Cephas Kaunda Lumina v Runcorn Townhouse Rentals

[2000] QCA 231

[2000] QCA 231

COURT OF APPEAL

PINCUS JA
THOMAS JA
DUTNEY J

No 3696 of 2000

CEPHAS KAUNDA LUMINA AND
CHIMBA DOROTHY LUMINA             Applicants (Applicants)

and

RUNCORN TOWNHOUSE
RENTALS               First Respondent (First Respondent)

and

TENANCY INFORMATION
CENTRE AUSTRALASIA
HOLDINGS PTY LTD     Second Respondent (Second Respondent)

BRISBANE

..DATE 14/06/2000

JUDGMENT

PINCUS JA:  It is now just over half an hour past the advertised time for commencement.  Mr Lumina has not appeared, nor has Mrs Lumina.  The associates have had a search for them in places where they might be within the Court building and have been unable to find them, and therefore we have decided to determine the matter without the benefit of any submissions by Mr or Mrs Lumina.

I have had the opportunity of studying the papers which have been filed and I have also taken the liberty of looking through the District Court file to examine the history of the matters in greater detail.  I notice that it is one in which there have been quite a number of applications made; I think about nine or 10 up to this stage.

The applicant seeks principally to have leave to renew an application for leave to appeal and also seeks an extension of time for seeking leave to appeal and to appeal.  The application for an extension of time relates to judgments given in the District Court by her Honour Judge Holmes, then an Acting District Court Judge, and by her Honour Judge Wolfe, the Chief District Court Judge, both of those decisions having been given last year.

My view of the matter, having spent some time looking at the papers, is that applications made in this case have no reasonable prospect of success and should be dismissed.

I would add that the whole series of cases, which have been stimulated by a dispute between Mr and Mrs Lumina and their landlord, is in the highest degree unfortunate.  It appears that initially there was some uncertainty in the minds of Mr and Mrs Lumina as to how much rental was due to the landlord and they, I gather grudgingly, accepted the landlord's view of that.  From that small dispute, there has arisen a series of applications in this Court and in the District Court, mostly in the latter, which have been very expensive for the Luminas because they have had a number of orders for costs made against them and the material discloses that their financial position is very bad.

It appears to me that Mr and Mrs Lumina would be well advised to try to ensure that they do not make any further applications to the Courts which are not properly conceived and really worth bringing.  If I could take one example of one that was not properly conceived, it seems clear that
Mr and Mrs Lumina have made an application to the District Court in respect of a matter in which, as they now concede, the District Court had no jurisdiction.

I mention that merely as an example of a case which plainly should not have been brought, particularly as I understand Mr Lumina has some high legal qualifications.

To return to the main point, however, my view is that the applications which have been made by the papers before us today are without substance and I would dismiss them.

THOMAS JA:  I agree.  I also have studied the material.  The application before us is described as an ex parte application for leave to appeal, an extension of time for appealing and to stay execution.

I can find no basis or material upon which the application could succeed.  I share the concerns mentioned by Mr Justice Pincus.  The order that should be made in the circumstances is that the application is dismissed.

DUTNEY J:  I agree.  I only wish to add that in relation to the stay of execution which is also contained in the application, quite apart from the lack of apparent merit in the proposed appeal, the affidavit does not raise any arguable case which would justify the grant of such a stay. 
It is not suggested that the respondents would have been unable to repay any amount paid even if the appeal had been permitted to proceed and otherwise had merit.  I otherwise agree with the orders proposed.

PINCUS JA:  The order of the Court is application dismissed with costs.

...

PINCUS JA:  The order will have to speak for itself.

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