Michel v Fresh Rentals Pty Ltd

[2013] QCATA 346

CITATION: Michel v Fresh Rentals Pty Ltd [2013] QCATA 346

PARTIES:	Yolen Marie Alexandra Michel Xavier Jean Jules Michel (Appellants)
v
Fresh Rentals Pty Ltd (Respondent)

APPLICATION NUMBER: APL237-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Hon K Cullinane AM QC, Judicial Member

DELIVERED ON: 24 September 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.   Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where the applicants were given a notice to leave without grounds – where the applicants alleged the notice was retaliatory – where the applicants commenced proceedings in the Tribunal to set aside the notice – where the Tribunal held the notice was not retaliatory – where the Tribunal accepted the evidence of the respondent that the notice was issued because the owner wanted vacant possession at the expiration of the tenancy agreement – where the applicants seek leave to appeal that decision – whether leave to appeal should be granted

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 292

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. This is an application for leave to appeal against a decision of the Tribunal in a minor civil dispute.

1. The applicants had sought an order against the Respondent under s 292 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the RTRA Act) setting aside a notice to leave without grounds.

1. The decision refusing the order was delivered on 3 June 2013.

1. Leave to appeal is required under s 142(3)(a)(ii) of the Queensland Civil and Administrative Act 2009 (Qld). 

1. The matter arose out of the lease of premises of the Respondent’s principal by the Applicants.

1. The Respondent provided evidence of the service of a notice to leave without grounds.  Although the service of this notice was contested there was evidence from the Respondent of such service which the Tribunal accepted.

1. The notice required vacant possession some two months hence which coincided with the termination of the lease.  According to the Respondent the owner did not wish to renew the lease.

1. There had been a history of disputation between the parties which is set out in the Tribunal’s reasons.

1. The Applicants relied upon the provisions of s 291 of the RTRA Act.

1. This provides as follows;

Notice to leave without ground

(1)The lessor may give a notice to leave the premises to the tenant without stating a ground for the notice.

(2)However, the lessor must not give a notice to leave under this section  because–

(a)    the tenant  has applied, or is proposing to apply, to a tribunal for an order under this Act; or

(b)     the tenant–

(i)has complained  to a government entity about an act or omission of the lessor adversely affecting the tenant; or

(ii)has taken some other action to enforce the tenants rights; or

(c)      an order of a tribunal is in force in relation to the lessor and tenant.

(3)Also, the lessor may not give a notice to leave under this section if the giving of the notice constitutes taking retaliatory action against the tenant.

(4)A notice to leave under this section is called a notice to leave without grounds.

1. There were issues between the parties which are set out in the judgment. The Respondent gave evidence the Applicants had threatened to apply to the Tribunal.  These were made on a number of occasions.

1. The Tribunal accepted the Respondent’s evidence that the giving of the notice to leave was not motivated by the issues between the parties or because of the threatened applications.  Rather the owner wanted to have vacant possession at the expiration of the lease.  The Tribunal expressed the view that if it were otherwise it was unlikely that a notice to leave requiring vacant possession in two months time when the lease expired would be given.

1. The logic of this approach cannot be denied.  It was certainly open to the Tribunal to make such a finding.

1. The Applicants make allegations in the application for leave. These allege bias and a failure to allow sufficient time to present their case.  There is nothing in the material to support either of these.  Whilst the Tribunal was at some pains to ensure the Applicants kept to relevant matters there was no complaint that they were being denied an opportunity to fully present their case.

1. The Applicants contend that the section prohibits the giving of a notice to leave if action has been taken by the tenants to protect their rights.  This ignores the requirement that the giving of the notice must be motivated by the tenant’s action.

1. The matter involves primarily issues of fact and turns on its own particular circumstances. To the extent that the Applicants purport to raise questions of law (to which reference has been made) they are without any basis.

1. There is nothing in the matter which would justify the granting of leave to appeal.

1. The application is refused.