Tut v Department of Communities and Housing
[2012] QCATA 196
•11 October 2012
| CITATION: | Tut v Department of Communities and Housing [2012] QCATA 196 |
| PARTIES: | John Chuol Tut (Applicant/Appellant) |
| v | |
| Department of Communities and Housing (Respondent) |
| APPLICATION NUMBER: | APL067-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 11 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS: | Termination order – where the applicant engaged in objectionable behaviour – multiple breaches Queensland Civil and Administrative Tribunal Act2009, s 142(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Mr Tut was the beneficiary of supported housing accommodation through the Department of Communities and Housing in a unit complex in Farm Street, Newmarket. The Department filed an application in the minor civil dispute jurisdiction in the Tribunal for an order terminating the tenancy because of Mr Tut’s objectionable behaviour during the period of his occupation of the unit commencing in 2004.
The application for termination came on for hearing before a Tribunal Adjudicator on 12 January 2012. At the commencement of the hearing and after discussions with the parties he decided to adjourn the matter to 1 March 2012 to give Mr Tut an opportunity to establish that his behaviour had changed. I infer from the transcript of evidence filed in respect of the hearing on 1 March 2012 that if this was the case the application may have been dismissed and Mr Tut would be able to continue to reside in that accommodation. However, evidence produced before the Tribunal on the resumed hearing date of 1 March 2012 established that Mr Tut’s objectionable behaviour continued and therefore, there was a hearing as to whether or not a termination order should be made.
At that hearing, the Department produced two statutory declarations from residents of the unit complex, who both confirmed that between 12 January 2012 and 1 March 2012 there were further disturbances in the unit complex, in fact the day after the original hearing and subsequent days.
A police report was also produced showing police attendance at the unit on multiple occasions between 2005 and 2011.
On the basis of that evidence, and submissions made from the Department’s representative, the learned Adjudicator decided to make a termination order terminating the tenancy effective from 5 April 2012. That effectively gave Mr Tut a little over a month to find alternate accommodation.
From that decision Mr Tut has filed an application for leave to appeal or appeal. The grounds of appeal are of little assistance in that they simply assert that Mr Tut did not commit the breaches alleged during the period from 2004. I also infer, because of his statement that he wants the Tribunal to “believe me”, that he is challenging the findings of credit made by the learned Adjudicator.
As this is an appeal from a decision in the minor civil disputes jurisdiction leave or permission to appeal of the Appeal Tribunal is necessary.[1] The question whether or not leave to appeal should be granted is usually addressed according to established principles: is there a reasonably arguable case of error in the primary decision?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]
[1] QCAT Act, s 142(3).
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at 2.
[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
In support of the application for the termination order, the Department produced numerous notices to remedy breach for unpaid rent and interference with the reasonable peace, comfort or privacy of neighbours in the tenancy complex. A notice to remedy breach was issued on 25 March 2011, for unreasonable interference, followed by a notice to remedy breach for unpaid rent on 2 July 2011 and then a further notice of unreasonable interference on 8 July 2011. The breach continued and then on 13 July a further notice for unpaid rent was issued. In respect of those breaches, a notice to leave in form 12c was issued on 1 August 2011 followed by the application. In support of the application the Department produced evidence from witnesses, and as I’ve indicated the Queensland Police Service in respect of their attendance at the premises on various occasions.
The application brought under section 299 of the Residential Tenancies and Rooming Accommodation Act 2008 relate to the repeated breaches including Mr Tut’s use of the premises under section 184 of the Act which includes interference with the reasonable peace, comfort or privacy of a neighbour of the tenant.
The learned Adjudicator when he considered the evidence put forward by the Department was satisfied, on balance, that the termination ground had been made out by reference to not only the notices to remedy breach which were before him, but also the evidence of Mr Tut. A perusal of the transcript indicates that Mr Tut gave inconsistent evidence about the allegations made against him and that even in the intervening period between when the matter first came on before the Tribunal and the hearing before the learned Adjudicator further breaches were committed.
Although there is a discretion involved in making a termination order the exercise of that discretion will not be interfered with by an Appeal Tribunal unless it can be demonstrated that the learned Adjudicator made some error in the exercise of the discretion, acted upon a wrong principal, allowed extraneous or irrelevant matters to guide or effect him or made a mistake about the facts. It is evident that he took into account all relevant information here and also expressed concern that Mr Tut might have difficulty obtaining alternate accommodation. However, the breaches complained of were serious and ongoing.
Mr Tut has been unable to demonstrate any error on the part of the learned Adjudicator in the exercise of discretion and his reliance on the facts that were before him. The decision he reached was open on this evidence and I see no basis to interfere with his order.
As no error has been demonstrated nor is any apparent, leave to appeal must be refused.