Perring v Nicholson

Case [2023] QCATA 118

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Perring v Nicholson [2023] QCATA 118

PARTIES:
ANYA PERRING 

(applicant/appellant)

v
LACHLAN JAMES NICHOLSON

(respondent)

APPLICATION NO/S:

APL271-21

ORIGINATING APPLICATION NO/S:

MCDT1149-21 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

14 September 2023

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

1.     Leave to appeal is granted.

2.     The appeal is allowed.

3.     The decision of 8 September 2021 (including the termination order and warrant issued) is set aside.

4.     The application in a residential tenancy dispute filed 23 August 2021 (MCDT1149-21 - Southport) is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where application for termination of a residential tenancy dispute relied upon a notice to leave – where handover day fell on a Saturday - whether application for termination filed prematurely – whether Tribunal could waive compliance with section 293 of the Residential Tenancies and Rooming Accomodation Act 2008 (Qld)

Acts Interpretation Act 1954 (Qld) s 38
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 32, s 61, s 143, s 145, s 146

Residential Tenancies Act 1997 (Vic) s 322

Residential Tenancies and Rooming Accomodation Act 2008 (Qld) s 291, s 293, s 329, s 349, s 429

Baldry v Jackson [1976] 2 NSWLR 415
Betts v Department of Housing and Public Works [2019] QCATA 180
Bundy v Alberts (2007) V ConvR 54-735; [2007] VSC 90
Cachia v Grech [2009] NSWCA 232
Day v Humphrey [2017] QCA 104
Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347
Emanuele & Ors v Hedley & Ors [1997] ACTSC 136
Ericson v Queensland Building Services Authority [2013] QCA 391
Face 2 Face Foundation Pty Ltd & Ors v Brisbane City Council [2013] QCATA 252
Gelmini v Moriggia [1913] 2 KB 549
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Lowe v Aspley [2010] QCATA 59
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
McPherson v Lawless [1960] VR 363
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Sendall v Howe and Anor [2012] QCATA 41
Symes v Kahler [2022] QCATA 35
Varawa v Howard Smith Company Ltd (1911) 13 CLR 35
Veitch v Director of Housing [2008] VSC 442
Wigan v Edwards (1973) 47 ALJR 586

Wren v Mahony (1972) 126 CLR 212

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

What is this application about?

  1. The applicant tenant, Ms Perring is resisting a termination order and warrant issued by the Tribunal below on 23 August 2021 (MCDT1149-21) (‘the decision’) on grounds that the handover day in a Form 12 Notice to Leave (issued without grounds) had not expired when the application to terminate the tenancy was filed…

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Details
AGLC
Perring v Nicholson [2023] QCATA 118
Case
[2023] QCATA 118
Decision Date

CaseChat Overview and Summary

Perring v Nicholson involved a dispute between the landlord, Perring, and the tenant, Nicholson, regarding the termination of a residential tenancy. The matter was initially heard by a Magistrate in the Magistrates Court of Queensland under the Residential Tenancies and Rooming Accommodation Act 2008. Perring applied to terminate the tenancy and Nicholson responded. Perring's application relied on a notice to leave that was served on Nicholson, with a handover date falling on a Saturday. Nicholson argued that the application was filed prematurely because the date for the application to be made had not yet passed.

The legal issues before the court were whether Perring's application was filed prematurely and whether the Magistrates Court Tribunal had the authority to waive compliance with section 293 of the Act. This section mandates that the application for termination must be filed no earlier than two days before the handover day, which in this case was a Saturday. The court had to determine if the Tribunal could exercise its discretion to waive strict compliance with the statutory requirements in light of Perring's actions.

The Tribunal concluded that Perring's application was indeed premature, as it was not filed two clear days before the handover day. Additionally, the Tribunal held that it had the discretion to waive compliance with section 293 where strict adherence would lead to an unjust result. Given that the premature filing was not due to any fault on Nicholson's part and considering the nature of the error, the Tribunal found it appropriate to exercise its discretion. Consequently, the Tribunal allowed the appeal, set aside the earlier decision, and dismissed Perring's application for termination of the tenancy.

Orders

Orders of the court

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The decision of 8 September 2021 (including the termination order and warrant issued) is set aside.

4. The application in a residential tenancy dispute filed 23 August 2021 (MCDT1149-21 - Southport) is dismissed.

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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