Marsellos Pike Real Estate v Bate - [2014] QCATA 316

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.
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 328, 349

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118

Chambers v Jobling (1986) 7 NSWLR 1

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

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…

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: [2014] QCATA 316
Decision Date: 18 November 2014

CaseChat Overview and Summary

The matter of Marsellos Pike Real Estate v Bate came before the court, where the dispute revolved around a breach of tenancy terms. The original application was filed in the Magistrates' Court of Victoria, where the appellant, Marsellos Pike Real Estate, sought to terminate the respondent's tenancy following a breach of lease conditions. The respondent, Bate, argued that the notice provided to remedy the breach was insufficient, leading to the application being refused. The appellant then sought leave to appeal this decision.

The central legal issues the court had to address were whether the notice given to the respondent was adequate under the law and whether there were grounds for the appellant to appeal the Magistrates' Court's decision. The court had to consider the statutory requirements for a notice to remedy a breach of lease and evaluate the sufficiency of the notice provided by the appellant. Additionally, the court examined the criteria for granting leave to appeal, particularly in the context of a minor civil dispute.

In its reasoning, the court found that the notice given by the appellant did not comply with the statutory requirements, which necessitated a specific form and content for notices to remedy breaches. Consequently, the Magistrates' Court's decision to refuse the application to terminate the tenancy was upheld. The court further held that the appellant had not demonstrated sufficient grounds for leave to appeal, as the primary issue centred on the adequacy of the notice, which did not present a significant legal question warranting appellate review. The court's decision was thus to refuse leave to appeal.

As a result, the court issued an order refusing the appellant's application for leave to appeal the Magistrates' Court's decision. The order confirmed that the notice provided by the appellant was insufficient and that the grounds for appeal were inadequate.

Orders

Orders of the court

1. Leave to appeal 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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