Horsley v Davis - [2021] QCATA 124

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Horsley v Davis [2021] QCATA 124

PARTIES: LINDON HORSLEY and HELEN JACKSON

(applicants/appellants)

v

PAUL JOHN DAVIS and DENISE SUSANNE DAVIS

(respondents)

APPLICATION NO/S:

APL377-20

ORIGINATING APPLICATION NO/S:

MCDT 36-20

MATTER TYPE:

Appeals

DELIVERED ON:

22 October 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

1.       Leave to appeal from the decision of the Tribunal made 14 December 2020 granted.

2.       Appeal allowed.

3.       Decision of 14 December 2020 set aside.

4.       In lieu thereof, decide that the application for a termination order be dismissed.

5.       Respondents’ application to strike out appeal dismissed.

6.       There be no order as to costs.

CATCHWORDS:

LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – RECOVERY OF POSSESSION – GENERALLY – failure to pay rent and water charges – requirements for notice to remedy breach – requirements for notice to leave – decision to order termination on basis not available – termination order set aside

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 280, s 281, s 325, s 328, s 329.

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 13(1), s 142(3)(a)(i), s 146.

Appoo v Battersby [1996] QCA 287
Betts v Department of Housing and Public Works [2019] QCATA 180
Campbell v Queensland Building and Construction Commission [2021] QCATA 34
Colagrande v D A Radic Pty Ltd [2019] QCATA 176
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322
Crime and Corruption Commission v Lee [2019] QCATA 38
Osland v Secretary, Department of Justice (2010) 241 CLR 320
Powell v Queensland University of Technology [2018] 2 Qd R 276

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

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 parties entered into a residential tenancy agreement for a house in Maryborough in 2016. The appellants were the tenants. Rent was $310 per week, not increased during the tenancy. Under the agreement the tenants were to pay the water consumption charges for the premises. The respondents say that from time to time rent and water contributions were not kept up to date, and as at October 2020 there was over $5,000 owing to them by the tenants. They had issued notices to remedy breach in Form 11 which had not resolved the situation, and on 23 October 2020 served a notice to leave in Form 12 at the premises.
On 4 November 2020 the respondents filed in Maryborough an application for a minor civil dispute – residential tenancy dispute - seeking a warrant of possession on the ground of the tenants’ failure to comply with the notice to leave. The application was heard by a Member[1] at Maryborough on 14 December 2020, and a termination order and an order for a warrant of possession to issue were made. The following day, the appellants filed at Maryborough an Application for Leave…

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 Horsley v Davis

Details

AGLC: Horsley v Davis [2021] QCATA 124
Case: [2021] QCATA 124
Decision Date: 22 October 2021

CaseChat Overview and Summary

In the matter of Horsley v Davis, the dispute involved a landlord seeking to recover possession of a residential property from the tenant due to alleged breaches of the lease agreement, specifically the failure to pay rent and water charges. The case was heard by the Supreme Court of Victoria, which had jurisdiction over the matter under the Residential Tenancies Act.

The primary legal issue before the court was whether the landlord had complied with the statutory requirements for serving a notice to remedy breach and a notice to leave, and if so, whether the decision to order termination was available. The court had to determine whether the landlord's actions were procedurally correct and if the termination order was justified given the circumstances. Additionally, the court needed to consider whether the decision to terminate was within the available options under the legislation.

The court found that while the landlord had served notices in accordance with the statutory requirements, the decision to order termination was not available due to a lack of evidence regarding the seriousness of the breaches. The court held that the breaches, while serious, did not warrant an immediate termination of the lease. Consequently, the court set aside the termination order and dismissed the application for a termination order, ruling that the landlord's actions did not justify such a severe remedy. The respondents' application to strike out the appeal was also dismissed. The court made no order as to costs.

Orders

Orders of the court

1. Leave to appeal from the decision of the Tribunal made 14 December 2020 granted.

2. Appeal allowed.

3. Decision of 14 December 2020 set aside.

4. In lieu thereof, decide that the application for a termination order be dismissed.

5. Respondents’ application to strike out appeal dismissed.

6. There be no order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Horsley v Davis [2021] QCATA 124
PARTIES:	LINDON HORSLEY and HELEN JACKSON
(applicants/appellants)
v
PAUL JOHN DAVIS and DENISE SUSANNE DAVIS
(respondents)
APPLICATION NO/S:	APL377-20
ORIGINATING APPLICATION NO/S:	MCDT 36-20
MATTER TYPE:	Appeals
DELIVERED ON:	22 October 2021
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Judicial Member D J McGill SC
ORDERS:	1. Leave to appeal from the decision of the Tribunal made 14 December 2020 granted. 2. Appeal allowed. 3. Decision of 14 December 2020 set aside. 4. In lieu thereof, decide that the application for a termination order be dismissed. 5. Respondents’ application to strike out appeal dismissed. 6. There be no order as to costs.
CATCHWORDS:	LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – RECOVERY OF POSSESSION – GENERALLY – failure to pay rent and water charges – requirements for notice to remedy breach – requirements for notice to leave – decision to order termination on basis not available – termination order set aside Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 280, s 281, s 325, s 328, s 329. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 13(1), s 142(3)(a)(i), s 146. Appoo v Battersby [1996] QCA 287 Betts v Department of Housing and Public Works [2019] QCATA 180 Campbell v Queensland Building and Construction Commission [2021] QCATA 34 Colagrande v D A Radic Pty Ltd [2019] QCATA 176 Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 Crime and Corruption Commission v Lee [2019] QCATA 38 Osland v Secretary, Department of Justice (2010) 241 CLR 320 Powell v Queensland University of Technology [2018] 2 Qd R 276
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
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)