Coastlink Property Services Pty Ltd v Chapman - [2023] QCAT 452

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Coastlink Property Services Pty Ltd v Chapman and Anor [2023] QCAT 452

PARTIES:

COASTLINK PROPERTY SERVICES PTY LTD T/AS PRD ROBINA OB ANDREW BAILEY & SOLAMON BAILEY

(applicant)

v

JASON CHAPMAN, ZACCARY CHAPMAN, CAITLYN HIBBENS CHAPMAN, JACOB HIBBENS CHAPMAN, TERESA TAYLOR

(respondent)

APPLICATION NO/S:

T1002/23

MATTER TYPE:

Residential tenancy matters

DELIVERED ON:

28 November 2023

HEARING DATE:

22 November 2023

HEARD AT:

Southport

DECISION OF:

Adjudicator Alan Walsh

ORDERS:

The Form 2 Application filed prematurely on 23 October 2023 for an order terminating the Respondents residential tenancy is dismissed.

CATCHWORDS:

CIVIL LAW – CIVIL TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – LANDLORD AND TENANT – TERMINATION OF RESIDENTIAL TENANCY IN QUEENSLAND – where application for termination of residential tenancy filed – where ground was failure to leave – where failure to leave a statutory cause of action – where handover day in Form 12 Notice to leave fell on a Sunday – where Applicant filed application on Monday following – whether complete cause of action had accrued – whether obligation to leave extended by operation of law to midnight on the Monday – whether application filed prematurely – whether section 293 of Residential Tenancies and Rooming Accommodation Act 2008 (Qld) prescriptive – whether section 38 of the Acts Interpretation Act 1954 (Qld) prescriptive – whether invocation of section 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) available – whether premature filing of application merely procedural

Acts Interpretation Act 1954 (Qld), s 38

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 293, s 326

Perring v Nicholson [2023] QCATA 118

APPEARANCES & REPRESENTATION:

Applicant:

In person - by its Director Justin Johnson

Respondent:

No appearance

REASONS FOR DECISION

Residential tenancy disputes between self-representing parties in this Tribunal not infrequently raise difficult points of law and involve technicality well beyond their descriptor - minor civil disputes. Technical statutory traps tend to ambush the unwary - tenants, agents, and owners alike.

The Issue

The crisp point for urgent adjudication is whether the statutory cause of action on which the Applicant relies, that is – the Respondent tenants’ failure to leave as required by Form 12 Notice, had arisen before the date on which it filed its’ Form 2 Application on Monday the 23^rd of October 2023 for termination of the Respondents’ tenancy, or whether the Application was premature because a complete cause of action was then not yet available.

The Hearings

The Respondents did not attend either of two hearings eight days apart. I adjourned the first hearing on 14 November 2023 for two reasons. Firstly, because the issue I identified apparently took the Applicant by surprise and its director Mr Johnson wanted the opportunity to obtain legal advice and file written submissions. Secondly, because one of the Respondents sought an adjournment due to ill health and inability to attend the hearing. I…

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: [2023] QCAT 452
Decision Date: 28 November 2023

CaseChat Overview and Summary

In the matter of Coastlink Property Services Pty Ltd versus Chapman, the dispute arose in the Queensland Civil and Administrative Tribunal concerning the premature filing of an application for the termination of a residential tenancy. The Applicant, Coastlink Property Services, sought to terminate the tenancy on the basis of the Respondent's failure to vacate the premises as stipulated in a Form 12 Notice to leave. The Notice specified a handover date that fell on a Sunday, and the Applicant filed the termination application on the subsequent Monday, asserting that the Respondent's failure to leave constituted a statutory cause of action.

The primary legal issue before the Tribunal was whether the Applicant's cause of action had fully accrued by the time the application was filed. This hinged on whether the obligation to vacate extended by operation of law to the end of the Monday, thereby rendering the application premature. The Tribunal had to determine if the statutory provisions, including section 293 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) and section 38 of the Acts Interpretation Act 1954 (Qld), were prescriptive in nature and if the invocation of section 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) was warranted. Furthermore, the Tribunal considered whether the premature filing of the application was merely a procedural matter or if it fundamentally affected the validity of the application.

The Tribunal concluded that the statutory provisions in question were indeed prescriptive, meaning that the Applicant's cause of action did not accrue until the end of the day specified in the Form 12 Notice. Since the application was filed prematurely, the Tribunal found that the application was not validly made. The Tribunal also determined that the premature filing of the application was not merely a procedural issue but one that affected the fundamental validity of the application. Consequently, the Tribunal dismissed the Form 2 Application for terminating the Respondent's residential tenancy.

Orders

Orders of the court

The Form 2 Application filed prematurely on 23 October 2023 for an order terminating the Respondents residential tenancy 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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