Cuda v Moriconi - [2014] QCAT 83

CITATION:

Cuda v Moriconi [2014] QCAT 083

PARTIES:	John Cuda (Applicant)
v
Grazaino Moriconi (First Respondent) Vilma Moriconi (Second Respondent)

APPLICATION NUMBER:

MCDT7-14

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

24 February 2014

HEARD AT:

Mareeba

DECISION OF:

Magistrate Braes

DELIVERED ON:

28 February 2014

DELIVERED AT:

Mareeba

ORDERS MADE:

1. Application dismissed.

CATCHWORDS:

MINOR CIVIL DISPUTE - residential tenancy - notice to leave with/without grounds - end of tenancy

Residential Tenancies and Rooming Accommodation Act 2008 (Qld)

Lamont v Ray White Birkdale [2011] QCATA 235
Lowe v Aspley [2010] QCATA 59

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 (Qld) (QCAT Act).

REASONS FOR DECISION

I have before me an application for termination of a residential tenancy.

In this matter the onus of proof is upon the Applicant to establish the claim, and the standard of proof is on the balance of probabilities; that is, which version of events I find more probable.

Although the cause of action arises under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the Act) proceedings are conducted under the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

In considering the evidence, it is my function to make such order as I consider to be fair and equitable to both parties, after considering all evidence and after considering natural justice, and I proceed on that basis.

In this matter the parties were given every opportunity to settle the dispute, but they were unable to do so.

I do not propose to traverse by way of comments, the evidence given, in any detail at all.

The Applicant is represented by Mareeba Property Management, Mr Cavanagh and Mrs Carabot appearing at the final hearing of the matter. The Respondents appeared unrepresented.

The agreement the subject of the dispute is a tenancy agreement entered into on 26 July 2013 in respect of premises situated at 5 Gallo Drive Mareeba for a period starting on 26 July 2013 and ending 25 January 2014.

The tenancy agreement discloses the lessor as “G & M Cuda”. It is apparent this is a reference to Mr John Cuda and Ms Malvina Cuda the owners of the property. The application for termination has been brought in the name of Mr John Cuda only.

After the matter was first adjourned to enable Mr Cavanagh to respond to the Respondents submissions an application was lodged with the Tribunal by Mr Cavanagh seeking to amend the application by adding Ms Malvina Cuda as an Applicant.

The grounds of that application are:-

“That Ms Malvina Cuda be recognised and joined as part owner of the property 5 Gallo Drive Mareeba, and wish to correct an amend the mistake on the previous lodged application T 7-14. Ms Malvina Cuda is aware of the current tribunal hearing and has authorised Mareeba Property Management verbally to lodge the termination order”

“The documents, I, Sam Robert Cavanagh refered…

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 Cuda v Moriconi

Details

AGLC: Cuda v Moriconi [2014] QCAT 83
Case: [2014] QCAT 83
Decision Date

CaseChat Overview and Summary

In the case of Cuda v Moriconi, John Cuda, the applicant, sought to terminate a residential tenancy agreement with Graziano and Vilma Moriconi, the respondents, by applying to the Queensland Civil and Administrative Tribunal (QCAT). The tenancy was for premises located at 5 Gallo Drive, Mareeba, for a fixed term starting on 26 July 2013 and ending on 25 January 2014. The primary legal issue was whether the notice to leave issued by the applicant's agent was valid and, consequently, whether QCAT could grant the termination order despite any procedural flaws.

The court began by noting the onus of proof lay on the applicant to establish his claim on the balance of probabilities. The court also highlighted the importance of strict compliance with the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the Act) when terminating a tenancy. The applicant argued that the notice to leave was valid and sought to join Ms Malvina Cuda as a co-applicant, citing a clerical error in the initial application. The respondents contested the validity of the notice, suggesting that the agent had acted out of retaliation for their insistence on proper compliance with legislative requirements.

The court examined the form and content of the notice to leave, finding it was incorrectly marked as a notice "with grounds" rather than "without grounds." This classification was crucial because a notice without grounds does not need to specify particular grounds under the Act. The court also considered the timing and context of the notice, noting that it was issued shortly after the respondents had challenged an inspection notice, raising suspicions of retaliatory action. However, the court found insufficient evidence to conclude the notice was retaliatory.

The court concluded that the notice was invalid because it did not comply with the statutory requirements for notices at the end of a fixed-term tenancy. The court found that the notice should have been given "without grounds" and highlighted that the consequences of terminating a tenancy are serious and cannot be taken lightly if strict compliance with the law is not followed. Given the invalid notice and the overall circumstances of the case, the court dismissed the application for termination, finding it inappropriate to grant the order despite the applicant's efforts to comply with the Act.

Orders