Davoren v Century Twenty One

[2013] QCATA 38

CITATION: Davoren v Century Twenty One [2013] QCATA 38

PARTIES:	Ms Kristy Davoren
v
Century Twenty One

APPLICATION NUMBER: APL395-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 20 February 2013

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal is refused.

CATCHWORDS:

MINOR CIVIL DISPUTE – where previous application for termination – where previous application about retaliatory conduct – where previous application failed for insufficient notice – where new notice to leave – where tenancy terminated without grounds - whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009, s 32

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. Ms Kristy Davoren and her three-year-old son lived in a unit at Mermaid Beach managed by Century Twenty One.

2. In May 2012, Century Twenty One issued a notice to leave. Ms Davoren did not leave so the agent applied for an order terminating the tenancy. Ms Davoren claimed that the notice was retaliatory because she had complained about the condition of the spa and air conditioning. The Adjudicator did not accept that the notice was retaliatory but he did find that the agent had not given Ms Davoren the required two months notice to leave. The application was dismissed.

3. In August 2012, the agent issued another notice to leave. Ms Davoren did not hand over possession. The agent brought another application for termination. Once again, Ms Davoren argued that the agent did not give proper notice and that it had engaged in retaliatory action. The same Adjudicator heard the second application. This time, he found that Ms Davoren had received proper notice and he terminated the tenancy.

4. Ms Davoren has filed an application for leave to appeal. She says that the second notice was also retaliatory and that the learned Adjudicator did not look at the evidence about that issue.

5. Because this is an appeal from a minor civil dispute, Ms Davoren must seek leave to appeal. The Tribunal may grant leave if the dispute raises a question of general importance and the public would benefit from a decision on that question. It may also grant leave if Ms Davoren shows a reasonably arguable case of error and a reasonable prospect that she will obtain substantive relief if the error is corrected.  

6. The transcript shows that the learned Adjudicator did not listen to Ms Davoren’s evidence about retaliatory conduct. There is good reason for that. He had already considered that argument in the June hearing. The only new evidence was a notice to remedy breach that Ms Davoren issued in October 2012, well after the agent issued the notice to leave in August 2012. The learned Adjudicator did not accept that there was new evidence and he concluded that Ms Davoren was trying to re-argue a point that he had already determined. I agree with his conclusion.

1. Ms Davoren has not shown that there is a question of general importance. She has not demonstrated an error in the learned Adjudicator’s decision. She has left the unit so there is no prospect of substantive relief. There is no evidence that Ms Davoren will suffer a substantial injustice if I do not grant leave. I refuse leave to appeal.