Essam & Miles v Elvin

Case [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…

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Details
AGLC
Essam & Miles v Elvin [2023] QCATA 128
Case
[2023] QCATA 128
Decision Date

CaseChat Overview and Summary

The applicants, Essam & Miles, appealed a decision by the Tribunal to issue a termination order and warrant of possession, following a Form 12 notice to quit under the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA). The lessors, Mr Elvin, had filed the Form 12 outside the prescribed time but were granted an adjournment by the Tribunal to file a new Form 12 within the same proceedings. The applicants challenged the Tribunal’s jurisdiction to waive procedural deficiencies and to make the orders, including the adjournment, absent fresh proceedings.

The court had to determine whether the Tribunal had jurisdiction to grant the adjournment and issue the termination order and warrant of possession. Further, the court examined whether the Tribunal’s decision that a Form 12 filed in accordance with the RTRA cannot be resisted was correct. The applicants also argued that they were not given the opportunity to present any case resisting the termination order, raising issues of procedural fairness and potential error of law. The court needed to decide if section 337(3) of the RTRA required the consideration of matters in the exercise of the discretion to make the order.

The Court found that the Tribunal did not have jurisdiction to grant the adjournment and make the orders in the circumstances presented. The procedural deficiencies in the filing of the Form 12 were significant and could not be waived by the Tribunal. Additionally, the applicants were denied procedural fairness as they were not given the opportunity to present any case resisting the termination order. The Court concluded that the Tribunal’s decision was flawed and set aside the orders made by the Tribunal. The application for a termination order filed by Mr Elvin on 8 June 2023 was struck out.

The court granted the applicants leave to appeal, allowed the appeal, set aside the order for adjournment made by the Tribunal on 20 June 2023, and set aside the order for termination of the residential tenancy and the order issuing a warrant of possession made by the Tribunal on 14 July 2023. In substitution for the orders set aside, the court ordered that the application for a termination order filed by Mr Elvin on 8 June 2023 be struck out.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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