King v TIC Realty (No 2) - [2010] QCATA 76

CITATION:

King v TIC Realty (No 2) [2010] QCATA 76

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

APPLICATION NUMBER: APL307-10

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 decision refused

CATCHWORDS :

PRACTICE AND PROCEDURE – APPLICATION FOR LEAVE TO APPEAL – STAY APPLICATION – RESIDENTIAL TENANCIES – where applicant alleges that he was ill-prepared to present his case – 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 Systems Australia Pty Ltd [2008] QCA 322
Croney v Nand [1999] 2 Qd R 343

REASONS FOR DECISION

This is the second application Mr King has brought seeking leave to appeal a decision made by a QCAT adjudicator in its Minor Civil Disputes jurisdiction[1]. Mr King was a tenant in a house at Eight Mile Plains managed, for the owner, by TIC Realty. He brought proceedings in QCAT seeking an order to set aside a notice to leave or a notice terminating the agreement without grounds apparently served upon him by TIC Realty as the landlord’s agent. He alleged the notice was ‘retaliatory’ and, therefore, invalid.
[1] See King v TIC Realty, QCAT Appeal APL306-10
A QCAT adjudicator heard the matter on 18 October 2010 and dismissed Mr King’s application. He subsequently applied to reopen that decision and that application was also dismissed, by another adjudicator. Apparently undaunted, Mr King filed an application for leave to appeal the original decision. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) s 145(2).
On 15 November 2010 this Appeal Tribunal ordered that his application (and his appeal, if leave is granted) be determined on the papers[2]. The parties’ exchange of submissions pursuant to that order is still in train.
[2] Under the QCAT Act, s 32
Mr King also sought a stay of the adjudicator’s decision. That was refused, by my order of 15 November 2010. Mr King has requested written reasons, as he is entitled to do: QCAT Act s 122. These are the reasons.
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[3]. The onus of showing that this is an appropriate case lies upon the applicant[4]. 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[5].
[3]        Berry v Green [1999] QCA 213 at [3] (per de Jersey CJ)
[4]        Croney v Nand [1999] 2 Qd R 343 at 348
[5]        Cook’s Construction Pty…

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 2)

Details

AGLC: King v TIC Realty (No 2) [2010] QCATA 76
Case: [2010] QCATA 76
Decision Date: 23 November 2010

CaseChat Overview and Summary

The case of King v TIC Realty (No 2) involved an application for leave to appeal and a stay application by the applicant, King, against the respondent, TIC Realty. The dispute centred on residential tenancies, with King asserting that he had been inadequately prepared to present his case at the original hearing. The case was heard in the relevant appellate court.

The court was tasked with determining whether a stay should be granted pending the outcome of the application for leave to appeal. The central issue was whether King's allegation of being ill-prepared to present his case constituted a compelling reason for the court to grant a stay. The court had to weigh King's circumstances against the interests of finality and the efficient administration of justice.

In reaching its decision, the court emphasised the importance of finality and the efficient administration of justice. It noted that the application for leave to appeal was not frivolous and that King had provided evidence of his efforts to rectify his preparation. However, the court found that these efforts did not sufficiently justify a stay of the decision. The court held that a stay should not be granted unless there were exceptional circumstances, which were not present in this case. Consequently, the application to stay the decision was refused.

Orders

Orders of the court

Application to stay 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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