Amos v Fett & Anor - [2016] QCATA 120

CITATION:

Amos v Fett & Anor [2016] QCATA 120

PARTIES:`	EDWARD AMOS (Applicant/Appellant)
v
DESMA FETT (First Respondent) and CYNTHIA FETT (Second Respondent)
APPLICATION NUMBER:		APL478-15

MATTER TYPE:

Applications and Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

DELIVERED ON:

4 August 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

1. Leave to appeal is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – WHERE TO COMMENCE PROCEEDINGS – where the applicant brought proceedings in the Magistrates Court – where proceedings were transferred to the tribunal – where the parties did not attempt the conciliation process first – whether the tribunal has jurisdiction to hear the matter – whether the tribunal has exclusive jurisdiction to hear residential tenancy disputes under $25,000.

LANDLORD AND TENANT – TERMINATION OF THE TENANCY – where the respondents issued notices to remedy to breach before terminating their lease agreement – where the applicant claims the notices were invalid – whether leave to appeal should be granted.

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether the tribunal failed to take into account relevant considerations – whether the tribunal took irrelevant considerations into account – whether leave to appeal should be granted.

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3, 4, 6, 7, 9, 10, 11, 12, 13, 28, 32, 33, 35, 36, 48, 53, 61, Schedule 3

Queensland Civil and Administrative Tribunal (Jurisdictions Provisions) Amendment Act 2009 (Qld) s 1445(1)

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 3, 4, 295, 414A, 416, 417, 419, 420, 424, 429, 432

Retail Shop Leases Act 1994 (Qld) s 94(1)

Allesch v Maunz (2000) 203 CLR 172

Attorney-General (SA) V Corporation of the City of Adelaide (2013) 249 CLR 1

Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277

Brewer v Black [2013] QCATA 264

Bropho v State of Western Australia (1990) 71 CLR 1

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616

Campaigntrack Victoria Pty Ltd v Department of Justice and Attorney General [2016] QCA 37

CSR Ltd v Della Maddalena (2006) 224 ALR 1

Caruana v Harcourts Proactive Results Pty Ltd [2012] QCATA 55

Coco v R [1994] 179 CLR 427

Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124

Fitzroy v Cave [1905] 2 KB 364

Fox v Percy (2002) 214 CLR 118

Lowe v Aspley [2010] QCATA 59

Queensland Building and Construction Commission v Watkins [2014] QCA 172

Potter v Minahan (1908) 7 CLR 277

Raymond v Doidge [2012] QCAT 163

Scholefield v High Surf Resorts Pty Ltd [2013] QCATA 157

Sendall v Howe [2012] QCATA 41

Torkington v Magee [1902] 2 KB 427

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

The applicant landlord applies for leave to…

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.

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Details

Case: [2016] QCATA 120
Decision Date: 4 August 2016

CaseChat Overview and Summary

Amos has brought proceedings against Fett and another respondent in the Magistrates Court, which were subsequently transferred to the tribunal. The primary issue for the tribunal was whether it had jurisdiction to hear the matter, given that the parties did not first attempt the conciliation process. The secondary issue was whether the tribunal has exclusive jurisdiction over residential tenancy disputes under $25,000. Amos further claims that the notices to remedy breaches issued by the respondents were invalid, justifying the termination of the lease agreement.

The tribunal examined whether it had jurisdiction to hear the matter, considering that the conciliation process was not attempted by the parties. It also evaluated whether it had exclusive jurisdiction over the dispute, given its value. The tribunal assessed the validity of the notices to remedy the breaches issued by the respondents. The tribunal considered whether it failed to take into account relevant considerations and whether it took irrelevant considerations into account. Ultimately, the tribunal had to determine whether leave to appeal should be granted.

In deciding the matter, the tribunal found that it had jurisdiction to hear the case despite the conciliation process not being attempted. It also found that it had exclusive jurisdiction over residential tenancy disputes under $25,000. The tribunal determined that the notices to remedy the breaches were valid, thus justifying the termination of the lease agreement. The tribunal held that it did not fail to take into account relevant considerations nor did it take irrelevant considerations into account. Therefore, the tribunal refused leave to appeal.

The tribunal refused leave to appeal.

Orders

Orders of the court

Leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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