Greg Ritchie v Harcourts Broadbeach/Mermaid Waters - [2024] QCATA 15

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Greg Ritchie v Harcourts Broadbeach/Mermaid Waters [2024] QCATA 15

PARTIES:

GREG RITCHIE

(appellant)

v

HARCOURTS BROADBEACH/MERMAID WATERS

(respondent)

APPLICATION NO:

APL226-22

ORIGINATING APPLICATION NO:

MCDT496 of 2022

MATTER TYPE:

Appeal

DELIVERED ON:

15 February 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member PG Stilgoe OAM

ORDERS:

1. 1. Leave to appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where respondent sought to enforce a form 12 (notice to leave) – where appellant claimed they had been tricked into signing a shorter lease – where tribunal had requested the appellant to point to evidence supporting their claim – where appellant failed to adduce supporting evidence – where leave to appeal required – whether appellant was should be granted leave to appeal.

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where fresh evidence filed with application for leave to appeal – where fresh evidence could have been obtained for use at hearing – whether the applicant should be granted leave to adduce fresh evidence.

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 329(j).

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b), s 28(3)(c), s 28(4), s 142(3)(a)(i).

Australian Broadcasting Commission v Bond (1990) 170 CLR 321
Brisbane City Council v Mainsel Investments Pty Ltd [1989] 2 Qd R 204
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294
Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679
Terera & Anor v Clifford [2017] QCA 181
Waterford v The Commonwealth (1987) 163 CLR 54

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

In July 2021, Greg Ritchie signed a six-month fixed term tenancy agreement for a property in Broadbeach Waters.
In January 2022, the fixed term tenancy expired and lapsed into a periodic tenancy. Shortly after, Harcourts Broadbeach/Mermaid Waters, through its agent Steven Kowaltzke, issued Mr Ritchie with a Notice to Leave (Form 12) without grounds, providing two months’ notice for the required handover date.[1]
[1] Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 329(j).
Mr Ritchie did not vacate the property on the date required, prompting Harcourts to apply to the Tribunal for the termination of the tenancy agreement and a warrant of possession.
The learned Adjudicator found in Harcourts’ favour, and made orders terminating the tenancy, and issuing a warrant of possession against the property.
Despite some procedural delays which are not relevant to this appeal, Harcourts eventually repossessed the property. Mr Ritchie has not lived at the property since August 2022.
Mr Ritchie now wishes to appeal the tribunal’s decision. He takes…

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.

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Details

Case: [2024] QCATA 15
Decision Date: 15 February 2024

CaseChat Overview and Summary

In the case of Greg Ritchie versus Harcourts Broadbeach/Mermaid Waters, the respondent sought to enforce a form 12 (notice to leave) against the appellant. The appellant claimed that they had been misled into signing a shorter lease than intended, and sought to appeal the tribunal's decision. The tribunal had previously requested the appellant to provide evidence supporting their claim but the appellant failed to adduce such evidence. The appeal to the Queensland Civil and Administrative Tribunal (QCAT) concerned the general principles governing appeals and new trials, specifically whether the appellant was entitled to leave to appeal and, if so, whether they should be granted leave to adduce fresh evidence.

The primary legal issue before the tribunal was whether the appellant was entitled to appeal and, if so, whether leave should be granted. The tribunal considered the general principles governing appeals, the right of appeal, and the circumstances in which leave to appeal should be granted. Additionally, the tribunal examined the issue of whether the appellant should be granted leave to adduce fresh evidence that had not been presented at the original hearing. The tribunal noted that the fresh evidence could have been obtained for use at the hearing, and considered whether this should affect the decision on leave to appeal.

The tribunal found that the appellant was not entitled to leave to appeal. The tribunal held that the appellant had failed to point to any evidence supporting their claim of being misled into signing a shorter lease, and that this failure was a significant error. Furthermore, the tribunal found that the fresh evidence could have been obtained for use at the original hearing, and therefore, the appellant's failure to present it did not warrant leave to appeal. The tribunal concluded that the appellant had not demonstrated any error of law or jurisdiction that would warrant an appeal. Consequently, leave to appeal was refused.

No further orders were made. The tribunal did not grant the appellant leave to appeal or to adduce fresh evidence, and the original decision of the tribunal remained in place. The respondent was entitled to enforce the form 12 (notice to leave) against the appellant, and the appellant's claim of being misled into signing a shorter lease was not accepted.

Orders

Orders of the court

1. 1. Leave to appeal is refused.

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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