Predo v Department of Communities

[2010] QCATA 31

CITATION: Predo v Department of Communities [2010] QCATA 31

PARTIES:	Jennifer Lee PREDO (Applicant)
v
Department of Communities (Respondent)

APPLICATION NUMBER:            APL116-10               

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: President

DELIVERED ON:   15 July 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Application for stay refused.

CATCHWORDS : 

PRACTICE AND PROCEDURE – STAY OF PRIMARY DECISION – where applicant alleges the Department incorrectly assessed the rent calculation – whether stay should be granted 

Queensland Civil and Administrative Tribunal Act 2009, s 145(2)

Croney v Nand (1999) 2 Qd R 342, applied
Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220, applied

REASONS FOR DECISION

1. Ms Predo was a tenant of the Department in residential premises at Zillmere. The Department, alleging that Ms Predo was in arrears of rent, brought proceedings in QCAT’s Minor Civil Disputes jurisdiction for an order that her tenancy be terminated.

1. It is relevant, for present purposes, that the proceedings in the Tribunal had a rather complicated history. At an initial hearing on 27 April 2010 a number of orders were made in relation to Ms Predo’s obligations to pay rent by specified dates – in particular, that she pay $60 of arrears by 28 April 2010 and another $150 by 6 May 2010; and, that she provide certain documents to the Department, relevant to her claim that the rent should be reassessed, by 5 May 2010.

1. The matter was relisted for a further hearing on 7 May 2010 but that did not occur until 20 May 2010 when, it appears, Ms Predo had not paid the second sum for arrears, or provided any documents. On that day a Warrant of Possession was issued, to take effect on 24 May 2010.

1. Ms Predo raised some objections to that and the Department agreed that the matter could be relisted for another hearing on 8 June 2010. Presently, a transcript of the proceedings on that day is awaited but, according to the Department’s submissions in these appeal proceedings, it provided evidence to the adjudicator showing arrears of $2022.48 (or, if Ms Predo had provided evidence about her income, which affects the amount of her rent, arrears of $1607.65).

1. In any event a termination order was made and a Warrant of Possession issued to take effect on 29 June 2010.

1. Ms Predo sought leave to appeal that decision, and also applied for a stay of it. Her grounds, set out in that application, assert that the Department’s arrears calculations are incorrect and that she is unable to find alternative accommodation.  On 23 June 2010 this appeal tribunal ordered that her application for a stay be dealt with by written submissions, to be exchanged and filed according to a timetable.

1. Ms Predo’s submissions of 24 June 2010 repeat her assertion that the Department’s rent calculation is incorrect, with some further detail. The Department’s submissions restate its calculations showing, it says, that even if full credit is given to Ms Predo for her allegations about the changes in her personal circumstances which would have affected her rent payments, she remains in arrears and has not, in fact, paid any rent since a payment of $20 on 8 May 2010.

1. After consideration of these submissions this appeal tribunal ordered on 30 June 2010 that Ms Predo’s application for a stay be refused. She has sought reasons.

1. The QCAT appeal tribunal has power to order a stay: Queensland Civil and Administrative Tribunal Act 2009, s 145(2). Ms Predo carries the obligation of showing that a stay should be granted[1].

   [1]Croney v Nand (1999) 2 Qd R 342

1. The exercise of the discretion to grant or refuse a stay starts from the proposition that a successful party is usually entitled to the benefit of its judgement[2].

   [2]Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 per Dawson J at 222

1. For present purposes, the factors relevant to the discretion include the appellant’s prospects of success; the balance of convenience, and the competing rights of the parties; and, whether a refusal to grant a stay would make the appeal pointless.

1. The submissions of the parties stand in fairly stark contrast. Ms Predo’s submissions fail, in particular, to meet the Departments apparently careful calculations showing that, even if she is given all the benefit of the doubt about the proper amounts of rent she should have been charged from time to time, she remains substantially in arrears. She is only able to protest, in response, that she does not believe the arrears are of the size the Department claims but is unable to substantiate that claim or give any detail.

1. As to the balance of convenience, her alleged non-payment of rent since early May and the prospect of continuing additional losses to the landlord are material – as is the force of the Department’s compelling submissions that it can show, with precision, how she has allowed the rent to fall into arrears over a considerable period despite its efforts to assist her.

1. While the refusal of a stay exposed her to eviction and might, in some circumstances, suggest it might have been appropriate to preserve the status quo while her appeal was determined, the factors already mentioned outweigh, in my view, the degree of significance which might be given to that element here.  The Department’s case appears to be a strong one.

1. For these reasons, the stay was refused.