Lindon v Ray White Mermaid Waters - [2022] QCATA 163

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION

Lindon v Ray White Mermaid Waters [2022] QCATA 163

PARTIES: mack lindon

(applicant)

v

ray white mermaid waters

(respondent)

APPLICATION NO:

APL290-21

ORIGINATING APPLICATION NO/S:

MCDT1164/21

MATTER TYPE:

Appeals

DELIVERED ON:

2 November 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – RESIDENTIAL TENANCY DISPUTE – termination of lease – where termination is for failure to leave upon expiry of lease – where tenant seeks order for renewal of lease – where absence of jurisdiction to make such order – whether appeal barred by QCAT Act s 139 – where s 139 distinguished - where no error demonstrated in process terminating lease – where application for leave to appeal dismissed

COVID-19 Emergency Response Act 2020 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 Qld) s 32, s 138, s 139
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 293

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Balemi v Ingles [2020] QCATA 58

Devries v Australian National Railways Commission (1993) 177 CLR 472

Fox v Percy (2003) 214 CLR 118

Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135

LemongroveServices Pty Ltd trading as Reimer Winter Williamson Lawyers and Anor v Rilroll Pty Ltd and Ors [2019] NSWCA 174

Nurzenski v B P Builders NQ Pty Ltd [2017] QCAT 67
Orr v Holmes (1948) 76 CLR 632
Robinson v Corr [2011] QCATA 302

Total Driver Pty Ltd & Anor v Hedley [2020] QCATA 81

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Introduction

The present applicant (‘Lindon’) seeks leave to appeal the tribunal’s order, sought by the landlord’s agent (‘White’)[1] and made under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld)[2] terminating his tenure of premises at Mermaid Waters, Gold Coast.
[1]Ray White Mermaid Waters (‘White’), the respondent to the application for leave. White’s locus standi flows from the standard Clause 43 of the Residential Tenancy form 18a.
[2]Section 293.

Case history

The history of these proceedings is tortuous: Commenced in August 2021, listed for trial in September following, they were then struck out when the parties failed to appear on 9 September 2021.
Upon proof that the initial application was not duly served the case was reopened two weeks later and an urgent hearing was ordered. That took place on 5 October 2021, when Lindon was ordered to vacate the subject premises by 19 October 2021. It appears that he left the premises on or about 2 November 2021.[3]
[3]Email Ray White to QCAT 28 November 2021.
On 18 October Lindon filed an application for a stay of that order, which the tribunal refused on October 19 2021.
On 21 October 2021 Lindon’s request for another reopening was dismissed.
The present application

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.

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Details

Case: [2022] QCATA 163
Decision Date: 2 November 2022

CaseChat Overview and Summary

In the matter of Lindon v Ray White Mermaid Waters, the Queensland Civil and Administrative Tribunal (QCAT) considered an application for leave to appeal a decision pertaining to the termination of a residential tenancy agreement. The tenant, Lindon, had sought an order for the renewal of the lease, arguing that the termination was improper. Ray White Mermaid Waters, the property manager, opposed the application, asserting that the lease had lawfully expired and that QCAT lacked the jurisdiction to renew the lease. The central issue before the tribunal was whether the appeal was barred by section 139 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). This section generally prohibits appeals from QCAT's decisions unless there is a demonstrated error in the decision-making process. The tribunal examined whether there was any error in the process that led to the termination of the lease. It concluded that no such error existed and that the decision to terminate the lease was correctly made. Consequently, the tribunal found that the appeal was not barred by section 139 of the QCAT Act and dismissed the application for leave to appeal.

Orders

Orders of the court

The application for leave to appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION	Lindon v Ray White Mermaid Waters [2022] QCATA 163
PARTIES:	mack lindon
(applicant)
v
ray white mermaid waters
(respondent)
APPLICATION NO:	APL290-21
ORIGINATING APPLICATION NO/S:	MCDT1164/21
MATTER TYPE:	Appeals
DELIVERED ON:	2 November 2022
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Dr J R Forbes
ORDERS:	The application for leave to appeal is dismissed.
CATCHWORDS:	APPEAL – APPLICATION FOR LEAVE TO APPEAL – RESIDENTIAL TENANCY DISPUTE – termination of lease – where termination is for failure to leave upon expiry of lease – where tenant seeks order for renewal of lease – where absence of jurisdiction to make such order – whether appeal barred by QCAT Act s 139 – where s 139 distinguished - where no error demonstrated in process terminating lease – where application for leave to appeal dismissed COVID-19 Emergency Response Act 2020 (Qld) Queensland Civil and Administrative Tribunal Act 2009 Qld) s 32, s 138, s 139 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 293 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Balemi v Ingles [2020] QCATA 58 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135 LemongroveServices Pty Ltd trading as Reimer Winter Williamson Lawyers and Anor v Rilroll Pty Ltd and Ors [2019] NSWCA 174 Nurzenski v B P Builders NQ Pty Ltd [2017] QCAT 67 Orr v Holmes (1948) 76 CLR 632 Robinson v Corr [2011] QCATA 302 Total Driver Pty Ltd & Anor v Hedley [2020] QCATA 81
APPEARANCES & REPRESENTATION:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)