Hornsby v Gray - [2021] QCATA 41

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hornsby & Anor v Gray & Anor [2021] QCATA 41

PARTIES:

ANGELIQUE HORNSBY

(first applicant/appellant)

CRAIG HORNSBY

(second applicant/appellant)

v

KERRIE GRAY

(first respondent)

ASHLEE GRAY

(second respondent)

APPLICATION NO/S:

APL197-20

ORIGINATING APPLICATION NO/S:

MCDT39-20 Maroochydore

MATTER TYPE:

Appeals

DELIVERED ON:

23 March 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

1.   Leave to appeal granted.

2.   The appeal is allowed.

3.   The decision made 10 June 2020 is set aside.

4.   Ashlee Gray must pay Angelique Hornsby and Craig Hornsby the sum of $1,634.29 for claim and allowable costs of $469 within 14 days of judgment.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where two proposed tenants applied to become tenants of a residential property – where one signed – where the other proposed tenant did not – where the lessors’ agent signed the residential tenancy agreement for the lessors – where the tenants subsequently resiled from the agreement – where an Adjudicator found no tenancy had been created – where the Adjudicator failed to consider the claim by the lessors against the tenant who had signed

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 83, r 84

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 12(3)

Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309
Maszlik v Lorraine Palmer t/as Bundaberg Park Lodge [2016] QCATA 94
Sommers v Bycroft [2020] QCATA 55

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52

APPEARANCES & REPRESENTATION:

Applicant:

V Fenwick, Prime Property Sunshine Coast

Respondent:

Self-represented

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

The first respondent, Kerrie Gray, is the mother of the second respondent, Ashlee Gray. Kerrie Gray lived in Sydney and Ashlee Gray in Queensland at the Sunshine Coast.
On 4 November 2019 they both submitted an application to lease a property at Buderim owned by the appellant lessors. Their application was accepted and the lessors’ agent prepared a written residential tenancy agreement in standard form.
Kerrie Gray advised the agents on 4 November 2019 that she intended to stay in Sydney but would help Ashlee Gray with the rental payments of the property at Buderim until Ashlee Gray found someone suitable to share the house with her, at which time she would have the new tenant added to the lease.
Ashlee Gray signed a written tenancy agreement on 12 November 2019.
The agents signed the agreement on 13 November 2019 on behalf of the lessors. The date of commencement was dated as 22 November 2019.
On that same day, 13 November 2019, the agents forwarded the tenancy agreement to Kerrie Gray for signature.
The property was removed from the rental market by the agents.
On 15 November 2019, in response to an enquiry from the…

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 Hornsby v Gray

Details

AGLC: Hornsby v Gray [2021] QCATA 41
Case: [2021] QCATA 41
Decision Date: 23 March 2021

CaseChat Overview and Summary

The appeal involved the parties, Hornsby and Gray, concerning the establishment of a residential tenancy agreement for a property. One proposed tenant signed the agreement, while the other did not. The agent signed the agreement on behalf of the lessors. Later, both tenants withdrew from the agreement. An Adjudicator ruled that no tenancy had been created and neglected to consider the claim against the tenant who had signed. The appeal was brought before the court to address the legal issues arising from this situation.

The primary legal issue the court had to determine was whether the Adjudicator's decision was correct, particularly in regard to the failure to consider the claim against the tenant who had signed. The court also needed to assess whether the appeal was valid and if the Adjudicator had jurisdiction to make the decision. Additionally, the court examined whether the Adjudicator had made an error in law by not considering the signed agreement and the resulting claim.

The court found that the Adjudicator erred in not considering the signed agreement and the claim against the tenant who signed. The court determined that the Adjudicator had jurisdiction to make the decision but made an error in law by neglecting to consider the signed agreement. Consequently, the court allowed the appeal and set aside the Adjudicator's decision. The court ordered that Gray must compensate Hornsby and Hornsby for the claim and allowable costs within 14 days of the judgment.

The final orders included granting leave to appeal, allowing the appeal, setting aside the decision made on 10 June 2020, and requiring Gray to pay Hornsby and Hornsby the sum of $1,634.29 for the claim and allowable costs of $469 within 14 days of the judgment.

Orders

Orders of the court

1. Leave to appeal granted.

2. The appeal is allowed.

3. The decision made 10 June 2020 is set aside.

4. Ashlee Gray must pay Angelique Hornsby and Craig Hornsby the sum of $1,634.29 for claim and allowable costs of $469 within 14 days of judgment.

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	Hornsby & Anor v Gray & Anor [2021] QCATA 41
PARTIES:	ANGELIQUE HORNSBY (first applicant/appellant)
CRAIG HORNSBY (second applicant/appellant)
v
KERRIE GRAY (first respondent)
ASHLEE GRAY (second respondent)
APPLICATION NO/S:	APL197-20
ORIGINATING APPLICATION NO/S:	MCDT39-20 Maroochydore
MATTER TYPE:	Appeals
DELIVERED ON:	23 March 2021
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Howe
ORDERS:	1. Leave to appeal granted. 2. The appeal is allowed. 3. The decision made 10 June 2020 is set aside. 4. Ashlee Gray must pay Angelique Hornsby and Craig Hornsby the sum of $1,634.29 for claim and allowable costs of $469 within 14 days of judgment.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where two proposed tenants applied to become tenants of a residential property – where one signed – where the other proposed tenant did not – where the lessors’ agent signed the residential tenancy agreement for the lessors – where the tenants subsequently resiled from the agreement – where an Adjudicator found no tenancy had been created – where the Adjudicator failed to consider the claim by the lessors against the tenant who had signed Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 83, r 84 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 12(3) Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 Maszlik v Lorraine Palmer t/as Bundaberg Park Lodge [2016] QCATA 94 Sommers v Bycroft [2020] QCATA 55 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52
APPEARANCES & REPRESENTATION:
Applicant:	V Fenwick, Prime Property Sunshine Coast
Respondent:	Self-represented
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)