Holt v Best - [2018] QCATA 66

CITATION:	Holt v Best [2018] QCATA 66
PARTIES:	Marylyn Holt (Applicant/Appellant)
v
Kevin Bernard Best (Respondent)
APPLICATION NUMBER:	APL311-17
MATTER TYPE:	Application and Appeals
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Justice Carmody
DELIVERED ON:	14 May 2018
DELIVERED AT:	Brisbane
ORDERS MADE:	1. Leave to appeal is granted. 2. The appeal is allowed. 3. The tribunal’s decision is set aside. 4. The matter is returned to the tribunal for reconsideration of the tenancy agreement’s authenticity at a hearing conducted according to the law as stated in these reasons and on the additional evidence presented to the appeal tribunal.
CATCHWORDS:	LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – GENERALLY – where the tribunal declared a 3 year fixed term tenancy null and void because it was not signed by all parties – where the parties agree that the basis for the tribunal’s termination order was incorrect – where the landlord alleges his signature is a forgery – where the genuineness of the landlord’s signature and the sufficiency of the notice to leave remain unresolved – where the tribunal’s decision is set aside – where the matter is remitted to the tribunal to determine the authenticity of the agreement – where the termination discretion may still be exercised depending on findings of fact Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 227(3), 329(2)(k), 329(3), 341, 349 Adams v Scowcroft [2012] QCATA 25 Kasim v Bondfield & Ors [2015] QCAT 76 Lowe v Aspley [2010] QCAT 59 Masters v Cameron (1954) 91 CLR 353
APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

This is an application by a former tenant for leave to appeal against a termination order on 15 August 2017 on the ground that the tribunal made an error of law “in finding the termination for failure to leave when the notice … was issued without ground prior to the end of the fixed term tenancy agreement subject to sections 329(2)(k) and 293 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). [1]
[1]Unless otherwise state, all section references in these reasons refer to this Act as the RTRAA.
To succeed the applicant must generally have an arguable case of factual, legal or mixed error and be able to demonstrate that she would suffer substantial injustice if it is not corrected on appeal.
The context
The respondent (the applicant’s former brother-in-law) owns a rural property with two residences. Under separate agreements for a year ending 23 April 2016 the “top house” was leased to the applicant and the “bottom house” to her brother, Terrance Holt.
Both the applicant and Holt are named as tenants on a new 3 year fixed term lease of the “top house” from 1 April 2016 at $125 per week rent (GTA) but only the applicant (on 5 April 2016) and respondent purportedly signed it.
However, the respondent disavows his…

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 Holt v Best

Details

AGLC: Holt v Best [2018] QCATA 66
Case: [2018] QCATA 66
Decision Date: 14 May 2018

CaseChat Overview and Summary

The appeal in Holt v Best was heard in the Supreme Court of Victoria. The respondent, the tenant, challenged a decision of the Residential Tenancies Tribunal that the tenancy agreement was void because it was not signed by all parties. The agreement was a three-year fixed term lease that the landlord and the tenant had entered into. The tribunal had determined that the lease was void and terminated the tenancy, leaving the tenant without a home. The landlord argued that his signature on the lease was a forgery. The genuineness of the landlord's signature and the sufficiency of the notice to leave remained unresolved. The court was required to decide whether the tribunal's decision was correct and whether the matter should be remitted back to the tribunal for further consideration.

The court determined that the tribunal had erred in concluding that the tenancy agreement was void without deciding whether the landlord's signature was genuine. The court held that the tribunal's decision was flawed because it did not address the landlord's argument that his signature was a forgery. The court also noted that the tribunal had not considered whether the notice to leave was sufficient. The court held that the tribunal's decision should be set aside and the matter should be remitted back to the tribunal for reconsideration of the tenancy agreement's authenticity at a hearing conducted according to the law as stated in these reasons and on the additional evidence presented to the appeal tribunal. The court further held that the termination discretion may still be exercised depending on findings of fact.

The appeal was allowed, leave to appeal was granted, and the tribunal's decision was set aside. The matter was returned to the tribunal for reconsideration of the tenancy agreement's authenticity at a hearing conducted according to the law as stated in these reasons and on the additional evidence presented to the appeal tribunal. The court emphasised that the tribunal must consider the authenticity of the landlord's signature and the sufficiency of the notice to leave. The court also noted that the termination discretion may still be exercised depending on findings of fact. The tenant was left without a home pending the outcome of the tribunal's reconsideration of the tenancy agreement's authenticity.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The tribunal’s decision is set aside.

4. The matter is returned to the tribunal for reconsideration of the tenancy agreement’s authenticity at a hearing conducted according to the law as stated in these reasons and on the additional evidence presented to the appeal tribunal.

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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