Ray White Centenary v Seferocic
[2013] QCAT 745
| CITATION: | Ray White Centenary v Seferocic [2013] QCAT 745 |
| PARTIES: | Ray White Centenary (Applicant) |
| v | |
| Alen Seferocic Shae Bruce-Tonking (Respondent) |
| APPLICATION NUMBER: | MCDT0536-13 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Acting Senior Member Howard |
| DELIVERED ON: | 23 December 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application to stay is treated as an application for an interim order; 2. An interim order suspending the operation of the termination order and warrant regarding the Application for minor civil dispute-tenancy numbered Richlands T536/13 is made until 8 January 2014. 3. The matter is to be relisted for hearing in relation to the reopening and if successful, the further hearing of the application for termination at 9.30am on 8 January 2014 at Richlands, QCAT. |
| CATCHWORDS: | MINOR CIVIL DISPUTE-RESIDENTIAL TENANCY- APPLICATION FOR REOPENING- Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 58 |
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
The circumstances leading to the application for reopening which is now before me are unfortunate.
The background
An application for termination of a tenancy agreement filed on 22 November 2013 was determined by a Tribunal adjudicator on 11 December 2013. Orders were made terminating the tenancy agreement between the parties from midnight on 13 December 2013 for failure to leave. A warrant for possession of the premises was also issued authorising a police officer to enter the premises to take effect on 13 December 2013 and remain in effect for 14 days.
On 20 December, 2013, one of the tenants, Mr Seferocic, filed an application for reopening, together with an application seeking an order to stay the operation of the decision made on 11 December 2013, pending the hearing of the reopening application. Reasons for the application for reopening were set out. Mr Seferocic says in his application that he was originally informed that the hearing date was 8 January 2014. Several days later he received a notice stating that the hearing date was 11 December 2013. He says that he spoke with a clerk at Richlands court house about not being able to attend in December because of a family holiday already planned. He says the clerk asked if he was able to attend ‘right then’ and he advised that he could. He states that the clerk was to call him back to confirm, however, they did not do so.
Ray White Centenary, agent for the landlord, opposes the granting of an order suspending the operation of the orders made. Essentially, it submitted that the tenants had known for months that action was to be taken to have them vacate as they were not paying rent and had not done so since September. It stated that when it received notice of the hearing date for 8 January 2014, it telephoned the registry to request an earlier hearing date. Claims are made by it that the tenant was at home as the owner of the property drove past and saw him. It is not apparent when this is said to have occurred and is relayed second hand through the agent. In any event, for current purposes, it does not assist.
The stay application is made in the wrong form because a stay order is only able to be granted, in the Tribunal’s discretion, on review applications and appeals.[1] However, it is clear that the tenant seeks an order which suspends the operation of the orders made on 11 December 2013 until the reopening application is determined. Therefore, I consider it appropriate to treat the application to stay as an application for an interim order. I made directions accordingly, together with orders granting the interim order pending an early hearing of the reopening application (and if successful, the further hearing of the application for termination) on 8 January 2014.
[1]QCAT Act ss 22 and 145.
Ray White Centenary has now requested reasons for my decision.
Should an interim order be granted?
An interim order may be granted to protect a party’s position for the duration of the proceeding, or to secure the effectiveness of the exercise of the Tribunal’s jurisdiction for the proceeding.[2]
[2]QCAT Act s 58.
Sections 137 and139 of the QCAT Act effectively provide that there may be grounds for a reopening if the party did not appear at the hearing and had a reasonable excuse for not doing so.
The Tribunal file reveals a file note made by a registry officer who apparently spoke with Mr Seferocic on 4 December 2013 when he phoned about the 2 hearings notices received and advised, as he suggests, that he could only attend on 8 January 2014 and that the other tenant was already away and also could not appear on 11 December. She notes his agreement to deal with the application on the day of the telephone call which the clerk indicated she would arrange if Ray White was also able to appear. Having ascertained that Ray White’s representative could appear, she notes that she was then unable to get an answer on Mr Serofovic’s telephone. She further notes that she had told him that a warrant may issue in his absence if there is no appearance on 11 December.
In considering this interim application to suspend the operation of the orders made on 11 December, it is not for me to make any findings in relation to the reopening application. However, as is revealed by the background set out it appears there may be a basis upon which the tenants can argue that a reopening ground may exist in regard to whether they had reasonable excuse for not attending the hearing on 11 December.
It is common ground that 2 notices were sent and that the hearing dates advised were as discussed above. An order was not made vacating the hearing date on 8 January, 2014. Indeed, when orders were made on 11 December, the January hearing date still was not vacated. It is highly unusual for 2 notices of hearing to be sent. Confronted with 2 apparently valid notices, the tenant then contacted the registry to advise that he could only attend on the 2nd of the scheduled dates.
The registry tried, it seems to organise an even earlier hearing, on the date of the telephone call. Ultimately, that did not transpire as Mr Seferocic could not be contacted again. The situation remained, after his call, that the proceeding had 2 scheduled hearing dates. He had made it clear he would attend on the second of those, but could not be there on the first. The registry officer’s note says she warned him that order may be made in his absence. Whether or not Mr Seferocic agrees that this was said is unknown.
I note the strong opposition of Ray White to the suspension of the order, on the grounds that it says rent is considerably in arrears. Whereas, I appreciate the landlord’s concerns if the arrears of rent are substantial, I make the observation that the application for termination of the tenancy was not made until 22 November 2013. Delays which may have occurred in filing the application are clearly not matters which can concern me in determining the current application for an interim order which is before me.
Given the highly unusual circumstances, that is, the giving of 2 notices of hearing, the second being given without the earlier date being vacated, I am satisfied that to secure Mr Seferocic’s position an interim order should be made suspending the operation of the termination order and the warrant until the reopening application is determined.
I made arrangements for the early hearing of the reopening application, and if successful the further hearing of the application for termination, on 8 January 2014.
Orders are made accordingly.
0
0
0