Stone v Grundy - [2018] QCATA 68

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Stone v Grundy [2018] QCATA 68

PARTIES:

BELINDA STONE
(appellant)

v

NICOLE GRUNDY

(respondent)

APPLICATION NO/S:

APL098-17

ORIGINATING APPLICATION NO/S:

MCDT1796/16

MATTER TYPE:

Appeals

DELIVERED ON:

8 May 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

Leave to appeal against the decision made in MCDT1796/16 is refused. The appeal therefore fails.

CATCHWORDS:

LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – JURISDICTION – where under section 350 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) the tribunal can make an order of its own motion when hearing a proceeding – whether the tribunal can also make such an order upon a subsequent application

LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – JURISDICTION – where under section 429(1) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) the tribunal can resolve a dispute ‘about an agreement’ – whether this empowers the tribunal to make an order for compensation to a tenant whose fixed term tenancy has come to an end because of lessor’s excessive hardship

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – leave to appeal – where minor civil dispute heard by Adjudicator – whether any reasonably arguable grounds of appeal

Acts Interpretation Act 1954 (Qld), s 49A
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 137, s 286, s 350, s 419, s 429

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 29

Commissioner of the Australian Federal Police v Hart & Ors; Flying Fighters Pty Ltd v Commonwealth of Australia & Anor; Commonwealth of Australia v Yak 3 Investments Pty Ltd & Ors [2016] QCA 215
David Jones Limited v Leventhal (1927) 40 CLR 357
Harbour Day Spa Pty Ltd v Tree Harmony (Australia) Pty Ltd [2013] QCAT 692
Harrison & Anor v Meehan [2017] QCA 315

Kenny v Preen [1963] 1 QB 499

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

This is an appeal from an Adjudicator who heard an application by a tenant, Belinda Stone, for compensation following the termination of her fixed term tenancy. In earlier proceedings the tenancy had been terminated on the grounds that the lessor, Nicole Grundy, would suffer excessive hardship if it were not terminated. At the time of the termination the tenancy had some 13 months to run (it was a two year fixed term tenancy).
Four weeks after vacating the premises, pursuant to the termination order, the tenant applied to the tribunal for compensation from the lessor because of the loss of the tenancy. This claim was refused by the Adjudicator. The tenant now appeals against that decision saying that the grounds relied on by the Adjudicator were wrong in law, and the Adjudicator had made other errors.
What happened in more detail
In order to understand the grounds of appeal it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stone v Grundy

Details

AGLC: Stone v Grundy [2018] QCATA 68
Case: [2018] QCATA 68
Decision Date: 8 May 2018

CaseChat Overview and Summary

The appeal in Stone v Grundy was heard by the Queensland Civil and Administrative Tribunal (QCAT) Appeal Tribunal. The dispute arose between a tenant, Stone, and a lessor, Grundy, under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). The tribunal was required to decide whether it had the authority to make certain orders on its own motion in proceedings, and whether it could order compensation to the tenant for a fixed term tenancy that ended due to the lessor's claimed excessive hardship. Furthermore, the tribunal needed to determine if there were reasonably arguable grounds for leave to appeal the tribunal's decision in a minor civil dispute.

The tribunal found that it did not have the power to make orders on its own motion in a subsequent application, as this was limited to instances when the proceeding was being heard. Regarding compensation, the tribunal held that it did not have the authority to award compensation to the tenant for the lessor's excessive hardship since the fixed term tenancy had already concluded. Lastly, the tribunal held that there were no reasonably arguable grounds for leave to appeal the decision in the minor civil dispute, as the appeal was out of time and none of the grounds of appeal had a chance of success.

In conclusion, the tribunal found that the appeal against the decision made in MCDT1796/16 did not have any reasonably arguable grounds. Therefore, leave to appeal was refused and the appeal failed. The tribunal's decision was that none of the grounds of appeal had a chance of success, and the appeal was only arguable if the decision maker was in error in law, or had made a factual finding which could not be made on the evidence. This was not the case here.

ORDERS:
Leave to appeal against the decision made in MCDT1796/16 is refused. The appeal therefore fails.

Orders

Orders of the court

Leave to appeal against the decision made in MCDT1796/16 is refused. The appeal therefore fails.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have carefully considered whether it would be right to treat this appeal as also one against the decisions made in the earlier proceeding of MCDT1427/16. Although the tenant’s criticism of the decisions made in that earlier proceeding probably have some justification, the difficulty is that she has made it clear in her application to appeal and in her submissions that she is not appealing against that earlier proceeding. Raising this issue pending the resolution of this appeal would therefore amount to giving the tenant legal advice, and assisting her to the disadvantage of the lessor. It would also require the tribunal to call for evidence and submissions about the reasons why she did not appeal against that proceeding and for the delay. This is because any such appeal would be out of time. Although the tribunal has an obligation under section 29 of the QCAT Act to ensure that a party understands the legal implications of assertions made, I do not think the obligation requires the issue about whether the appeal should be enlarged in this way to be raised before deciding this appeal.[23] [23]Section 29 does not require the tribunal to give advice as to how to conduct the proceedings: to do so necessarily involves unfairness to one of the parties, and notwithstanding the desirability for informality in proceedings before the tribunal, the need for impartiality remains paramount: Harrison & Anor v Meehan [2017] QCA 315, [13].Conclusions This is an appeal only against the decision made in MCDT1796/16, made on 17 January 2017. None of the grounds of appeal have a chance of success. Appeals in minor civil disputes can only be brought with the leave of the Appeal Tribunal. Such leave will only be given if there is an arguable case on appeal. Such appeals are only arguable if the decision maker is in error in law, or has made a factual finding which could not be made on the evidence. This is not the case here. Leave to appeal is refused and the appeal therefore fails.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Stone v Grundy [2018] QCATA 68
PARTIES:	BELINDA STONE (appellant)
v
NICOLE GRUNDY (respondent)
APPLICATION NO/S:	APL098-17
ORIGINATING APPLICATION NO/S:	MCDT1796/16
MATTER TYPE:	Appeals
DELIVERED ON:	8 May 2018
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Gordon
ORDERS:	Leave to appeal against the decision made in MCDT1796/16 is refused. The appeal therefore fails.
CATCHWORDS:	LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – JURISDICTION – where under section 350 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) the tribunal can make an order of its own motion when hearing a proceeding – whether the tribunal can also make such an order upon a subsequent application LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – JURISDICTION – where under section 429(1) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) the tribunal can resolve a dispute ‘about an agreement’ – whether this empowers the tribunal to make an order for compensation to a tenant whose fixed term tenancy has come to an end because of lessor’s excessive hardship APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – leave to appeal – where minor civil dispute heard by Adjudicator – whether any reasonably arguable grounds of appeal Acts Interpretation Act 1954 (Qld), s 49A Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 137, s 286, s 350, s 419, s 429 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 29 Commissioner of the Australian Federal Police v Hart & Ors; Flying Fighters Pty Ltd v Commonwealth of Australia & Anor; Commonwealth of Australia v Yak 3 Investments Pty Ltd & Ors [2016] QCA 215 David Jones Limited v Leventhal (1927) 40 CLR 357 Harbour Day Spa Pty Ltd v Tree Harmony (Australia) Pty Ltd [2013] QCAT 692 Harrison & Anor v Meehan [2017] QCA 315 Kenny v Preen [1963] 1 QB 499
REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).