Cutbush v Philips

[2011] QCATA 223

CITATION: Cutbush and Anor v Philips and Ors [2011] QCATA 223

PARTIES:	Paul Cutbush Judith Cutbush (Applicants/Appellants)
v
Lawrie Philips t/as Cunungra Realty Rebecca Baigent t/as Cunungra Realty Maree Leach t/as Team Maree (Respondents)

APPLICATION NUMBER: APL165-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 24 August 2011

DELIVERED AT: Brisbane

ORDERS MADE: The application for extension of time is refused.

CATCHWORDS:

Minor Civil Dispute – application for extension of time to file application for leave to appeal and appeal – where substantive application lacks merit – where no satisfactory explanation for delay

Queensland Civil and Administrative Tribunal Act2009, ss 61(1), 143(3)

Hunter Valley Developments Pty Ltd v The Honourable Barry Cohen, Minister for Home Affairs and Environment (1984) FCA 176

Crime and Misconduct Commission v Chapman [2011] QCAT 229

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. In November 2010 the applicants were the tenants of an acreage property at Stringy Bark Road, Tamborine.  The respondents were the property agents for that property.  On 25 November 2010 the Tribunal made orders terminating the residential tenancy agreement, that a warrant for possession issue about the payment of outstanding rent and release of the bond.  The applicants did not attend the hearing.  The Tribunal Member was satisfied that they were given notice of the hearing but simply failed to attend.

1. From that decision the applicants filed an application for leave to appeal or appeal on 11 May 2010.  They received reasons for the decision on 14 February 2011.  An application for leave to appeal must be filed within 28 days after the relevant day.[1]  The relevant day means the day the person is given written reasons for the decision being appealed against.  Therefore, the date upon which the application for leave to appeal ought to have been filed was 15 March 2011.[2]  The application for leave to appeal is out of time and as a consequence the applicants have filed an application to extend or shorten the time for filing the application.[3]

[1] QCAT Act section 143(3).

[2]            Excluding the day upon which the reasons were received.

[3] QCAT Act section 61(1).

1. The usual principles that are applied in an application for extension of time are whether the applicants have an acceptable explanation for the delay, whether it would be fair and equitable in the circumstances to extend time, whether there is prejudice to the respondent if the application were granted and finally the merits of the substantive application.[4]

[4]Hunter Valley Developments Pty Ltd v The Honourable Barry Cohen, Minister for Home Affairs and Environment (1984) FCA 176; Crime and Misconduct Commission v Chapman [2011] QCAT 229.

1. The Applicants have filed extensive submissions in support of the application.  Unfortunately these submissions do not address in any detail the criteria to be applied and in particular any reason why the application for leave to appeal was filed so late.  The submissions are, in essence, a chronology of facts relating to the tenancy at Stringy Bark Road and are of the type which one would have thought would be argued at the hearing on 25 November 2010.  These submissions are not helpful.

1. The applicants complain that the reasons were not received until February however time did not commence to run until receipt of the reasons.  There is some reliance on Mr Cutbush’s illness in November 2010 and the late receipt of a Residential Tenancy Authority investigation report.  This does not satisfactorily explain delay. 

1. The Applicants do not attempt to identify any error on the part of the learned Tribunal Member who gave comprehensive reasons at the conclusion of the hearing on 25 November 2010.  On reading those reasons, she complied with the Residential Tenancies and Rooming Accommodation Act 2008 in making the termination order. No error is apparent. Therefore, it would not be fair and equitable to extend time.

1. There would be prejudice to the respondents if the application were to succeed.  The extensive submissions filed in the appeal do not address any error of law or fact on the part of the learned Member whose decision is under appeal.  It is a regurgitation of all of the facts and circumstances relating to the tenancy which have no relevance, in my view, in the substantive appeal.  Therefore, prejudice to the respondents outweighs the exercise of discretion to grant the extension.

1. Finally, as I have already observed, the appeal has no merit.  The Applicants did not attend the hearing, the learned Member was satisfied that they were aware of the hearing, she made orders consistent with the application of the respondents and complied with the requirements of the Residential Tenancies and Rooming Accommodation Act 2008. She exercised discretion in a judicial fashion in deciding to terminate the tenancy. The applicants have not identified any error on her part which could potentially lead to some prospects of success in the substantive appeal.

1. The appeal lacks merit and to extend time would be prejudicial to the respondent.  I am not satisfied there is sufficient explanation for delay.  Therefore I have come to the conclusion that the application for extension of time must be refused.