Reimer v Brighton Bayside Caravan Park

[2024] QCATA 90

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

REIMER V BRIGHTON BAYSIDE CARAVAN PARK [2024] QCATA 90

PARTIES:

AARON REIMER

(applicant)

V

BRIGHTON BAYSIDE CARAVAN PARK

(respondent)

APPLICATION NO/S:

APL175-24

ORIGINATING APPLICATION NO/S:

MCDT 0040/22 (Sandgate)

MATTER TYPE:

Appeals

DECISION MADE:

REASONS DELIVERED ON:

22 August 2024

28 August 2024

HEARD AT:

Brisbane

DECISION OF:

A/Senior Member Lember

ORDERS:

1.     The application to stay a decision filed 14 June 2024 is refused.

2.     The application to extend time to file the application for leave to appeal or appeal is refused.

3.     Therefore, the application for leave to appeal or appeal is dismissed.

CATCHWORDS:

APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – EXTENSION OF TIME – where application for leave to appeal filed two years out of time – where warrant of possession was executed two years prior - whether time should be extended

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where a stay is sought of a decision made in the minor civil dispute jurisdiction – whether to stay the decision after the warrant of possession has been executed – where application to stay the decision is misconceived

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 58, s 61, s 122, s 143, s 145, sch 3

Residential Tenancies and Rooming Accomodation Act 2008 (Qld) s 293, s 340

Body Corp for '11 Joseph' CTS 33588 v Desarrollo Pty Ltd ATF The Cove Trust 1 and anor [2022] QCATA 41

Body Corporate for No 9 Port Douglas Road v McEvoy [2011] QCATA 292
Cachia v Grech [2009] NSWCA 232
Crime and Misconduct Commission v Chapman [2011] QCAT 229
Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Hempel v Richardson & Wrench Hervey Bay [2018] QCATA 170
Hessey-Tenny & Anor v Jones [2018] QCATA 131
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

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) (QCAT Act).

REASONS FOR DECISION

What is this decision about?

1. On 22 August 2024 the Appeal Tribunal refused Mr Reimer’s application to stay a decision made by the Tribunal below to terminate his tenancy of the Brighton Bayside Caravan Park (BBCP) and to issue a warrant of possession, together with his application to extend time to apply for leave to appeal, and to appeal that decision. Its reasons now follow.

Relevant factual background to the dispute

1. The BBCP’s application for termination was filed on 6 May 2022 grounded upon a failure to leave following the giving of a Form 12 Notice to Leave[1] with a handover date of 3 May 2022.  

   [1]Residential Tenancies and Rooming Accomodation Act 2008 (Qld), (RTRAA), s 293.

2. The Form 12 was given to Mr Reimer on 27 April 2022 for failure to remedy breaches set out in a preceding Form 11 Notice to Remedy Breach. Breaches alleged against Mr Reimer included objectionable behaviour, property damage, disturbing the peace and threats of violence against other park residents. With its application the BBCP included photographs and witness statements to support the allegations, which were contested by Mr Reimer both in pre-hearing submissions and during the hearing at which both parties appeared.

3. There being no apparent defect in the notices given, and the application having been filed within time under s 293 of the RTRAA, the matter fell to be decided pursuant to s 340(2) of the RTRAA whereby the tribunal may, in an exercise of discretion, make the termination order if it is satisfied the lessor has established the ground of the application (namely, the failure to leave) and notice to leave (namely, the breaches described above).

4. Mr Reimer requested reasons for the decision on 1 June 2022 and they were provided to him on 16 June 2022.

5. The warrant of possession was executed on 20 June 2022.

Grounds of the application for leave to appeal or appeal

1. Mr Reimer, in summary, raises the following issues in his applications for leave to appeal or appeal, to extend time to file the application for leave to appeal and to stay the decision:

   (a)The evidence before the learned Adjudicator was misleading and was accepted by the Adjudicator ‘unreasonably’,

   (b)Mr Reimer was forced to live in homelessness for eighteen months following the eviction, which he says exacerbated existing mental health concerns,

   (c)Mr Reimer purchased the home-site from which he was evicted for $12,000 on 21 April 2020, such that he was not in a ‘moveable dwelling residential tenancy’ but rather should have been dealt with under the “Manufactured Homes (Residential Parks) Act”, and

   (d)He has been unfairly impacted by his removal from the park, and by a subsequent ban from entering the park, because he was then unable to visit his elderly mother who resides in the park.

2. The orders Mr Reimer seeks in the application for leave to appeal or appeal are:

   (a)Set aside the termination order and substitute it for a decision that the BBCP pay Mr Reimer $15,000 in compensation and/or equitable damages,

   (b)Reinstate Mr Reimer’s occupation of the BBCP site as a ‘home owner’, and

   (c)Direct the BBCP to provide Mr Reimer with reasonable accommodation until the reinstatement takes effect.

Legislative framework

Application to stay a decision

1. Under s 145(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) the tribunal may make an order staying the operation of the decision being appealed against until the appeal is finally decided. However, there is no appeal until and unless leave to appeal has been granted where required.

