King v TIC Realty (No 1)
[2010] QCATA 75
•23 November 2010
| 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 |
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 ordinary principle[2]. The onus of showing that this is an appropriate case lies upon the applicant[3]. In the course of considering an application for a stay the court will (if it is possible) attempt to form a preliminary assessment of the strength of the appellant’s case[4].
[2] Berry v Green [1999] QCA 213 at [3] (per de Jersey CJ)
[3] Croney v Nand [1999] 2 Qd R 343 at 348
[4] Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322
The QCAT form for an application for a stay invites the applicant to set out the reasons for making a stay order, in numbered paragraphs. Mr King has done that in an attachment in which he denies any breach of the relevant residential tenancies legislation and, therefore, any legal basis for any notice to leave or any finding that he had wrongly failed to leave; that the order made by the adjudicator was ‘unreasonable’; and, that there are other persons living in the premises who are unaware of the issue of the warrant of possession and will need more time to leave once the appeal process is completed.
The claims that the decision to terminate was wrongfully made must, it can reasonably be assumed, have been advanced before the adjudicator who would also have had, therefore, the opportunity to hear from the parties and form views about their credit. It is also not unreasonable to assume that the adjudicator’s decision was based upon findings and conclusions reached upon the evidence about that matter, and the weight of it, and credit findings.
Those reasonable assumptions mean Mr King faces the burden of showing he might be able to set them aside on appeal; but nothing in his submissions suggests any basis for concluding that he has a strong case in his application for leave to appeal or even, indeed, a good arguable case[5].
[5] The test suggested by Jerrard JA in Elphic v MMI General Insurance Ltd [2002] QCA 347
Nothing in the material compels, or even points persuasively to, the conclusion that this is a case which warrants departure from the ordinary principle that the successful party before the adjudicator should retain the rights and benefits of its judgment. For these reasons, the application for a stay was refused.
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