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

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.

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.

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.

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

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…

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 King v Cursten Pty Ltd

Details

AGLC: King v Cursten Pty Ltd [2012] QCATA 127
Case: [2012] QCATA 127
Decision Date: 27 July 2012

CaseChat Overview and Summary

The matter of King v Cursten Pty Ltd came before the court to determine whether an agreement between the parties constituted a residential tenancy under the Residential Tenancies and Rooming Accommodation Act 2008. The plaintiff, King, alleged that the agreement with the defendant, Cursten Pty Ltd, constituted a residential tenancy, while the defendant argued that it was a service agreement. The court was required to decide whether the arrangement between the parties fell within the definition of a residential tenancy under the Act.

The legal issue before the court was whether the agreement between the parties constituted a residential tenancy. The court had to consider the definition of a residential tenancy under the Act, which includes agreements where a person occupies premises in return for payment. The court also had to consider the nature of the agreement between the parties, including the terms of the agreement and the relationship between the parties.

The court found that the agreement between the parties did not constitute a residential tenancy. The court held that the agreement was a service agreement rather than a residential tenancy. The court found that the agreement did not fall within the definition of a residential tenancy because the plaintiff did not occupy the premises in return for payment. The court held that the plaintiff was a service provider who provided services to the defendant in exchange for payment. The court further held that the relationship between the parties was that of a contractor and a client rather than a landlord and tenant. The court found that the agreement did not confer the rights and obligations of a residential tenancy under the Act.

The court refused leave to appeal. The court held that the appeal did not raise a question of law of general public importance or any other ground for leave to appeal. The court held that the appeal was unlikely to succeed and that there were no other compelling circumstances that warranted the grant of leave to appeal. The court dismissed the appeal and affirmed the decision of the primary judge.

Orders

Orders of the court

Leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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