Kelly v Healey & Shearer

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Kelly v Healey & Shearer  [2023] QCATA 146

PARTIES:

PRUDENCE KELLY 

(applicant/appellant)

v

OWEN HEALEY
(FIRST RESPONDENT)

AND

JESSICA SHEARER

(second respondent)

APPLICATION NO/S:

APL190-23

ORIGINATING APPLICATION NO/S:

MCDT33/23 (Beaudesert)

MATTER TYPE:

Appeals

DECISION MADE: 

23 October 2023

REASONS DELIVERED ON:

6 November 2023

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

IT IS THE DECISION OF THE APPEAL TRIBNAL THAT:

1.     The application for miscellaneous matters filed 28 September 2023 by the applicant is refused.

2. The application for leave to appeal or appeal filed 23 June 2023 is dismissed pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where application for a termination order based on repeated breaches – where tribunal refused to make the order because the repeated breaches were not remedied – where grounds of appeal assert error of law – where application for leave to appeal or appeal lacks substance as it is based upon the applicant’s misunderstanding of sections 293 and 299 of the Residential Tenancies and Rooming Accomodation Act 2008 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 47, s 143

Residential Tenancies and Rooming Accomodation Act 2008 (Qld) s 184D, s 184E, s 281, s 293, s 299, s 325, s 326, schedule 1

Cachia v Grech [2009] NSWCA 232

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

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

What is this application about?

1. Ms Kelly sought to evict her tenants, Mr Healey and Ms Shearer, for having up to three dogs at the property they rented from her, including at least one living inside the home, where the tenancy agreement only permitted the tenants to have one outside dog.

2. Several Form 11 Notices to remedy breach were issued to the tenants alleging breach of the tenancy agreement for exceeding the number of approved pets residing at the tenancy, including notices dated 7 February 2023, 6 March 2023, 21 March 2023, and 9 May 2023.

3. By an application for a minor civil dispute – residential tenancy dispute, filed on 12 May 2023 Ms Kelly sought a termination order and warrant pursuant to section 299 based upon the tenants’ repeated breaches.

4. Although Mr Healey and Ms Shearer denied breaching their agreement, saying that any excess animals seen at the property were only temporarily visiting:

   (a)photographs attached to the application clearly establish that more than one dog was residing at the tenancy, and

   (b)they filed a counter-application seeking approval to have three dogs at the…