Anderson v Ace Finance Aust Pty Ltd - [2015] QCATA 68

CITATION:

Anderson & Anor v Ace Finance Aust Pty Ltd [2015] QCATA 68

PARTIES:	John Anderson and Sonja Anderson (Appellants)
v Ace Finance Aust Pty Ltd
(Respondent)

APPLICATION NUMBER:

APL012-15

MATTER TYPE:

Appeals

HEARING DATE:

6 May 2015

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

DELIVERED ON:

20 May 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where loan for land development scheme – where appellants’ company mortgaged residential property as security for loan – where appellants occupied the residence for a considerable time – whether appellants became residential tenants of the company – where appellants’ company defaulted under loan agreement – where lender placed in debtor’s shoes under security documents – where lender served RTA section 317 notice upon appellants – where appellants failed to vacate as notice required - whether tribunal has jurisdiction in application for termination order – whether section 317 notice may be treated as sufficient basis for RTA section 293 application – whether defect of form of notice may be disregarded – alternatively, whether tenancy ended by RTA section 277(6) - application for leave to appeal dismissed

Queensland Civil and Administrative Tribunal Act 2009 ss 61, 142
Residential Tenancies and Rooming Accommodation Act 2008 ss 12, 277, 291, 293, 317, 349, Forms 12, 18a, 19

Bauer v McMillan & Anor [2013] QCATA 140
Bergin v Minister of Housing and Public Works [2013] QCATA 190
Butler v Mackie [2013] QCATA 53
Cummings v Cairns and District Regional Housing Corporation Ltd [2013] QCATA 161
Equitiloan Securities Pty Ltd v Corozo Pty Ltd [1999] 1 Qd R 243

House v The King (1936) 55 CLR 499

Kwon v Cha; Kwon v O'Neill [2015] NSWCA 111

Lamont v Ray White Birkdale [2011] QCATA 235
Lowe v Aspley [2010] QCATA 59
Margaret Trimble v John Babet [2013] QCATA 81
O'Keefe v Fitzpatrick and Anor [2012] QCATA 45
Permanent Custodians Pty Ltd v Holsef Pty Ltd (in liq) [2004] QSC 299
Richardson v McArthur & Associates [2014] QCATA 44
Sendall v Howe and Anor [2012] QCATA 41

APPEARANCES and REPRESENTATION (if any):

APPELLANTS: Ms K Gothard instructed by Acuity Legal

RESPONDENT: Mr C Tam instructed by Hickey Lawyers

REASONS FOR DECISION

On 5 November 2014 the respondent (“Ace”) initiated this residential tenancy dispute against the appellants (“Andersons”).[1] It is not based on a standard General Tenancy Agreement.[2] The tenancy, if any, is implicit[3] in the peculiar circumstances of a land development scheme.
[1]Ace Finance Aust Pty Ltd v Anderson & Anor MCDT2684/14.
[2]Residential Tenancies and Rooming Accommodation Act 2008 (“RTA”) Form 18a.
[3]RTA s 12(3)(a) (“whether ... wholly in writing, wholly oral, or wholly implied”).
In July 2014 the Andersons’ family company, Odna Pty Ltd, purchased land at Regents Park, Queensland (“the land”). For that purpose Odna borrowed $3.5 million from Ace, a debt secured by registered mortgage 714576405 (“the mortgage”) and…

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: [2015] QCATA 68
Decision Date: 20 May 2015

CaseChat Overview and Summary

The matter of Anderson v Ace Finance Aust Pty Ltd involved the appellants, who were in default on a loan secured by a mortgage over a residential property. The property had been used by the appellants as their residence for a significant period. The dispute centred on whether the appellants had become residential tenants of the mortgagee company, Ace Finance Aust Pty Ltd. The dispute arose following the company’s default on the loan agreement, which led to the lender, Ace Finance, exercising its rights under the security documents to take possession of the property. Ace Finance served a notice under section 317 of the Residential Tenancy Act, requiring the appellants to vacate the premises. The appellants did not vacate, prompting Ace Finance to seek a termination order under section 293 of the RTA.

The central legal issues before the court were whether the tribunal had jurisdiction to hear an application for a termination order based on a section 317 notice, whether a section 317 notice could be considered a sufficient basis for a section 293 application, and whether a defect in the form of the notice could be disregarded. Alternatively, the court had to determine whether the tenancy had ended under section 277(6) of the RTA. The court had to assess these issues in light of the statutory framework governing residential tenancies and the specific circumstances of the case.

The court found that the tribunal lacked jurisdiction to hear the application for a termination order based on a section 317 notice, as such notices are not typically used to terminate residential tenancies. Moreover, the court held that a section 317 notice could not be treated as a sufficient basis for a section 293 application, and the defect in the form of the notice could not be overlooked. Additionally, the court concluded that the tenancy had not ended under section 277(6) of the RTA, as the notice served was not the appropriate mechanism to terminate the tenancy. Consequently, the court dismissed the application for leave to appeal, upholding the decision of the tribunal.

The court’s final order was to dismiss the application for leave to appeal, leaving the initial tribunal's decision in place. This outcome underscores the importance of following the correct statutory procedures when seeking to terminate a residential tenancy, and highlights the limitations of using certain notices to achieve such outcomes.

Orders

Orders of the court

The application for leave to appeal is dismissed.

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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