly referred to in the accommodation agreement has the effect of joining the two. That is, the Fee Schedule (which showed the consideration Mr Mobbs had to pay) was part of the agreement.
[54] Mr Mobbs had sufficient opportunity to ask for the Fee Schedule before he signed the document. He received the Fee Schedule by email on 18 February 2020.
[55] The Tribunal did not error in considering the Fee Schedule in assessing the contract’s validity and was correct to deny Mr Mobbs’ request for the matter to be heard on a ‘no-case submission’ basis.
Ground 7 – Was the contract invalid?
[56] Finally, Mr Mobbs submits that the Tribunal erred in law by deciding the matter on the basis of an incomplete or invalid contract.
[57] For the same reasons I addressed above in dismissing Ground 6, I find that the Tribunal did not error in relying upon the accommodation agreement.
Conclusion
[58] Mr Mobbs has not established that there has been a substantial injustice which the Appeal Tribunal needs to address.
[59] Leave to appeal is refused.
Orders
1. Leave to appeal is refused.
0
13
0