Essam & Miles v Elvin

[2023] QCATA 128

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Essam & Miles v Elvin [2023] QCATA 128

PARTIES:

KARLEY ESSAM

JOZEPH MILES

(applicants)

v

GRAHAM ELVIN

(respondent)

APPLICATION NO/S:

APL224-23

ORIGINATING APPLICATION NO/S:

MCDT156/23 (Townsville)

MATTER TYPE:

Appeals

DELIVERED ON:

23 October 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Hon Peter Murphy SC, Judicial Member

ORDERS:

1.     The applicants are granted leave to appeal.

2.     The appeal is allowed.

3.     The order for adjournment made by the Tribunal on 20 June 2023 is set aside.

4.     The order for termination of the residential tenancy and the order issuing a warrant of possession made by the Tribunal on 14 July 2023 is each set aside.

5.     In substitution for the orders set aside, order that the application for a termination order filed by Mr Elvin on 8 June 2023 be struck out.

CATCHWORDS:

LANDLORD AND TENANT – TERMINATION OF THE TENANCY – BY NOTICE TO QUIT – VALIDITY – WHAT NOTICE REQUIRED – LENGTH OF NOTICE REQUIRED – where the lessees of residential premises appeal the decision of the Tribunal to issue a termination order and warrant of possession pursuant to a Form 12 notice to leave under the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA) – where the lessor initially filed the forms outside of the prescribed time but was granted an adjournment by the Tribunal to file a “new” Form 12 within the same proceedings – whether the Tribunal had the jurisdiction to waive the procedural deficiencies – whether the Tribunal had the jurisdiction to make the orders, including the adjournment, absent fresh proceedings

LANDLORD AND TENANT – TERMINATION OF THE TENANCY – BY NOTICE TO QUIT – GENERALLY – where the Tribunal at first instance indicated that a Form 12 filed in accordance with the RTRA cannot be resisted – where the lessees were not given the opportunity to present any case resisting the termination order – whether procedural fairness was accorded or an error of law occurred – whether s 337(3) of the RTRA requires the consideration of matters in the exercise of the discretion to make the order

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 7

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 280, s 281, s 293, s 337

Lowe v Aspley [2010] QCATA 59, applied

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

1. On 14 July 2023, a Magistrate sitting as the Tribunal at Townsville made an order terminating a residential tenancy agreement between Mr Elvin as lessor and Mr Miles and Ms Essam as tenants. 

2. The order specified the ground for termination as “failure to leave”.  A warrant of possession was issued the same day, to be executed as soon as reasonably practicable.  The warrant expired on 6 August 2023.

3. Ms Essam seeks leave to appeal those orders.  If the application and appeal…