Payne v Koukides - [2019] QCATA 168

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Payne v Koukides [2019] QCATA 168

PARTIES:

GRAYHAM ROSS PAYNE
(applicant/appellant)

v

TRUSTEE FOR VASSILIOUS KOUKIDES TRUST

(respondent)

APPLICATION NO/S:

APL288-19

ORIGINATING APPLICATION NO/S:

MCDT 1853/19

MATTER TYPE:

Appeals

DELIVERED ON:

16 December 2019

HEARING DATE:

13 December 2019

HEARD AT:

Brisbane

DECISION OF:

Member Olding

ORDERS:

1.   The applicant’s application to stay the decision in Minor Civil Dispute MCDT 1853/19 on 11 September 2019 is refused.

2.   The Warrant of Possession issued in accordance with the Tribunal’s order of 11 September 2019 is to be reinstated to take effect on 20 December 2019 and remain in effect for 21 days, to expire at 6:00 pm on 10 January 2020.

3.   Entry under the warrant shall only be between the hours of 8:00 am and 6:00 pm.

4.   Grayham Ross Payne must inform the Tribunal whether he wishes to proceed with the application for leave to appeal or appeal, by: 4:00 pm on 23 December 2019.

5.   If the applicant does not comply with direction 4 above, the application for leave to appeal or appeal may be dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where tenancy terminated and warrant of possession ordered to issue – whether stay should be granted until application for leave to appeal or appeal is determined – where applicant claimed to be in occupation pursuant to compromise of other proceedings – application refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 58(1), 123
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 351

Arthur & Anor v Husheer & Anor; Gautron & Anor v Husheer & Anor [2019] QCATA 146
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Hessey-Tenny & Anor v Jones [2018] QCATA 131
Sommers v Bycroft [2019] QCATA 130

APPEARANCES & REPRESENTATION:

Applicant:

No appearance

Respondent:

G Koukides

REASONS FOR DECISION

The applicant is in possession of two houses in Browning Street, South Brisbane, which are owned by the respondent trustees of the estate of the late Vassilious Koukides. While he resides at the house at number 58, the applicant also lets out some rooms in that house. He has also let the house at number 62 to tenants. He has not paid rent for approximately two years and has not complied with orders made in other Tribunal proceedings for payment of some tens of thousands of dollars in outstanding rent on each property.
The applicant asserts that he has been entitled to possession of both properties, rent-free, since the respondent consented to orders of the Supreme Court of Queensland in other proceedings in November 2017.
On 25 October 2019, a Tribunal adjudicator ordered that tenancy agreements for both properties be terminated and that warrants of possession issue. The applicant filed applications for leave to appeal or appeal and for stays of the adjudicator’s decisions. The applications for leave to appeal or appeal were initially…

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.

Continue reading Payne v Koukides

Details

AGLC: Payne v Koukides [2019] QCATA 168
Case: [2019] QCATA 168
Decision Date: 16 December 2019

CaseChat Overview and Summary

Payne v Koukides is a case in which the Queensland Magistrates Court considered an application to stay a decision made by the Magistrates Court Dispute Tribunal. The applicant, Payne, sought a stay of the decision to terminate a tenancy and a warrant of possession ordered to issue, pending an appeal. The respondent, Koukides, opposed the stay on the basis that Payne had failed to establish a compelling case warranting the exercise of the court's discretion in his favour. The legal issues before the court were whether Payne's application to stay the decision should be granted and if the warrant of possession should be reinstated. The court considered the general principles applicable to the grant or refusal of a stay of proceedings, including the balance of convenience and the likelihood of success of the appeal.

The court found that Payne had not demonstrated a compelling case for a stay of the decision, and therefore, the application was refused. The court noted that the balance of convenience favoured the respondent, as the tenancy had already been terminated, and the property had been vacant since 12 September 2019. The court further found that Payne had not demonstrated a reasonable prospect of success on appeal. The court was not satisfied that Payne had established a valid claim to be in occupation of the premises pursuant to a compromise of other proceedings. As a result, the court ordered that the warrant of possession be reinstated and remain in effect for 21 days from 20 December 2019, with entry only permitted between the hours of 8:00 am and 6:00 pm. The court also directed Payne to inform the Tribunal whether he wished to proceed with the application for leave to appeal or appeal, by 4:00 pm on 23 December 2019. If Payne did not comply with this direction, the application for leave to appeal or appeal may be dismissed.

In summary, the court refused Payne's application to stay the decision of the Magistrates Court Dispute Tribunal and ordered that the warrant of possession be reinstated. The court found that Payne had not demonstrated a compelling case for a stay of the decision, and the balance of convenience favoured the respondent. The court also found that Payne had not demonstrated a reasonable prospect of success on appeal, as he had not established a valid claim to be in occupation of the premises. The court ordered Payne to inform the Tribunal whether he wished to proceed with the application for leave to appeal or appeal, by a specified date. If Payne did not comply with this direction, the application for leave to appeal or appeal may be dismissed.

Orders

Orders of the court

1. The applicant’s application to stay the decision in Minor Civil Dispute MCDT 1853/19 on 11 September 2019 is refused.

2. The Warrant of Possession issued in accordance with the Tribunal’s order of 11 September 2019 is to be reinstated to take effect on 20 December 2019 and remain in effect for 21 days, to expire at 6:00 pm on 10 January 2020.

3. Entry under the warrant shall only be between the hours of 8:00 am and 6:00 pm.

4. Grayham Ross Payne must inform the Tribunal whether he wishes to proceed with the application for leave to appeal or appeal, by: 4:00 pm on 23 December 2019.

5. If the applicant does not comply with direction 4 above, the application for leave to appeal or appeal may be 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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Payne v Koukides [2019] QCATA 168
PARTIES:	GRAYHAM ROSS PAYNE (applicant/appellant)
v
TRUSTEE FOR VASSILIOUS KOUKIDES TRUST (respondent)
APPLICATION NO/S:	APL288-19
ORIGINATING APPLICATION NO/S:	MCDT 1853/19
MATTER TYPE:	Appeals
DELIVERED ON:	16 December 2019
HEARING DATE:	13 December 2019
HEARD AT:	Brisbane
DECISION OF:	Member Olding
ORDERS:	1. The applicant’s application to stay the decision in Minor Civil Dispute MCDT 1853/19 on 11 September 2019 is refused. 2. The Warrant of Possession issued in accordance with the Tribunal’s order of 11 September 2019 is to be reinstated to take effect on 20 December 2019 and remain in effect for 21 days, to expire at 6:00 pm on 10 January 2020. 3. Entry under the warrant shall only be between the hours of 8:00 am and 6:00 pm. 4. Grayham Ross Payne must inform the Tribunal whether he wishes to proceed with the application for leave to appeal or appeal, by: 4:00 pm on 23 December 2019. 5. If the applicant does not comply with direction 4 above, the application for leave to appeal or appeal may be dismissed.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where tenancy terminated and warrant of possession ordered to issue – whether stay should be granted until application for leave to appeal or appeal is determined – where applicant claimed to be in occupation pursuant to compromise of other proceedings – application refused Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 58(1), 123 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 351 Arthur & Anor v Husheer & Anor; Gautron & Anor v Husheer & Anor [2019] QCATA 146 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Hessey-Tenny & Anor v Jones [2018] QCATA 131 Sommers v Bycroft [2019] QCATA 130
APPEARANCES & REPRESENTATION:
Applicant:	No appearance
Respondent:	G Koukides