Craik v McAuley

[2013] QCATA 128

CITATION: Craik v McAuley [2013] QCATA 128

PARTIES:	Carol Craik (Appellant)
v
Liane McAuley (Respondent)

APPLICATION NUMBER: APL063-13

MATTER TYPE: Appeals

HEARING DATE: 2 May 2013

HEARD AT: Brisbane

DECISION OF: Dr J R Forbes, Member

DELIVERED ON: 3 May 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1. The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – primary order for eviction – premises vacated by tenant – purported appeal relating only to tenant’s property left on premises – no proper subject matter for appeal – application misconceived – application dismissed

Queensland Civil and Administrative Tribunal Act 2009, s 32, s 142
Residential Tenancies and Rooming Accommodation Act 2008, s 392, s 393, s 396

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. This purported appeal[1] is, unfortunately, quite misconceived.

   [1]Or more precisely, application for leave to appeal: QCAT Act s 142(3). “Appeal” is convenient shorthand.

2. An appeal is essentially a motion that a decision already made in a proceeding be amended or set aside, but this application is, in effect, an attempt to commence a new proceeding. It does not address the orders of the Adjudicator, made at Ipswich on 8 January 2013, pursuant to Liane McAuley’s application filed on 5 December 2012.

3. McAuley’s application, as amended, was brought under the Residential Tenancies and Rooming Accommodation Act 2008 (“RTA”). It sought an immediate eviction order against her sub-tenant, Craik, alleging hostility, threats, property damage and a collection of chattels constituting a fire hazard.

4. On 8 January 2013 an Adjudicator ordered that:

   a)    The residential tenancy agreement between the parties be terminated as from midnight on 19 January 2013 on the grounds of failure to leave;

   b)    A warrant of possession issue authorising a police officer to enter the premises at 26 Pencarrow Crescent, Raceview, Queensland 4305;

   c)    The warrant shall take effect on 19 January 2013 and remain in effect for 14 days, to expire at 6 pm on 2 February 2013;

   d)    The warrant [is] to be executed as soon as reasonably practicable after taking effect; and

   e)    Entry under the warrant shall only be between the hours of 8 am and 6 pm.

5. Craik vacated the premises on 19 January 2013.

6. On 11 February 2013 Craik filed a purported appeal endorsed with these Orders Sought:

   That my stuff is not to be disposed of, like I’ve been threatened by her with, until the time that I have said that I can pick it up at. If anything is missing when I do retrieve my things, I expect those things to be returned to me as well as paid compensation for what I have been subjected to by her and the other tenants. I also require my $50 key deposit as well as $6 for my stolen Orange Juice.

7. No order affecting the Adjudicator’s decision[2] is sought. The best that can be said for the endorsement is that it seems to foreshadow a separate and first-instance claim for detention and/or conversion of goods, and moneys owing. Appropriate treatment of property of a former tenant is set out in sections 392-393, and 396 of the RTA.

   [2]        See paragraph [4] above.

8. The purported appeal is simply misconceived and vacuous for want of any proper subject matter, and must therefore be dismissed.

ORDER

The application for leave to appeal is dismissed.