Brisbane City Council v Face 2 Face Foundation Pty Ltd

[2014] QCAT 108

CITATION: Brisbane City Council v Face 2 Face Foundation Pty Ltd [2014] QCAT108

PARTIES:	Brisbane City Council (Applicant)
v
Face 2 Face Foundation Pty Ltd Chris Newton (Respondents)

APPLICATION NUMBER: MCD11 -14

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: 24 February 2014

HEARD AT: Holland Park

DECISION OF: Adjudicator Davern

DELIVERED ON: 18 March 2014

DELIVERED AT: Holland Park

ORDERS MADE:

1.    The Residential Tenancy Agreement between the parties shall be terminated as at 20/4/2014, in relation to the premises located at 953 Rochedale Road, Rochedale, on the grounds of Failure to Leave;

2.    I direct the issue of a Warrant of Possession to the Officer in Charge of Police at SOUTH BRISBANE or other officer in the State of Queensland. Whereas the Queensland Civil and Administrative Tribunal at HOLLAND PARK has made a termination order as above, on the application of the  BRISBANE CITY COUNCIL.  The Warrant authorises the police to enter the premises and give the possession of the premises to the applicant, and exercise the powers under the warrant with necessary and reasonable help and force for the period of 14 days from 23/4/14 and to expire at 6.00pm on 6/5/14. Entry under the warrant must be made between the hours of 8.00am and 6.00pm.

CATCHWORDS:

RESIDENTIAL TENANCY DISPUTE – lessor’s application for termination of lease for failure to leave – whether QCAT has jurisdiction – previous determination that the Residential Tenancies and Rooming Accommodation Act 2008 applies

Residential Tenancies and Rooming Accommodation Act 2008 ss 291, 293, 341

Face 2 Face Foundation Pty Ltd & Othrs v Brisbane City Council [2013] QCATA 252

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr Richard Schulte of counsel instructed by Brisbane City Legal Paractice

RESPONDENT: Mr Russell Mathews, Director of Face 2 Face Foundation Pty Ltd
Mr Chris Newton

REASONS FOR DECISION

1. This is an Application for a Termination Order relating to a residential tenancies agreement, for failure to leave (s 293 Residential Tenancies and Rooming Accommodation Act 2008 (RTRA Act)).  

2. The Respondents oppose the application on the basis that the RTRA Act does not apply to the situation and consequently QCAT does not have any jurisdiction. The dynamics of this situation have already been considered and determined on appeal with a previous application. Confirmation of QCAT’s jurisdiction can be found in paragraph [16] of the decision of Face 2 Face Foundation Pty Ltd & Othrs v Brisbane City Council [2013] QCATA 252. This case relates to an earlier attempt by the Brisbane City Council to obtain vacant possession of the subject property. The previous application for termination ultimately failed because the Applicant had not properly adhered to the requirements of s 293 of the RTRA Act.  

3. On 21/12/2009, the Brisbane City Council purchased two property lots from a Mr Mario Di Carlo. At this time the two lots were occupied by the company Face 2 Face Foundation Pty Ltd as trustee for the Face 2 Face Foundation ABN 69 337 976 604. A copy of a ‘Lease Agreement’ was presented by the Respondents, for properties at 953 Rochedale Road, and 921 Rochedale Road, Rochedale. It is dated 12 January 2009, and is signed by Mr Di Carlo and Mr Christopher Graeme Newton as director of the company.

4. The five (5) acre property at 953 included a house, a large shed and a number of small horse sheds. The ten (10) acre property at 921 consisted of open farm land and did not include the large house at the front of the property or the small house at the rear of the property. The Lease term was for five (5) years, plus an additional five (5) years should the lessee wish to extend their agreement after the first four (4) years. The Respondents no longer occupy the property at 921 Rochedale Road, Rochedale.

5. The Applicant has presented an original General Tenancy Agreement (RTRA Act) for the property at 953 Rochedale Road, Rochedale, and is dated 15/2/2009. It identifies Mr Mario DiCarlo as the Lessor, and tenants Mr Chris Newton and Face 2 Face Foundation Pty Ltd. The document was signed by Mr DiCarlo and Mr Newton for the company. It was a periodic lease commencing 15/2/2009. Ms Larissa Newton witnessed Mr Newton’s signature on this document. Ms Newton and Mr Russell Mathews are the current directors of the company. Key wording in the special terms are that: Tenant agrees to continue with the Lease should Lessor wish to extend the Agreement. When questioned at the hearing, Mr Newton only had vague recollection of events in 2009 and did not attempt to refute the content of this document.

6. Attached to the current termination application is a copy of a General Tenancy Agreement starting on 15/2/2012 and ending on 14/2/2013. It was signed by Ms Larissa Newton as company director on 30 March 2012 and witnessed by Chris Newton. The property has continued to be occupied and has effectively been a periodic lease since 14/2/13. Rent was paid up to 15/3/13, and nothing has been paid towards rent since.

7. The application for termination was filed with QCAT on 14/1/14. It is based on the tenants’ failure to leave after having been served with a Notice to Leave ‘Without Grounds’ on 31/10/13 for vacate on 10/1/14. No other relevant information or issues have been identified that could raise a challenge to this termination application. Consequently the tribunal makes a termination order in the following terms.

8. It is ordered that:

   a)    The Residential Tenancy Agreement between the parties shall be terminated as at 20/4/2014, in relation to the premises located at 953 Rochedale Road, Rochedale, on the grounds of Failure to Leave;

   b)    I direct the issue of a Warrant of Possession to the Officer in Charge of Police at SOUTH BRISBANE or other officer in the State of Queensland. Whereas the Queensland Civil and Administrative Tribunal at HOLLAND PARK Has made a termination order as above, on the application of the BRISBANE CITY COUNCIL.  The Warrant authorises the police to enter the premises and give the possession of the premises to the applicant, and exercise the powers under the warrant with necessary and reasonable help and force for the period of 14 days from 23/4/14 and to expire at 6.00pm on 6/5/14. Entry under the warrant must be made between the hours of 8.00am and 6.00pm.