Elvin v Teague & Teague - [2021] QCAT 48

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Elvin v Teague & Teague [2021] QCAT 48

PARTIES: DENTON GRAHAM ELVIN

(applicant)

v

BERNADETTE TEAGUE
KEITH TEAGUE

(respondents)

APPLICATION NO:

MCDT228-20

MATTER TYPE:

Residential tenancy matters

DELIVERED ON:

5 February 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Lember

ORDERS:

1. The application to stay the decision of 10 December 2020 is refused.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – reopening application – whether stay should be granted pending determination of reopening application

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 138, s 138A, s 139, sch 3

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 92, r 93

Bruce v Ridgway [2020] QCATA 95

Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347

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

Summary

On 10 December 2020, the learned adjudicator made the following orders:
The residential tenancy agreement between the parties be terminated as from midnight on 31 January 20221 on the grounds of Failure to Leave. A Warrant of Possession is to issue authorising a police to enter the premises... to take effect on 1 February 2021 and remain in effect for fourteen (14) days, to expire on 15 February 2021.
On 27 January 2021, the respondent tenants filed an application to stay the decision made on 10 December 2020, as well as an application to reopen it.
The application to stay the decision is the application that is currently under consideration.

Jurisdiction

The objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’)[1] include to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick, and, to that end, s 4 of the QCAT Act requires the Tribunal, among other things, to:
(a)encourage the early and economical resolution of disputes before the Tribunal;[2] and
(b)ensure proceedings are conducted in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice.[3]
[1]Section 3(b) of the QCAT Act.
[2]Ibid s 4(b).
[3]Ibid s 4(c).
An application to reopen a decision is not an appeal of the decision made.
Section 138 of the QCAT Act allows a party to a proceeding to apply to reopen the proceeding if a “reopening ground” exists.
The two reopening grounds are limited to:
(a)that a party did not appear at the hearing and had reasonable excuse for failing to do so; or
(b)that a party would suffer substantial hardship if the proceeding was not reopened because significant new evidence not available at the hearing has arisen.[4]
[4]Ibid sch 3.
Under r 92 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) an application for reopening must be filed within 28 days of the relevant decision – the respondent’s reopening application was not -…

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 Elvin v Teague & Teague

Details

AGLC: Elvin v Teague & Teague [2021] QCAT 48
Case: [2021] QCAT 48
Decision Date

CaseChat Overview and Summary

Denton Graham Elvin has applied to the Queensland Civil and Administrative Tribunal for a stay of a decision made by the Tribunal on 10 December 2020. Bernadette Teague and Keith Teague, the respondents, have applied to reopen the decision on the grounds that new evidence has arisen since the decision was made. The application to stay the decision is currently under consideration. The Tribunal has considered the application to stay in light of the application to reopen. The decision was made on the basis that the residential tenancy agreement between the parties was to be terminated as from midnight on 31 January 2021 on the grounds of Failure to Leave. A Warrant of Possession was to issue authorising a police to enter the premises to take effect on 1 February 2021 and remain in effect for fourteen days, to expire on 15 February 2021. The respondents have applied to reopen the decision on the grounds that new evidence has arisen since the decision was made. This evidence includes that members of the tenants’ family include an adult and a child with special needs; that they have been trying to get the owner of the property, the applicant, to sell them the property but he refused to name a price; and that the house needs extensive repairs. The respondents went on to say that the applicant owes them money for repairs in the approximate sum of $1,500.00. The Tribunal found that the respondents had not established that they had a good arguable case for reopening the decision. The Tribunal also found that the respondents had not established that they would be disadvantaged if the stay was not granted to a greater extent than the applicant would be disadvantaged if the stay was granted. The application to stay the decision is therefore refused. The application to reopen the decision will be considered separately on its merits.

Orders