Torki v Norris

[2014] QCATA 253

CITATION: Torki v Norris [2014] QCATA 253

PARTIES:	Neviene Torki (Applicant/Appellant)
v
William John Norris (Respondent)

APPLICATION NUMBER: APL188 -14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe, OAM

DELIVERED ON: 26 August 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where application by tenant to terminate for excessive hardship – where material filed relevant to condition of tenancy – where earlier order of tribunal releasing bond to tenant – whether tribunal had power to order release of bond – whether release of bond affected compensation rights - whether grounds for leave to appeal

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 350

House v The King (1936) 55 CLR 499
Pickering v McArthur [2005] QCA 294
Hall v Janet Schouten Real Estate [2014] QCATA 213

APPEARANCES and REPRESENTATION (if any):

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).

REASONS FOR DECISION

1. Mr and Mrs Norris rented a Gold Coast apartment from Ms Torki. On 28 March 2014, on Mr Norris’ application, the tribunal terminated the tenancy agreement on the ground of excessive hardship.

2. Ms Torki wants to appeal that decision. She says that Mr Norris provided false information to the tribunal. She also wants the tribunal to make compensation orders.

3. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

   [1]QCAT Act s 142(3)(a)(i).

   [2]Pickering v McArthur [2005] QCA 294 at [3].

1. The learned Adjudicator terminated the tenancy agreement because there was detailed medical evidence that Mr Norris had severe health issues that made it difficult to live in a high rise apartment[3]. Any other evidence Mr Norris may have provided about other issues was irrelevant to the central question of whether the tribunal should terminate the tenancy agreement for excessive hardship.  If Mr Norris misled the tribunal, he did not mislead the learned Adjudicator on this issue.

   [3]Transcript page 1-33, lines 4 – 17.

1. The learned Adjudicator took great care in explaining the exercise of her discretion. The Appeal Tribunal will not interfere with an exercise of discretion unless it can be shown that the learned Adjudicator acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters[4]. I can find no such error in the exercise of the learned Adjudicator’s discretion in this case. There is no basis for leave to appeal on the learned Adjudicator’s decision to terminate the tenancy.

   [4]House v The King (1936) 55 CLR 499, at 504.

1. On 21 February 2014, the tribunal ordered the bond be paid to Mr Norris. Section 350(2) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“RTRA Act”) permits the tribunal to order compensation on an application for excessive hardship. However, it is clear that the tribunal cannot order compensation on a tenant’s application. Section 350(1) states that if a tribunal makes a termination order, except on an application by a tenant, it must also issue a warrant of possession. Section 350(2) states that as well as issuing the warrant of possession (my emphasis), the tribunal any make any other order it considers appropriate. If the tribunal is not issuing a warrant of possession, it stands to reason that it cannot order compensation. The tribunal had no power to make the order of 21 February 2014.

1. Ms Torki filed an application to reopen that decision. As I recently observed[5], the decision the subject of the reopening continues unless and until a fresh order is made. Although the order of 28 March 2014 was a fresh decision that replaced the decision on 21 February 2014, Ms Torki had taken no action to prevent the bond being paid to Mr Norris. That the Residential Tenancies Authority has paid the bond to Mr Norris is unfortunate, but not fatal to Ms Torki’s rights.

   [5]Hall v Janet Schouten Real Estate [2014] QCATA 213.

1. Ms Torki wants to claim compensation. Neither the order of 21 February 2014 nor the order under appeal affects that right. The order of 21 February 2014 expressly preserved Ms Torki’s right to compensation. The learned Adjudicator observed[6] that Ms Torki still had a right to claim compensation.

   [6]Transcript page 1-36, lines 8 – 10.

1. The appropriate course for compensation is to lodge a dispute resolution notice with the Residential Tenancies Authority, participate in conciliation and then, if not resolved, file an application with the tribunal. There is no evidence that Ms Torki took any of these steps. The learned Adjudicator was correct in her decision not to consider issues of compensation.

1. Although the learned Adjudicator erred in ordering the release of the bond, it is not an error that justifies granting leave to appeal. Ms Torki has not appealed the decision in which the order was made. The release of the bond does not affect her right to claim compensation separately. I also note from Mr Norris’ submission on appeal that he has paid Ms Torki compensation for some of the items she claimed.

1. Leave to appeal should be refused.