Stringer v ILOOKProperty - [2023] QCATA 135

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Stringer v ILOOKProperty & Anor [2023] QCATA 135

PARTIES:

CHRISTOPHER STRINGER

(applicant/appellant)

v

GL PROPERTY GROUP PTY LTD (TRADING AS ILOOKPROPERTY)
(FIRST RESPONDENT)

AND

ORANGE CAKE PTY LTD

(second respondent)

APPLICATION NO/S:

APL277-23

ORIGINATING APPLICATION NO/S:

MCDT197/23 (Richlands)

MATTER TYPE:

Appeals

DELIVERED ON:

23 October 2023

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

IT IS THE DECISION OF THE APPEAL TRIBNAL THAT:

1. The application for leave to appeal or appeal is dismissed pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where application for leave to appeal or appeal the termination of a residential tenancy– where stay applications refused and warrant executed – where grounds of appeal do not assert any error – where application to terminate was grounded upon failure to leave at the end of a fixed term tenancy

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 47, s 143

Residential Tenancies and Rooming Accomodation Act 2008 (Qld) s 293, s 326, s 340, s 426

Australian Coal and Shale Employees’ Federation v The Commonwealth (1999) 217 ALR 495

Cachia v Grech [2009] NSWCA 232
Rodgers v Rodgers (1964) 114 CLR 608
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
House v R (1936) 55 CLR 499
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Stringer v iLookProperty & Anor [2023] QCA 192

Symes v Kahler [2022] QCATA 35

APPEARANCES & REPRESENTATION:

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

What is this application about?

Mr Stringer seeks leave to appeal[1] a decision of the tribunal below made on 9 August 2023 to issue a termination order and warrant (MCDT197-23) (‘the decision’) on the various grounds of alleged dishonesty on the part of the managing agents, damage to the property during the tenancy, his ongoing contributions to maintaining the property during the tenancy, ‘theft of rental payments’ by the previous managing agent and his own health issues.
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 143(3) (‘QCAT Act’); Application for leave to appeal or appeal filed 29 August 2023.
As his application for leave to appeal or appeal currently stands:
(a)The Appeal Tribunal refused Mr Stringer’s application to stay the termination order and warrant by a decision made 11 September 2023, at which time the warrant was reissued to take effect on 14 September 2023 and to remain in effect until 27 September 2023.
(b)The Court of Appeal refused Mr Stringer’s application to stay the Appeal Tribunal’s order reissuing the warrant by a decision made 25 September 2023.
(c)The warrant has been executed and possession of the property returned to the lessor.
By directions made 11 September 2023, on its own initiative, the Appeal Tribunal invited submissions from the parties as follows:
1. The Appeal Tribunal intends to consider whether to dismiss the application for leave to appeal or appeal pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) on the basis it appears to be futile/lacking in substance because:
a.       the decision the subject of the application terminated the residential tenancy of the applicants and provided for a warrant of posession to take effect on 8 September 2023;
b.       the Appeal Tribunal’s decision made 11 September 2023 refuses the application to stay the decision the subject of the application, with the effect that the tenancy remains terminated and the warrant is re-issued to take effect from 14 September 2023; and
c.     the Appeal Tribunal cannot, as an outcome of the appeal process make orders reinstating the tenancy or reversing a warrant of possession that has already been exercuted.
2. (a) Both parties must file in the Tribunal one (1) copy and give to the other party one (1) copy of written submissions addressing whether the application for leave to appeal should be dismissed pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and if not, why not by:
4:00pm on 12 October 2023.
(b) Unless otherwise ordered, the Appeal Tribunal will decide whether to dismiss the applications for leave to appeal or appeal on the papers, on the basis of written submissions from both parties and without an oral hearing, not before:
4:00pm on 12 October 2023.
Each party filed submissions in reply to the directions:
(a)The respondents agree to the proposed course of action and want the application for leave to appeal or appeal dismissed. They also seek compensation, which requires a separate application to be made.
(b)Mr Stringer references an ombudsman complaint he has made with respect the administration of his matter. He similarly seeks compensation regarding his dealings with his property managers.
Neither party requested an oral hearing.

