Alterine Pty Ltd v Corbett - [2021] QCATA 2

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Alterine Pty Ltd v Corbett [2021] QCATA 2

PARTIES:

ALTERINE PTY LTD
(applicant)

v

DOMINIQUE ANN CORBETT

(respondent)

APPLICATION NO/S:

APL025-20

ORIGINATING APPLICATION NO/S:

MCDT 1451/19

MATTER TYPE:

Appeals

DELIVERED ON:

4 January 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

1.   Leave to appeal granted.

2.   Appeal allowed.

3.   The Orders made on 10 December 2019 are set aside.

4.   The proceedings instituted by Application MCDT 1451/19 are remitted to a different Adjudicator for rehearing to determine whether major or structural repairs are required to the property sufficient to issue the Notice to leave dated 23 October 2019.

5.   The rehearing will proceed on the basis of testimony at the rehearing together with the evidence already filed by the parties.

6.   Unless the Tribunal otherwise orders, all witnesses must attend the rehearing in person for cross- examination. Any application for a witness to attend the hearing by a remote means or by remote conferencing must be made prior to 14 days before the hearing.

CATCHWORDS:

LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – where fixed term tenancy - where Act provides for ending of tenancy by written agreement - where notice to leave issued pursuant to written agreement to end tenancy – where notice was without grounds – where notice not outside ambit of Act

APPEAL AND NEW TRIAL – LEAVE TO APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where finding of invalidity of notice to leave was error of law – where failure to make findings of fact – where matter remitted for rehearing

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143, s 146
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 54, s 277
Residential Tenancies and Rooming Accommodation Regulation 2009 (Qld), Schedule 1, cl 36

Alikhan v Mian Prestige Real Estate t/as Ray White Runaway Bay [2010] QCATA 21
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Glynn v Brown & Anor [2016] QDC 313
McLachlan v Real Tenants – Real Property Management [2011] QCAT 665
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

REPRESENTATION:

Applicant:

J O’Brien of Small Myers Hughes Lawyers

Respondent:

Self-represented

APPEARANCES:

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 appeal about?

Alterine Pty Ltd rented a residence to Dominique Corbett since 8 February 2013. On 10 December 2019, an Adjudicator set aside its Notice to leave dated 23 October 2019 and dismissed its counter-application seeking declaratory orders.
Alterine has applied for leave to appeal the decision.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143(3).
In determining whether to grant leave,…

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 Alterine Pty Ltd v Corbett

Details

AGLC: Alterine Pty Ltd v Corbett [2021] QCATA 2
Case: [2021] QCATA 2
Decision Date: 4 January 2021

CaseChat Overview and Summary

Alterine Pty Ltd, a property owner, was involved in a dispute with Corbett, a lessee, concerning the ending of a fixed-term residential tenancy. The matter was brought before the tribunal to determine the validity of a notice to leave issued by the owner. The tribunal found the notice invalid due to lack of grounds, but the property owner sought leave to appeal on the basis of an error of law and the tribunal's failure to make certain findings of fact. The tribunal granted leave to appeal and allowed the appeal, finding that the tribunal's determination regarding the invalidity of the notice was indeed an error of law. Additionally, the tribunal noted that the tribunal had failed to make certain findings of fact, which necessitated a rehearing of the matter. The tribunal set aside the orders made by the tribunal on 10 December 2019 and remitted the proceedings to a different adjudicator for rehearing. The rehearing will focus on determining whether major or structural repairs are required to the property to justify issuing the notice to leave dated 23 October 2019. The rehearing will proceed based on the testimony at the rehearing and the evidence already filed by the parties. Unless the tribunal otherwise orders, all witnesses must attend the rehearing in person for cross-examination, and any application for a witness to attend the hearing by remote means or by remote conferencing must be made prior to 14 days before the hearing.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. The Orders made on 10 December 2019 are set aside.

4. The proceedings instituted by Application MCDT 1451/19 are remitted to a different Adjudicator for rehearing to determine whether major or structural repairs are required to the property sufficient to issue the Notice to leave dated 23 October 2019.

5. The rehearing will proceed on the basis of testimony at the rehearing together with the evidence already filed by the parties.

6. Unless the Tribunal otherwise orders, all witnesses must attend the rehearing in person for cross- examination. Any application for a witness to attend the hearing by a remote means or by remote conferencing must be made prior to 14 days before the hearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Alterine Pty Ltd v Corbett [2021] QCATA 2
PARTIES:	ALTERINE PTY LTD (applicant)
v
DOMINIQUE ANN CORBETT (respondent)
APPLICATION NO/S:	APL025-20
ORIGINATING APPLICATION NO/S:	MCDT 1451/19
MATTER TYPE:	Appeals
DELIVERED ON:	4 January 2021
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Hughes
ORDERS:	1. Leave to appeal granted. 2. Appeal allowed. 3. The Orders made on 10 December 2019 are set aside. 4. The proceedings instituted by Application MCDT 1451/19 are remitted to a different Adjudicator for rehearing to determine whether major or structural repairs are required to the property sufficient to issue the Notice to leave dated 23 October 2019. 5. The rehearing will proceed on the basis of testimony at the rehearing together with the evidence already filed by the parties. 6. Unless the Tribunal otherwise orders, all witnesses must attend the rehearing in person for cross- examination. Any application for a witness to attend the hearing by a remote means or by remote conferencing must be made prior to 14 days before the hearing.
CATCHWORDS:	LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – where fixed term tenancy - where Act provides for ending of tenancy by written agreement - where notice to leave issued pursuant to written agreement to end tenancy – where notice was without grounds – where notice not outside ambit of Act APPEAL AND NEW TRIAL – LEAVE TO APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where finding of invalidity of notice to leave was error of law – where failure to make findings of fact – where matter remitted for rehearing Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143, s 146 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 54, s 277 Residential Tenancies and Rooming Accommodation Regulation 2009 (Qld), Schedule 1, cl 36 Alikhan v Mian Prestige Real Estate t/as Ray White Runaway Bay [2010] QCATA 21 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Glynn v Brown & Anor [2016] QDC 313 McLachlan v Real Tenants – Real Property Management [2011] QCAT 665 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
REPRESENTATION:
Applicant:	J O’Brien of Small Myers Hughes Lawyers
Respondent:	Self-represented
APPEARANCES:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).