Jim McKeering Real Estate v Buchanan

CITATION: Jim McKeering Real Estate v Buchanan
 [2014] QCATA 109

PARTIES:	John Walter McKeering t/as Jim McKeering Real Estate (Applicant/Appellant)
v
Scott Nathan Buchanan (Respondent)

APPLICATION NUMBER: APL096-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe, OAM

DELIVERED ON: 6 May 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Leave to appeal granted.

2.    Appeal allowed.

3.    The decision of 10 January 2014 is set aside.

4.    John Walter McKeering shall file and serve submissions as to what order he now seeks from the Tribunal by 21 May 2014.

5.    Scott Nathan Buchanan may file and serve submissions in reply by 4 June 2014.

6.    The application will be determined by a member of the Tribunal by written submissions from the parties, without an oral hearing, not before 4 June 2014.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where notice to leave without grounds – where tenant alleged retaliatory action – where no application to set aside notice – where lessor not at the hearing to give evidence – whether breach of procedural fairness – whether tenant still had right to argue retaliatory action – whether grounds for leave to appeal

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 291, 292, 341(2)

Pickering v McArthur [2005] QCA 294
Lowe v Aspley [2010] QCATA 59

APPEARANCES and REPRESENTATION (if any):

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

1. Mr Buchanan was a long term tenant of a property managed by Mr McKeering. By September 2013, he was on a periodic tenancy. On 27 September 2013, Mr McKeering and the owner inspected the premises. Later that day, Mr McKeering issued a notice to leave without grounds.

2. Mr Buchanan did not leave, so Mr McKeering filed an application for termination of Mr Buchanan’s tenancy. An Adjudicator dismissed that claim because, at the hearing, Mr Buchanan gave evidence that the notice to leave was retaliatory.

3. Mr McKeering wants to appeal the learned Adjudicator’s decision. He says that, if Mr Buchanan truly thought the notice was retaliatory, he should have applied to the tribunal under s 292 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). He says that, if Mr Buchanan had followed that course, he would have been in a position to present evidence from the owner in response to Mr Buchanan’s evidence.

4. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:

   There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an…