JNL Management Pty Ltd v McKinnon

[2024] QCATA 121

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

JNL Management Pty Ltd v McKinnon [2024] QCATA 121

PARTIES:

JNL MANAGEMENT PTY LTD

(applicant/appellant)

v

LORETTA CARMEN MCKINNON

(respondent)

APPLICATION NO/S:

APL197-23

ORIGINATING APPLICATION NO/S:

MCD 2995/22

MATTER TYPE:

Appeals

DELIVERED ON:

11 November 2024

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

1.     Leave to appeal is granted.

2.     The decision of the Tribunal dated 5 June 2024 is set aside.

3.     The application for minor civil dispute – residential tenancy matter be listed as an urgent tenancy dispute before a different adjudicator.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – JURISDICTION – LEAVE TO APPEAL – where applicant commenced a minor civil dispute proceeding seeking an order for a warrant of possession as a result of the respondent’s failure to leave under a tenancy agreement – where contested hearing – where proceedings brought in the Supreme Court by the respondent in respect of a contract to purchase the subject property from the applicant – where minor civil dispute proceeding adjourned several times pending the outcome of the Supreme Court proceedings – where minor civil dispute proceeding ultimately dismissed without notice to the applicant – whether applicant entitled to be heard on the proposed dismissal – whether denial of procedural fairness – whether error of law and grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act2009, s 142(3)(a)(i)

Rintoul v State of Queensland & Ors [2018] QCA 20.

Terera & Anor v Clifford [2017] QCA 181

APPEARANCES & REPRESENTATION: 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

1. On 30 June 2023 the appellant filed an application for leave to appeal or appeal from a decision in the minor civil disputes jurisdiction of the Tribunal made on 5 June 2023. That decision related to a residential tenancy dispute between the appellant, the property owner, and the respondent as the tenant. The decision under appeal was to dismiss the applicant’s application for a warrant of possession for, inter alia, failure to leave pursuant to a notice issued under the Residential Tenancy and Rooming Accommodation Act 2008 (“RTRA Act”).

2. The reason for the dismissal was because when the primary application in the minor civil dispute jurisdiction was filed on 28 November 2022, there had been concurrent proceedings in the Supreme Court of Queensland in relation to the property brought by the respondent. The respondent had entered into a contract to purchase the property from the applicant but the sale did not proceed because, it seems, the respondent’s financier was not in a position to settle on the completion date. As a consequence the applicant/seller elected to terminate the contract and the deposit was forfeited.

3. The material filed in the minor civil dispute proceeding, and the appeal, indicate that those proceedings were protracted and continued well into 2024.…