Marsellos Pike Real Estate v Bate
[2014] QCATA 316
•18 November 2014
| CITATION: | Marsellos Pike Real Estate v Bate [2014] QCATA 316 |
| PARTIES: | Marsellos Pike Real Estate (Applicant) |
| v | |
| Rebecca Bate (Respondent) |
| APPLICATION NUMBER: | APL401 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 18 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where notice to remedy breach – where insufficient notice provided – where application to terminate tenancy refused – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28. Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
Ms Bate was 49 days in arrears of rent. Marsellos Pike Real Estate, acting as agent for the lessor, issued a notice to remedy breach. Ms Bate did not pay. Marsellos Pike issued a notice to leave. Ms Bate did not leave. Marsellos Pike filed an application to terminate Ms Bate’s tenancy. The tribunal dismissed the application.
Marsellos Pike wants to appeal that decision. It says the learned Adjudicator failed to act fairly, failed to consider all evidence before him and failed to make a decision based on all the merits of the case. It says that the learned Adjudicator made his decision on a technicality, without considering the merits of the case in circumstances where he had discretion to waive non-compliance.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The learned Adjudicator dismissed Marsellos Pike’s application because it did not give the required period of notice in its notice to remedy breach.
Section 328 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) states that the period for remedying a breach of tenancy must not end earlier than seven days after it is given. Marsellos Pike issued the notice on 1 August 2014. As the learned Adjudicator observed[5] ‘issued’ is not the same as ‘given’. Marsellos Pike gave the notice to Ms Bate by positing it on Friday 1 August 2014. The earliest date she could have received it was 4 August 2014. The notice called for the breach to be remedied by 10 August 2014. The learned Adjudicator was correct in finding that Marsellos Pike did not give the necessary seven days’ notice.
[5] Transcript page 1-9, lines 1 – 9.
The learned Adjudicator was also correct in finding that he had no discretion to waive the requirement of seven days’ notice. The learned Adjudicator pointed out that notice period in s 328(1) of the RTRA Act is mandatory. Section 349 does not allow the tribunal to cure defects in a notice to remedy breach, only a notice to leave. This tribunal has published many decisions confirming that the RTRA Act is proscriptive[6] and the tribunal has no power to waive compliance with its mandatory provisions.
[6] Lowe v Aspley [2010] QCATA 59 at [10].
Marsellos Pike misunderstands the effect of s 28 of the QCAT Act. While the tribunal must act fairly and according to the substantial merits of a case, it must also apply the law. Section 28 cannot overcome the proscriptive nature of the RTRA Act.
The tribunal may admit evidence despite non-compliance with any time limit. That is a procedural power. It allows the tribunal to receive evidence, not to cure a defect in the evidence. The learned Adjudicator did admit evidence of the notice to remedy breach but, because of s 328 of the RTRA Act, he could not give it effect.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.
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