Application for leave to appeal

In determining whether to grant leave, the Appeal Tribunal must be satisfied that:
(a)there is a reasonably arguable case of error in the primary decision;[2]
(b)there is a reasonable prospect that the appellant will obtain substantive relief;[3]
(c)leave is needed to correct a substantial injustice caused by some error;[4] or
(d)there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[5]
[2]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 (‘QUYD’).
[3]Cachia v Grech [2009] NSWCA 232, 2.
[4]QUYD (n 4).
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.
As to the first question of error, the application for termination filed on 28 June 2023 was grounded upon a failure to leave following the giving of a Form 12 Notice to Leave (Form 12).[6]
[6]Residential Tenancies and Rooming Accomodation Act 2008 (Qld) s 293 (‘RTRAA’).
The Form 12 was given on 20 March 2023 for the end of a fixed term tenancy agreement (section 291 of the Residential Tenancies and Rooming Accomodation Act 2008 (Qld) (‘RTRAA’)).
The required notice period for the ending of a fixed term tenancy is “2 months after the notice is given to the tenant and not before the end of a fixed term agreement” (section 326(3) and schedule 1 of the RTRAA).
The handover date in the notice was 27 June 2023, more than 3 months after the date the notice was given and reflecting the end of the fixed term of the tenancy agreement on 27 June 2023.
The application was filed on 28 June 2023, being the day following the handover day.
There being no defect in the notice given, and the application having been filed within time under section 293 of the RTRAA, the matter fell to be decided pursuant to section 340(2) of the RTRAA whereby the tribunal may make the termination order if it is satisfied the lessor has established the ground of the application (namely, the failure to leave) and notice to leave (namely, the end of the fixed term agreement).
Although the use of the word “may” indicates the tribunal’s decision to terminate is a matter of discretion, this is not overly helpful to Mr Stringer’s prospects on appeal as there is a strong presumption in favour of a decision involving discretionary judgment. It is not enough that the Appeal Tribunal might have decided differently, but, rather, an applicant must show that in terms of House v R[7] and Australian Coal and Shale Employees’ Federation v The Commonwealth[8] the discretion exercised by the decision maker has miscarried by acting on a wrong principle or giving weight to extraneous or irrelevant matters or failing to give weight or sufficient weight to relevant considerations or making a mistake as to the facts. The result must be so unreasonable or plainly unjust that the Appeal Tribunal may infer that there has been a failure to properly exercise the discretion. That is not alleged here.
[7](1936) 55 CLR 499.
[8](1999) 217 ALR 495; confirmed in Rodgers v Rodgers (1964) 114 CLR 608.
In any event, as mentioned, the grounds of the application for leave to appeal or appeal (dishonesty on the part of the managing agents during the tenancy, damage to the property during the tenancy, Mr Stringer’s contributions to maintaining the property during the tenancy, ‘theft of rental payments’ by the previous managing agent and his own health issues) do not attack the discretion exercised by the Tribunal to terminate Mr Stringer’s tenancy. Nor do they attack the grounds of the application or notice to leave, given the notice to leave was not grounded upon any allegations that Mr Stringer had not paid his rent or had otherwise breached his tenancy agreement: the termination was based upon a fixed term tenancy agreement coming to an end.
Notably, Her Honour Justice Mullins AO observed in the Court of Appeal decision in Stringer v iLookProperty & Anor [2023] QCA 192 that:
It is apparent from Mr Stringer’s material that he has a number of complaints against the second respondent which he would be wise to seek advice about whether he has a worthwhile claim to pursue against the second respondent that would amount to a claim for damages. The existence of such a claim does not alter the position that the termination order was made by QCAT for the purpose of giving effect to the lessor’s rights to terminate or to obtain a termination order in relation to a fixed term lease that had expired and for which the requisite notice to leave had been given on behalf of the second respondent. If it was therefore a matter of discretion, I would also not have granted the stay that Mr Stringer is seeking today.
As mentioned, Mr Stringer has avenues for a compensation claim arising from alleged breaches during his tenancy. Such claims are brought separately as ‘non urgent’ matters because they first require parties to complete dispute resolution procedures with the Residential Tenancies Authority with respect to their dispute.[9]
[9]See sections 415-420 and 429 of the RTRAA.
However, for present purposes, there are no grounds raised by Mr Stringer upon which the application for leave to appeal or appeal might succeed on its merits.
Further, as mentioned, the Appeal Tribunal cannot reinstate possession of the property to Mr Stringer as the outcome of his application for leave to appeal or appeal, even if both are successful. Nor can it award compensation for the termination as such a claim would also require a separate, ‘non urgent’ application to be made (such as one for relief under section 426 of the RTRAA).
Section 47 of the QCAT Act permits the tribunal to dismiss a proceeding if the tribunal considers it lacking in substance. In circumstances where avenues to stay the termination have been exhausted and the warrant of possession has been executed:
(a)there is no reasonably arguable case of error in the primary decision;[10]
[10]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 (‘QUYD’).
(b)there is no reasonable prospect that Mr Stringer will or even can obtain substantive relief;[11] and
[11]Cachia v Grech [2009] NSWCA 232, 2.
(c)there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage,[12]
[12]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.
the application for leave to appeal is entirely lacking in substance and is therefore dismissed on that basis.