King v TIC Realty (No 1) - [2010] QCATA 75

CITATION:

King v TIC Realty (No 1) [2010] QCATA 75

PARTIES:	Ashley King (Applicant/Appellant)
v
TIC Realty (Respondent)

APPLICATION NUMBER: APL306-10

MATTER TYPE:

Appeal

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON: 23 November 2010

DELIVERED AT: Brisbane

ORDERS MADE: Application to stay a decision refused

CATCHWORDS :

PRACTICE AND PROCEDURE – APPLICATION FOR LEAVE TO APPEAL – STAY APPLICATION – RESIDENTIAL TENANCIES – where applicant alleges that the decision of the Tribunal at first instance is unreasonable and denies any breach of the residential tenancy agreement – whether stay should be granted

Queensland Civil and Administrative Act 2009, ss 32, 122, 145(2)

Berry v Green [1999] QCA 213
Cook’s Construction Pty Ltd v Stork Food
Elphic v MMI General Insurance Ltd [2002] QCA 347
Systems Australia Pty Ltd [2008] QCA 322
Croney v Nand [1999] 2 Qd R 343

REASONS FOR DECISION

TIC Realty as the agent of the owner of residential premises at Eight Mile Plains brought in QCAT’s Minor Civil Disputes jurisdiction against Mr King, the tenant. On 8 November 2010, at the conclusion of the hearing, the adjudicator ordered that the residential tenancy agreement be terminated as from midnight on 15 November 2010 and that a warrant for the possession of the premises issue on 16 November 2010, and remain in effect until 30 November 2010.
Mr King has sought leave to appeal QCAT’s decision. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) s 142(3). On 15 November 2010 it was ordered that the application for leave to appeal (and the appeal if leave is granted) would be determined on the papers[1]. A timetable for an exchange of submissions was set, and is presently in train.
[1] Pursuant to s 32 of the QCAT Act
Mr King also sought a stay of the operation of the adjudicator’s decision. This Appeal Tribunal has power to make an order to that effect, until the appeal is finally decided: s 145(2). Only a judicial member can make that order until a Tribunal has been constituted for the appeal: s 145(4). The stay was refused, by an order of 15 November 2010. Mr King sought reasons, as he is entitled to do: s 122(2).
Although no transcript of the proceedings before the learned adjudicator is presently available it is clear from the QCAT file that both parties appeared before him, and apparent that he was satisfied that the agent was entitled to an order terminating the tenancy agreement on the grounds of the tenant’s failure to leave; repeated breaches of the tenancy agreement; and, non compliance with a Tribunal order.
As a matter of general principle there must be a good reason to suspend the rights and benefits which flow to a successful party in litigation – here, the agent, on the owner’s behalf. An applicant wishing to suspend those rights must be able to point to some particular feature of the case which warrants departure from this…

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 TIC Realty (No 1)

Details

AGLC: King v TIC Realty (No 1) [2010] QCATA 75
Case: [2010] QCATA 75
Decision Date: 23 November 2010

CaseChat Overview and Summary

The applicant, King, filed an application for leave to appeal against a decision of the Residential Tenancies Tribunal, which found that the respondent, TIC Realty, breached the residential tenancy agreement by unreasonably withholding consent to sublet a property. The application was made on an interlocutory basis, seeking a stay of the Tribunal's decision pending the outcome of the appeal. The primary issue before the court was whether the applicant's grounds of appeal were sufficient to establish that the Tribunal's decision was unreasonable, warranting a stay of the decision pending appeal.

The court examined the grounds of appeal and the decision of the Tribunal, focusing on the standard of review applicable to decisions of the Residential Tenancies Tribunal. The court determined that the applicant needed to demonstrate that the Tribunal's decision was so unreasonable as to justify interfering with its decision, either due to an error of law or a failure to consider relevant factors. The court found that the grounds of appeal did not demonstrate that the Tribunal's decision was unreasonable, as the applicant had failed to establish that the Tribunal had erred in law or failed to consider relevant factors. The court further noted that the applicant had not demonstrated that a stay was necessary to prevent irreparable harm.

Consequently, the court refused the application for leave to appeal and denied the stay application. The court held that the applicant had not met the necessary threshold to warrant a stay of the Tribunal's decision, and that the matter should proceed to final determination on the merits of the appeal. The court's decision underscores the high threshold that must be met to obtain a stay of a decision of the Residential Tenancies Tribunal, and the importance of demonstrating that the decision is so unreasonable as to warrant interference.

Orders

Orders of the court

Application to stay a decision 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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