Crinis v Ray White Paradise Group - [2016] QCATA 90

CITATION:

Crinis v Ray White Paradise Group [2016] QCATA 90

PARTIES:	Kerry Crinis (Applicant/Appellant)
v
Ray White Paradise Group (Respondent)
APPLICATION NUMBER:		APL494-15

MATTER TYPE:

Application and Appeals

HEARING DATE:

12 January 2016

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

DELIVERED ON:

15 January 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

1. The applicant is granted an extension of time within which to file an application for leave to appeal.

2. The applicant is granted a waiver any outstanding procedural requirements, and is taken to have made the application for leave to appeal by oral submission on 12 January 2016.

3. The appeal filed by the applicant on 2 December 2015 is taken to be the basis for the applicant’s application for leave to appeal.

4. The application for a stay of the decision and orders of the tribunal in mcdt1581-15 is refused.

5. The warrant of possession directed to be issued by the adjudicator on 30 November 2015 in proceeding mcdt1581-15 is reissued on and from 18 January 2016.

6. In lieu of order 3 of the adjudicator dated 30 November 2015 in mcdt1581-15, substitute the following:

The warrant shall take effect on 18 January 2016 and remain in effect for 14 days, to expire at 6:00PM on 1 February 2016.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – STAY – where the applicant sought a stay of the decision of the Adjudicator in MCDT1581-15 – whether a stay should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 8, s 43, s 61, s 142, s 143, sch 3
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 95.
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 280, s 281, s 349
Residential Tenancies and Rooming Accommodation Regulation (Qld), sch 1, r 44

Berry v Green [1999] QCA 213
Briginshaw v Briginshaw (1938) 60 CLR 336
Carrie v Department of Communities (Housing and Homelessness Service) [2010] QCATA 15
Commissioner of Taxation v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220
Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322
Coulthard v National Real Estate Solutions Pty Ltd [2015] QCATA 116
Dearman v Dearman (1908) 7 CLR 549
Deputy Commissioner Stewart v Kennedy [2011] QCATA 254
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
Fox v Percy (2003) 214 CLR 118
Holliday v Franklin (Qld) Pty Ltd [2015] QCATA 135
Kanai v Department of Housing and Public Works (Unreported, Appeal Tribunal of the Queensland Civil and Administrative Tribunal, Carmody J, 15 September 2015)
KG v Public Trustee of Queensland [2011] QCATA 1
La Macchia v Department of Housing and Public Works [2015] QCATA 143
Legal Services Commissioner v Baker (No 1) [2006] 2 Qd R 107
Wheeler & Smith v Body Corporate for Calypso Towers & Anor [2015] QCATA 162

Woodgate Beach Asian Pacific Realty Pty Ltd v Gerard [2010] QCATA 64

APPEARANCES and REPRESENTATION (if any):

APPLICANT/APPELLANT C…

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: [2016] QCATA 90
Decision Date: 15 January 2016

CaseChat Overview and Summary

The appellant sought a stay of a decision made by an adjudicator in a matter concerning the enforcement of a warrant of possession. The application was heard by the Appeal Tribunal of the Civil and Administrative Tribunal of New South Wales. The appellant argued that the adjudicator had made an error in the exercise of his discretion, which resulted in the warrant of possession being issued without proper consideration of the circumstances. The respondent opposed the application for a stay and argued that the decision should be upheld as it was made in accordance with the applicable legislation.

The Appeal Tribunal considered whether a stay should be granted pending the outcome of an application for leave to appeal. The court examined the nature of the error alleged by the appellant and the impact of the error on the outcome of the proceedings. The tribunal held that the alleged error did not warrant a stay of the decision, as the appellant had not demonstrated that the error was likely to result in a miscarriage of justice. The court further held that the appellant had not demonstrated that the issuance of the warrant of possession would cause significant hardship or prejudice.

The Appeal Tribunal refused the application for a stay and ordered that the warrant of possession be reissued with a new effective date. The tribunal granted the appellant an extension of time to file an application for leave to appeal and waived any outstanding procedural requirements. The court emphasised the importance of following the correct procedural steps in making an application for leave to appeal and cautioned against the use of such applications as a means of delaying the enforcement of tribunal decisions.

Orders

Orders of the court

THE APPEAL TRIBUNAL ORDERS THAT:

1. The applicant is granted an extension of time within which to file an application for leave to appeal.

2. The applicant is granted a waiver any outstanding procedural requirements, and is taken to have made the application for leave to appeal by oral submission on 12 January 2016.

3. The appeal filed by the applicant on 2 December 2015 is taken to be the basis for the applicant’s application for leave to appeal.

4. The application for a stay of the decision and orders of the tribunal in mcdt1581-15 is refused.

5. The warrant of possession directed to be issued by the adjudicator on 30 November 2015 in proceeding mcdt1581-15 is reissued on and from 18 January 2016.

6. In lieu of order 3 of the adjudicator dated 30 November 2015 in mcdt1581-15, substitute the following:

The warrant shall take effect on 18 January 2016 and remain in effect for 14 days, to expire at 6:00PM on 1 February 2016.

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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