Brown v Jayandar Pty Ltd

[2011] QCATA 214

CITATION: Brown v Jayandar Pty Ltd [2011] QCATA 214

PARTIES:	Tracey Brown (Applicant/Appellant)
v
Jayandar Pty Ltd (Respondent)

APPLICATION NUMBER:   APL130-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 12 August 2011

DELIVERED AT: Brisbane

ORDERS MADE:    

Application for leave to appeal refused.

CATCHWORDS: 

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where the applicant was a resident at a caravan park at Hervey Bay – where the applicant was served with a Notice to Leave in Form 12 under the Residential Tenancies and Rooming Accommodation Act 2008 – where the applicant unsuccessfully sought an order setting aside the Notice to Leave – where the applicant now seeks to appeal that decision – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009, s 142
Residential Tenancies and Rooming Accommodation Act 2008, ss 281-290, 291, 297, 326, 345

Bamfield v Zanfan Pty Ltd [2010] QCATA 1

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Ms Brown and Mr Larsen resided in a caravan park at Hervey Bay.  The operators of the park Jayandar Pty Ltd served them with a Notice to Leave in Form 12 under the Residential Tenancies and Rooming Accommodation Act 2008 (RTRAA).  According to the only copy of the form that could be found amongst the papers filed by any of the parties, either at the original hearing or in this application for leave to appeal, the notice was given ‘with grounds’ and the grounds were: ‘abuse and harassment of management; abuse and harassment and threatening a tourist’.

2. Ms Brown and Mr Larsen applied to a Magistrate, sitting as a QCAT Ordinary Member in this Tribunal’s Minor Civil Disputes jurisdiction, for an order setting aside the Notice to Leave but their application was unsuccessful.  This is an application for leave to appeal that decision.  Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009, s 142(3).

3. According to the evidence given by the parties before the learned Magistrate and their submissions in this appeal the notice, and the words in it, refer to an incident which occurred earlier this year at the caravan park when Ms Brown and her small dog were confronted by a large dog belonging to other park tenants.

4. The learned Magistrate found, in his Reasons, that Mr Larsen took his subsequent complaint about this incident to management too far and caused a scene, made threats, and was threatening and abusive.  Mr Larsen did not give evidence but one of the park Manager’s employees Mr Sharp did, and that evidence was accepted by the Magistrate who, then, refused Ms Brown’s application to have the notice set aside.

5. By implication the learned Magistrate found that the Notice to Leave was a valid one and properly given; and, also that it was not what the RTRAA calls ‘retaliatory’.

6. Ms Brown now contends that the notice itself was invalid because none of the grounds listed in it are available for use in a notice of this kind under ss 281-290 of the RTRAA. It is also said that the notice did not comply with s 326(2)(a) which implies, it is submitted, that a lease agreement is essential for a tenant to understand their rights and obligations.

7. Elsewhere in the submissions made by Ms Brown and Mr Larsen it is said that the notice was ‘retaliatory’ because it was the product of, and followed, their legitimate complaint to management about the incident involving the dogs.  The fact that there was a connection between that incident and the giving of the notice was not in dispute; rather, as the learned Magistrate made clear in his Reasons, it was what happened between the two that was at the core of the dispute: that Mr Larsen went to the Manager’s office and spoke to Mr Sharp in abusive and threatening terms.

8. Although the learned Magistrate’s Reasons did not contain particulars of any provisions of the RTRAA upon which he relied, they make it clear he based his conclusions on s 297 which allows a lessor to apply for a termination order for a tenant’s ‘objectionable behaviour’. Under s 345 the order can be made if the Tribunal is satisfied that the applicant has established that ground, and the behaviour justifies termination. The Magistrate’s findings show he was satisfied about those things, and his conclusions could fairly be made on the evidence before him.

9. There is no valid appeal ground in the complaint with reference to compliance with s 326: the notice did comply with that section.

[10] In correspondence before the hearing, the tenants had raised an allegation that the notice was ‘retaliatory’. Under s 291 a notice to leave ‘without ground’ may be set aside if it is retaliatory in the sense explained in Bamfield v Zanfan Pty Ltd t/a Main Street Realty Caloundra [2010] QCATA 1 but, here, the notice relied upon grounds arising under s 297, and s 291 does not apply.

[11]  No error has been shown in the learned Magistrate’s decision, and the application for leave to appeal should be refused.