Pogliacomi v L J Hooker Browns Plains
[2014] QCATA 227
•22 August 2014
| CITATION: | Pogliacomi v L J Hooker Browns Plains [2014] QCATA 227 |
| PARTIES: | Fay L Pogliacomi (Applicant/Appellant) |
| v | |
| L J Hooker Browns Plains (Respondent) |
| APPLICATION NUMBER: | APL232 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 22 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application for leave to appeal refused |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where tenancy agreement expired – where notice to leave without grounds – where tenancy terminated - whether grounds for appeal Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 341 Pickering v McArthur [2005] QCA 294 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
On 6 June 2014, the tribunal terminated Ms Pogliacomi’s tenancy agreement. She received a Form 12 – notice to leave – because her tenancy was at an end. The notice was issued without grounds but it gave Ms Pogliacomi two months’ notice.
Ms Pogliacomi wants to appeal that decision. She says she was not granted an adjournment when she applied for one at the hearing, therefore, she could not file affidavits and get legal advice. She disputes the notice to leave. She wants an independent inspection and assessment of the condition of the tenancy.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1] QCAT Act s 142(3)(a)(i).
[2] Pickering v McArthur [2005] QCA 294 at [3].
The learned Adjudicator did refuse an adjournment. The notice to leave was issued in January. The hearing had already been adjourned once. Ms Pogliacomi had over three months to get advice and put her material before the tribunal. The learned Adjudicator’s refusal to grant the adjournment was reasonable.
As the learned Adjudicator observed, this was a straightforward application for a termination without grounds. The agent had given the appropriate notice, the notice expired and Ms Pogliacomi was still in the tenancy. The learned Adjudicator could make the order if he was satisfied it was appropriate to do so[3].
[3] Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 341.
The learned Adjudicator asked Ms Pogliacomi whether she was alleging retaliatory conduct and Ms Pogliacomi told the learned Adjudicator she was not[4]. Ms Pogliacomi was a periodic tenant, because the tenancy agreement had expired[5]. The lessor wanted the house back, to do renovation work. There was no reason for the learned Adjudicator to refuse to terminate the tenancy.
[4] Transcript page 1-10, lines 9-13.
[5] Transcript page 1-3, lines 22-24.
Ms Pogliacomi wanted an inspection of the tenancy with a view to repair and, perhaps, a reduction in rent. This application was not the time for that. If Ms Pogliacomi was unhappy with the condition of the tenancy, she should have delivered a notice to remedy breach. If she wanted compensation because of a breach of the lessor’s obligations, she had to file a notice of dispute resolution with the Residential Tenancies Authority within 6 months of becoming aware of that breach. There is no evidence that Ms Pogliacomi took any of these steps. In those circumstances, the tribunal has no jurisdiction.
There is nothing in the transcript that persuades me the learned Adjudicator should have taken a different view of the facts. There is no reasonably arguable case that the learned Adjudicator was in error.
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