Phillips v Cutbush

[2011] QCAT 313

CITATION: Phillips v Cutbush and Anor [2011] QCAT 313

PARTIES:	Lawrie Phillips trading as Canungra Realty (Applicant)
v
Judith Ellaine Cutbush Paul Francis Cutbush (Respondents)

APPLICATION NUMBER:            MCD143-10 (Beaudesert)

MATTER TYPE: Other minor civil dispute matters

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President

DELIVERED ON:   4 July 2011

DELIVERED AT:   Brisbane

ORDERS MADE: The applicant’s application for an interim order or injunction is refused.

CATCHWORDS:

INTERIM ORDER OR INJUNCTION – RESIDENTIAL TENANCIES – Compensation Order – where final decision made and complied with – whether interim order can be made – where application to stay the final decision pending the outcome of an application for leave to appeal was refused – whether interim order should be made

Queensland Civil and Administrative Tribunal Act 2009, ss 58, 59

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. On 31 May 2011, I refused Mr and Mrs Cutbush’s application for an interim order or injunction.  They have requested reasons for that decision.  These are my reasons.

1. On 25 November 2010, Mr and Mrs Cutbush’s tenancy of a property at Tamborine was terminated by orders made in these proceedings.  They were then significantly in arrears of rent.  Taking into account the bond to be paid to the lessor, the Tribunal ordered Mr and Mrs Cutbush pay the balance owing ($2,085.00) by way of compensation to the lessor.

1. Subsequently Mr and Mrs Cutbush paid that sum to the lessor.  They have applied for an interim order or injunction, in effect to stay the order to pay $2,085.00.  It seems they want this order so they can amend their personal credit file and improve their prospects of obtaining alternative accommodation.

1. They have referred to a database by the name of VEDA.  This appears to be a reference to Veda Advantage, a data and information company that holds a database of consumer and business credit records that is searchable on-line.  If, indeed, that is what they intended to refer to, there is a process for disputing the accuracy of the records maintained by Veda Advantage.  The Tribunal does not appear to have jurisdiction for this and Mr and Mrs Cutbush have not asked for any order to be made against that company.  Mr and Mrs Cutbush may well pursue other avenues with that company directly.

1. The Tribunal may make an interim order in a proceeding if it considers it appropriate in the interests of justice, including either to protect a party’s position for the duration of the proceeding or to secure the effectiveness of the Tribunal’s jurisdiction for the proceeding.[1]  The Tribunal also has the power to order an interim injunction in a proceeding if it is just and convenient to do so.[2]

   [1]        Queensland Civil and Administrative Tribunal Act 2009, s 58(1).

   [2] Queensland Civil and Administrative Tribunal Act 2009, s 59(1).

1. An interim order in these proceedings is not available, whether under the interim order or the interim injunction provision of the Act.  The order sought would not protect Mr and Mrs Cutbush’s position for the duration of the proceeding.  The final decision has already been made.  Mr and Mrs Cutbush have already complied with it.  The proceeding is no longer on foot.

1. For the same reason, the order sought is not necessary to require or permit something to be done to secure the effectiveness of the Tribunal’s jurisdiction for the proceeding.  The Tribunal’s jurisdiction has already been exercised and its effectiveness secured by compliance with the orders.

1. Even if it were possible to make an interim order in proceedings that had already concluded, it is not otherwise in the interests of justice to do so, nor is it just and convenient to do so.

1. The final decision in the tenancy proceeding, including the particular order in question here, is subject to an application for leave to appeal.  The Tribunal has already refused a stay of the decision pending the application for leave being determined.

1. In effect, this application seeks the same relief as the stay application, to the extent that the stay application related specifically to the compensation order.  This is an inappropriate avenue to revisit the Tribunal’s decision to refuse the stay.

1. The Tribunal does not have the power to make the order sought after a final decision has been made in the proceedings.  Even if I am wrong in that conclusion, it is not in the interests of justice or just and convenient to make the order sought in the circumstances of this case.