Tulloch v LJ Hooker Bay Islands Pty Ltd
[2024] QCATA 10
•5 February 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Tulloch v LJ Hooker Bay Islands Pty Ltd [2024] QCATA 10
PARTIES:
JAMES TULLOCH (appellant)
v
LJ HOOKER BAY ISLANDS PTY LTD (respondent)
APPLICATION NO:
APL006-23
MATTER TYPE:
Appeals
DELIVERED ON:
5 February 2024
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Judicial Member PG Stilgoe OAM
ORDERS:
1. Leave to appeal is refused.
CATCHWORDS:
LEAVE TO APPEAL – LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – where notice to remedy breach was given – where Tribunal set aside notice to remedy breach – where tenant made an application for leave to appeal – where tenant sought apology and restraining order - whether Tribunal had power to order formal apology – whether grounds for leave to appeal
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) (‘QCAT Act’).
REASONS FOR DECISION
James Tulloch is the tenant of a property managed by L J Hooker Bay Islands Pty Ltd. On 18 November 2022, L J Hooker, issued a notice to remedy breach in relation to Mr Tulloch’s alleged “objectionable behaviour” claiming that he had, on several occasions, been abusive to L J Hooker property managers and tradespeople. In response, Mr Tulloch alleged that L J Hooker personnel were harassing him. He applied to set aside the notice and the Tribunal did so on 8 December 2022.
Mr Tulloch then filed for leave to appeal the Tribunal’s decision.
As the decision made by the Tribunal was in relation to a minor civil dispute, it is necessary to obtain leave to appeal by the Appeal Tribunal.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision involves an 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].
Mr Tulloch says that he was not given natural justice because documents he provided to the Tribunal were disregarded. Mr Tulloch stated that the relevant documents proved his allegations that L J Hooker had been harassing him. He goes on to say that L J Hooker escalated the dispute by issuing a notice to remedy breach without justification. Mr Tulloch also claims that L J Hooker provided a false statutory declaration and that the agents’ actions have risked his health and safety.
The file shows that there was no love lost between Mr Tulloch and L J Hooker. Prior to the notice to remedy breach being given there were several disputes between the parties which affected the relationship. Both parties identified instances of poor behaviour in their dealings with each other. Mr Tulloch was concerned about inconsistencies with work carried out by L J Hooker and L J Hooker was concerned about Mr Tulloch’s apparently offensive behaviour.
Mr Tulloch’s grounds for leave to appeal do not address either errors of fact or law regarding the Tribunal’s decision. He successfully applied to set aside the notice to remedy breach.
At the hearing, Mr Tulloch asked the Tribunal to direct L J Hooker to give a formal apology and that L J Hooker stop harassing him.[3] The powers of the Tribunal are limited to those provided by legislation. While the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRA Act’) confers the Tribunal with power to make orders in relation to notices,[4] that power must be read contextually. Chapter 6, Part 2, Division 3 of the RTRA Act enumerates the Tribunal’s conferred powers, none of which relate to Mr Tulloch’s requests of the Tribunal, other than having the notice to remedy breach set aside.
[3] Transcript page 1-6, lines 10 – 20.
[4] RTRA Act s 426(1).
Mr Tulloch has not established any error by the Tribunal and there is nothing to suggest that he is the subject of a substantial injustice which the Appeal Tribunal needs to address.
Leave to appeal is refused.
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