King v Cursten Pty Ltd

[2012] QCATA 127

CITATION: King v Cursten Pty Ltd [2012] QCATA 127

PARTIES:	Paul Bernard King (Applicant/Appellant)
v
Cursten Pty Ltd trading as Jensen Property Mark Reinhard King (Respondent)

APPLICATION NUMBER: APL357-10

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 27 July 2012

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal is refused.

CATCHWORDS:

Residential Tenancy – whether the agreement between the parties constituted a residential tenancy under the Residential Tenancies and Rooming Accommodation Act 2008

Queensland Civil and Administrative Tribunal Act2009, s 142(3)
Residential Tenancies and Rooming Accommodation Act2008

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Mark King is the owner of a residential property at 677 Grandview Road, Pullenvale.  He has owned the property for about 30 years.  Paul King, the applicant, and Mark King are brothers.  Some years prior to 2010 Mark permitted his father to reside in the property.  Paul moved into the property to care for his father some years prior to his father’s death in September 2010.  He refused to leave the property.

1. Mark then brought a proceeding in the minor civil disputes jurisdiction for a warrant of possession subsequent to the Tribunal making a termination order on 15 December 2010.  The warrant was to take effect on 15 December 2010 for a period of 14 days. 

1. From that decision, Paul filed an application for leave to appeal or appeal on 15 December 2010.  His primary and only ground of appeal is that the making of the termination order and the issuing of the warrant was beyond the jurisdiction of the Tribunal because despite the finding that there was a residential tenancy agreement between Mark and Paul, in circumstances where there was no evidence of an express residential tenancy, nor did the evidence support an implied residential tenancy agreement. 

1. Therefore, the issue in the appeal is in rather short compass that is, whether there existed between them a residential tenancy agreement.

1. The learned Member who heard the original minor civil dispute proceeding was concerned with this very issue.  Very early in the proceeding he raised a query as to the basis of the application for the termination order and sought particulars of the residential tenancy agreement relied upon to support such an order.  The evidence was given by Mark that there was an agreement between himself, Paul and his father that Paul could move into the property to care for his father.  Paul did this and continued there for two years prior to his father passing away.  Although that was disputed by Paul, the learned Tribunal Member, when considering the evidence from both parties accepted Mark King’s evidence on the point.  He said:

“I accept the evidence of Mark King that he did agree with his father to allow Paul King to be on the property for two years before his father passed away, and I further accept the evidence that while no rent was payable, Mr Paul King has remained there for two years, and that he has been given notice, pursuant to Form 12, under the relevant Act that the property is unliveable.”

1. By doing so he found that the agreement fell within the definition of residential tenancy agreement where a person gives to someone else a right to occupy residential premises as a residence.[1]  That finding was based on the evidence given by both parties during the course of the hearing.  The conclusion reached by the learned Member was therefore clearly open on that evidence. 

   [1]        Residential Tenancies and Rooming Accommodation Act 2008, s 12.

1. As this is an appeal from a minor civil dispute proceeding[2] leave of the Tribunal is necessary.  Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

   [2] Section 142(3).

1. Although the evidence as to the circumstances of the residential tenancy agreement is somewhat vague, the learned Member did the best he could in the circumstances and it came to the conclusion he did.  He made reference to the definition of residential tenancy agreement in the Residential Tenancies and Rooming Accommodation Act 2008 and found, on the facts, that the agreement fell within those provisions.  I am not satisfied that any error has been demonstrated by the learned Member.  In those circumstances, leave to appeal is refused.