Crowther v Jaunitis - [2022] QCATA 137

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Crowther v Jaunitis and Anor [2022] QCATA 137

PARTIES:

teena crowther

(appellant)

v

imants jaunitis and rhonda jaunitis

(respondents)

APPLICATION NO:

APL132-22

ORIGINATING APPLICATION NO:

MCDT408/22

MATTER TYPE:

Appeals

DELIVERED ON:

13 September 2022

HEARING DATE:

Heard on the papers

HEARD AT:

Brisbane

DECISION OF:

Member JR McNamara

ORDERS:

1. It is ordered that the application for leave to appeal be deemed to include a ground that the application of Imants Jaunitis and Rhonda Jaunitis filed on 12 April 2022, insofar as it concerned the Notice to Leave for rental arrears, was made contrary to section 293 of the Residential Tenancies and Rooming Accommodation Act 2008 and that accordingly the Tribunal lacked jurisdiction to make the orders recorded on 10 May 2022.

2.   The interlocutory applicated filed 1 August 2022 is dismissed.

3.   The application for leave to appeal is granted.

4.   The appeal is allowed.

5.   The orders made on 10 May 2022 are set aside.

6.   The application of Imants Jaunitis and Rhonda Jaunitis filed on 30 May 2022 is dismissed.

7.   Application number 408/22 (Southport) together with the transcript of evidence in the original hearing be remitted to the minor civil disputes jurisdiction for hearing.

8.   The hearing of the application be restricted to consideration of the Notice to Leave for vacant possession due to a contract of sale.

9.   No order as to costs.

CATCHWORDS:

APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where tenant was served Notice to Leave for vacant possession for contract of sale – where tenant was issued a Notice of Breach for rental arrears – where tenant was subsequently served a Notice to Leave for failing to pay rental arrears – where lessors applied for a termination of the lease – where orders made for termination and issue of warrant of possession – whether proceedings for termination order may be instituted before expiry of Notice to Leave – whether application to the Tribunal premature – whether there was jurisdiction to entertain the application – where ground of application not decided in the original hearing – where application for leave to appeal and appeal granted and the matter remitted to the Tribunal

Queensland Civil and Administrative Tribunal Act (Qld) s 146

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) s 39.

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 293, s 326, s 328, s 329

Face 2 Face Foundation Pty Ltd v Brisbane City Council [2013] QCATA 252, applied

Horsley v Davis [2021] QCATA 124, cited

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

The appellant (‘tenant’) occupies a property owned by the respondents (‘lessors’).
The lessors commenced two processes to regain possession of the property.
One, based on a need for vacant possession due to a contract of sale. That process commenced with a Form…

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.

Continue reading Crowther v Jaunitis

Details

AGLC: Crowther v Jaunitis [2022] QCATA 137
Case: [2022] QCATA 137
Decision Date: 13 September 2022

CaseChat Overview and Summary

The matter Crowther v Jaunitis was before the court, concerning a dispute between the tenant, Crowther, and the landlords, Jaunitis, over the validity of a Notice to Leave and subsequent termination of the lease. The tenants had been issued a Notice to Leave for vacant possession due to a contract of sale, and a Notice of Breach for rental arrears. Following this, the landlords served a Notice to Leave for non-payment of rental arrears. The landlords subsequently applied to the Tribunal for a termination of the lease and a warrant of possession, which was granted. Crowther appealed the decision on the grounds that the Tribunal lacked jurisdiction as the application was premature, and that the application concerning the rental arrears was invalid. The court of appeal found in favour of Crowther and remitted the matter to the minor civil disputes jurisdiction for a hearing restricted to the Notice to Leave for vacant possession due to a contract of sale.

The central legal issues before the court were whether the Tribunal had jurisdiction to entertain the application for a termination of the lease and warrant of possession before the expiry of the Notice to Leave, and whether the application concerning the rental arrears was valid. The court found that the application concerning the rental arrears was invalid, and that the Tribunal therefore lacked jurisdiction to make the orders in relation to that Notice to Leave. The court also found that the application for a termination of the lease and warrant of possession was premature, as the Notice to Leave for vacant possession due to a contract of sale had not yet expired. The court therefore set aside the orders made by the Tribunal and remitted the matter to the minor civil disputes jurisdiction for a hearing restricted to the Notice to Leave for vacant possession due to a contract of sale.

In reaching its decision, the court considered the relevant provisions of the Residential Tenancies and Rooming Accommodation Act 2008. The court found that the application concerning the rental arrears was made contrary to section 293 of the Act, and that the Tribunal therefore lacked jurisdiction to make the orders in relation to that Notice to Leave. The court also found that the application for a termination of the lease and warrant of possession was premature, as the Notice to Leave for vacant possession due to a contract of sale had not yet expired. The court therefore set aside the orders made by the Tribunal and remitted the matter to the minor civil disputes jurisdiction for a hearing restricted to the Notice to Leave for vacant possession due to a contract of sale.

The court made several orders in relation to the appeal. The court deemed the application for leave to appeal to include a ground that the application of Imants Jaunitis and Rhonda Jaunitis filed on 12 April 2022, insofar as it concerned the Notice to Leave for rental arrears, was made contrary to section 293 of the Act and that accordingly the Tribunal lacked jurisdiction to make the orders recorded on 10 May 2022. The court dismissed the interlocutory application filed on 1 August 2022, granted the application for leave to appeal, allowed the appeal, and set aside the orders made on 10 May 2022. The court also dismissed the application of Imants Jaunitis and Rhonda Jaunitis filed on 30 May 2022, and remitted application number 408/22 (Southport) together with the transcript of evidence in the original hearing to the minor civil disputes jurisdiction for hearing. The court restricted the hearing of the application to consideration of the Notice to Leave for vacant possession due to a contract of sale, and made no order as to costs.

Orders

Orders of the court

1. It is ordered that the application for leave to appeal be deemed to include a ground that the application of Imants Jaunitis and Rhonda Jaunitis filed on 12 April 2022, insofar as it concerned the Notice to Leave for rental arrears, was made contrary to section 293 of the Residential Tenancies and Rooming Accommodation Act 2008 and that accordingly the Tribunal lacked jurisdiction to make the orders recorded on 10 May 2022.

2. The interlocutory applicated filed 1 August 2022 is dismissed.

3. The application for leave to appeal is granted.

4. The appeal is allowed.

5. The orders made on 10 May 2022 are set aside.

6. The application of Imants Jaunitis and Rhonda Jaunitis filed on 30 May 2022 is dismissed.

7. Application number 408/22 (Southport) together with the transcript of evidence in the original hearing be remitted to the minor civil disputes jurisdiction for hearing.

8. The hearing of the application be restricted to consideration of the Notice to Leave for vacant possession due to a contract of sale.

9. No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Application number 408/22 (Southport) together with the transcript of evidence in the original hearing be remitted to the minor civil disputes jurisdiction for hearing. The hearing of the application be restricted to consideration of the Notice to Leave for vacant possession due to a contract of sale. No order as to costs.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The hearing of the application be restricted to consideration of the Notice to Leave for vacant possession due to a contract of sale. No order as to costs.