King v TIC Realty (No 2)
[2010] QCATA 76
•23 November 2010
| 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 |
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 Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322
The QCAT form for a stay application asks the applicant to set out the reasons for it in numbered paragraphs. Mr King has done so. His primary assertion is, as I understand it, that the dismissal of his proceeding was wrong and the notice to leave he received was, in truth, retaliatory. He also says he would like more time to consider his position, and the opportunity to assert his rights in the appeal process.
Although the learned adjudicator’s reasons are not yet available, in his application for a reopening Mr King said: ‘my previous application was dismissed due to lack of evidence and a poor presentation on my behalf’. That concession, in combination with the reasonable assumption that the learned adjudicator heard evidence and submissions from both parties means that there is nothing in Mr King’s submissions to compel the conclusion that he has anything like a strong case on his appeal or, indeed, an arguable one.
Indeed, the MCD file shows the matter proceeded in a way which gave Mr King ample opportunity to prepare his case. On 30 August 2010 an experienced adjudicator[6] ordered that the agent’s application for possession be adjourned, and that both parties produce all evidence about alleged arrears of rent on the next hearing date, 6 September 2010. On 6 September 2010 it was ordered the tenant pay the rent in arrears up to and including 17 September 2010 and that the application then be adjourned to be re-listed if there was any further default.
[6] Mr Barry of Counsel
In short, there is nothing to suggest any irregularity in the proceedings at first instance, or anything indicating that Mr King has a strong, or even an arguable case that he should have leave to appeal. There is no reason to depart from the ordinary principle, and his application for a stay should be refused.
0