Harling v Twenty Twenty Pty Ltd t/as Doug Disher Real Estate
[2013] QCATA 336
•13 December 2013
| CITATION: | Harling V Twenty Twenty Pty Ltd t/as Doug Disher Real Estate [2013] QCATA 336 |
| PARTIES: | Iris Haring (Applicant/Appellant) |
| v | |
| Twenty Twenty Pty Ltd t/as Doug Disher Real Estate (Respondent) |
| APPLICATION NUMBER: | APL491 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 13 December 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 11 October 2013 is set aside. 4. The application is dismissed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Ms Haring rented a property through Twenty Twenty Pty Ltd t/as Doug Disher Real Estate. Ms Haring regularly failed to pay her rent on time. The agent issued many Forms 11 Notices to Remedy Breach. Finally, on 22 July 2013, it issued a Form 12 Notice to Leave without grounds. Ms Haring did not leave. The tribunal terminated the tenancy agreement and issued a warrant of possession.
Ms Haring wants to appeal that decision. She says that the correspondence issued by the tribunal was in an incorrect name and to an incorrect address. She says that she was unable to attend the hearing because of a medical condition, so she was not given procedural fairness. She says the agent applied for termination prior to the handover day. She says the Form 12 was retaliatory.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2]Cachia v Grech [2009] NSWCA 232 at 2.
[3]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The agent referred to Ms Haring as “Iris Harding” in its application and listed her address as 37 Soudan St Toowong. The tribunal transferred this information to its database for the purpose of issuing notices. The address for service on the tenancy agreement is 37 Soudan St Toowong. Notices were sent to that address. Ms Haring cannot complain that the tribunal sent the notices to the wrong address.
It is true that the notices were addressed to Ms Iris Harding, not Ms Iris Haring. However, she received a full copy of the agent’s application. The application included copies of the tenancy agreement, many notices and correspondence, all in her correct name. It is inconceivable that Ms Haring did not realise that she was the proper party to the dispute. I consider that Ms Haring was sufficiently identified and there is no error in the tribunal’s procedure that justifies giving leave to appeal.
Ms Haring did not tell the tribunal that she was unable to attend the hearing. She applied for a reopening in which she referred to her disability but she did not provide evidence of the nature of the disability or how it prevented her from attending the hearing. She did not ask to appeal by telephone. The tribunal refused her reopening application. Ms Haring’s submission that she could not attend the hearing because of her medical condition is an appeal against the earlier decision. There is no appeal from a decision about reopening[5]. This ground of the application must fail.
[5]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 139(5).
Ms Haring says that the learned Adjudicator did not correctly apply s 329(2)(k) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) because the handover day nominated in the Form 21 was earlier than the day the fixed term agreement ended.
Section 329(2) states that the handover day for a notice to leave must not be earlier than, in the case of a notice to leave without grounds, the later of 2 months after the notice is given or the day the term of the agreement ends. Ms Haring is correct. The handover day nominated in the notice was not the day the fixed agreement ended but an earlier day. The notice was invalid and the learned Adjudicator was in error.
Leave to appeal should be granted and the appeal allowed. The decision of 11 October 2013 should be set aside. The application is dismissed.
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