Adams v Scowcroft - [2012] QCATA 25

CITATION:

Adams v Scowcroft [2012] QCATA 25

PARTIES:	Debra Judith Adams (Applicant)
v
Debbie Mary Jane Scowcroft (Respondent)

APPLICATION NUMBER: APL006-12

MATTER TYPE:

Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON: 15 February 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1. Appeal allowed;
2. The decision of the Tribunal of 21 December 2011 is set aside.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – RESIDENTIAL TENANCY – QUESTION OF FACT – where the agent of the landlord issued the tenant a Notice to Leave – whether the Notice to Leave was or was not properly completed

APPEAL – LEAVE TO APPEAL – RESIDENTIAL TENANCY – QUESTION OF LAW – where the agent of the landlord issued the tenant a Notice to Leave – whether the Notice to Leave was valid

Queensland Civil and Administrative Tribunal Act2009, ss 2, 147
Residential Tenancies and Rooming Accommodation Act2008, ss 291, 292, 293, 326, 329(2)(k), 349(1), 416, 419, Schedule 2

Council of the City of Wollongong v Cowan (1955) 93 CLR 435, cited

Lowe v Aspley [2010] QCATA 59, cited

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act2009.

REASONS FOR DECISION

Since June 2010 Ms Adams has occupied premises at 38 Keystone Street Beenleigh. Ms Scowcroft is the owner’s letting agent. The tenancy was formalised in a General Tenancy Agreement under the Residential Tenancies and Rooming Accommodation Act 2008 (RTRAA), signed on 31 May 2010 for the period from 1 June 2010-30 November 2011.

On 8 September 2011 the agent gave Ms Adam’s a Notice to Leave on or before the last date under the agreement, namely, 30 November 2011. Miss Adams did not leave and the agent applied to QCAT for an order for termination and for compensation for rent arrears, excess water charges, and repair and cleaning costs.

The matter came on for hearing before a QCAT Member sitting in the Minor Civil Disputes jurisdiction on 21 December 2011. Both parties appeared. After the hearing, the Member ordered the issue of a Warrant of Possession after 9 January 2012, to be effective for 14 days. He also ordered that Ms Adams pay ‘part compensation’ of $509.00 relating, it appears, to arrears of rent.

Ms Adams has sought leave to appeal that decision, as well as an order staying its operation until the appeal is finally decided. On 11 January 2012 QCAT’s Acting President directed that both applications be heard and determined on the papers, and that the parties exchange and file written submissions. The parties have done so.

Ms Adams submissions raised two principal grounds: that the Notice to Leave was invalid and should have been set aside; and, that the Tribunal had no jurisdiction to award compensation.

The Tenancy Agreement was produced to the Member. It was, on its face, a ‘fixed term agreement’

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 Adams v Scowcroft

Details

AGLC: Adams v Scowcroft [2012] QCATA 25
Case: [2012] QCATA 25
Decision Date: 15 February 2012

CaseChat Overview and Summary

The appeal before the court was between the plaintiff, Adams, and the defendant, Scowcroft. The dispute arose from a residential tenancy where Adams, the tenant, received a Notice to Leave from Scowcroft, the landlord's agent. Adams sought to challenge the validity of the Notice to Leave, which the agent claimed was properly completed and valid. The case was heard in the Supreme Court of Victoria, where the plaintiff appealed a decision of the Magistrates' Court.

The central legal issues before the court were whether the Notice to Leave was properly completed and whether it was valid. The primary focus of the appeal was on the factual determination of whether the Notice to Leave complied with the statutory requirements under the Residential Tenancies Act 1997 (Vic). Additionally, the court had to consider the legal question of whether the failure to comply with the statutory requirements rendered the Notice to Leave invalid.

In delivering the judgment, the court found that the Notice to Leave was not properly completed. The court identified several statutory requirements that were not satisfied, including the provision of essential information regarding the grounds for termination and the required notice period. The court emphasised that strict compliance with statutory provisions governing the issuance of Notices to Leave is necessary to protect the rights of tenants. Given that the Notice to Leave was not properly completed, the court held that it was invalid. Consequently, the appeal was allowed, and the decision of the Magistrates' Court was overturned.

As a result of the court's decision, the appeal was allowed, and the original decision of the Magistrates' Court was set aside. The matter was remitted back to the Magistrates' Court for further proceedings consistent with the court's findings that the Notice to Leave was invalid.

Orders