2. Section 58(1) of the QCAT Act permits the Appeal Tribunal to make any interim order it considers appropriate in the interests of justice, including, for example:

   (a)to protect a party’s position for the duration of the proceeding; or

   (b)to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction for the proceeding.

3. A “proceeding” is defined in Schedule 3 of the QCAT Act to generally mean “a proceeding before the tribunal, including an appeal before the appeal tribunal and a proceeding relating to an application for leave to appeal to the appeal tribunal”.

4. Therefore, an application to stay a decision that falls outside the ambit of s 145 may be considered under s 58 to allow a stay of a primary order in circumstances where leave to appeal has not yet been granted.[2]

   [2]Hessey-Tenny & Anor v Jones [2018] QCATA 131 at [24].

5. To succeed on a traditional application for a stay, the party applying for the stay must satisfy the tribunal that there is a good reason for the stay, including:[3]

   (a)that the applicant has a good arguable case on appeal;

   (b)that the applicant will be disadvantaged if a stay is not ordered; and

   (c)that competing disadvantage to the respondent, should the stay be granted, does not outweigh the disadvantage suffered by the application if the stay is not granted.

   [3]Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 per Jerrard JA at [8].

Extension of time

1. Pursuant to s 143 of the QCAT Act an application for leave to appeal must be filed within twenty-eight days after the “relevant day”, which is:

   (a)If reasons have not been given for the decision being appealed against and reasons have not been requested under s 122 or are not required to be given—the day the person received notice of the decision; or

   (b)The day the person is given reasons for the decision being appealed against.

2. Under s 61, the Appeal Tribunal may extend the period within which a person may apply for the Appeal Tribunal’s leave to appeal or make an appeal, subject to s 61(3), which relevantly provides that a time limit cannot be extended if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party to the proceeding.

3. The factors to be considered in the exercise of a discretion to extend time include:

   (a)whether a satisfactory explanation or good reason is shown for the delay in taking the relevant step;

   (b)the likelihood of success of the proceeding if leave to commence it is granted;

   (c)any prejudice to other parties;

   (d)the length of the delay, noting that a short delay is usually easier to excuse than a lengthy one; and

   (e)overall, whether it is in the interests of justice to grant the extension, which usually calls for some analysis of the above factors considered in combination.[4]

   [4]Crime and Misconduct Commission v Chapman [2011] QCAT 229, at [9]-[10]; Body Corporate for No 9 Port Douglas Road v McEvoy [2011] QCATA 292 at [12].

An arguable case on appeal/likelihood of success of the proceeding

1. As each application requires a preliminary view to be formed on the merits of the substantive application, I turn to that issue first and find that Mr Reimer’s application for leave to appeal or appeal has no merit because the warrant issued pursuant to the decision was executed on 20 June 2022 and Appeal Tribunal cannot reinstate possession of the property to Mr Reimer, nor can it award the compensation he seeks as the outcome of his application for leave to appeal or appeal, even if both are successful.

2. Further, the appeal process is not an opportunity for a party to have their case reheard.[5] There must be an identified error in the decision, or the process followed at the hearing.[6] Mr Reimer does not rely on fresh evidence in bringing his application for leave to appeal or appeal, but, rather, upon his reflection of the evidence produced at the hearing. The hearing was his opportunity to challenge the status of his occupation of the site as a residential tenancy (as opposed to a manufactured home site) when he was alert to all the relevant issues.

   [5]Hempel v Richardson & Wrench Hervey Bay [2018] QCATA 170 [14].

   [6]QCAT Act, s143(2)(b).

3. In any event, where a warrant of possession has been executed and where: 

   (a)there is no reasonably arguable case of error in the primary decision;[7]

   (b)there is no reasonable prospect that Mr Reimer will or even can obtain substantive relief;[8] and

   (c)there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage,[9]

   the application for leave to appeal or appeal is entirely without merit.

   [7]         QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 (‘QUYD’).

   [8]Cachia v Grech [2009] NSWCA 232, 2.

   [9]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.

Stay decision

1. As the decision to terminate his tenancy and to issue a warrant of possession took effect two years ago, Mr Reimer does not have a position to protect for the duration of this proceeding nor would the grant of a stay secure the effectiveness of the exercise of the tribunal’s jurisdiction for the proceeding. Nor does Mr Reimer suffer any disadvantage if the decision is not stayed because there are no further actions to take place pursuant to the decision that can be stayed.

2. The application to stay the decision is misconceived and is dismissed on that basis.

Extension of time decision

1. According to Tribunal records, the decision was sent to the applicant when it was made on 27 May 2022. Reasons were provided to Mr Reimer on 16 June 2022, and so the application for leave to appeal or appeal had to have been filed by 14 July 2022.  It was filed on 29 July 2024, a significant delay of more than two years.

2. Mr Reimer has disclosed no reasonable excuse for the delay other than to say that:

   (a)He was homeless until January 2024, and

   (b)Caxton Legal Centre was unable to assist him.

3. These submissions do not satisfy the Appeal Tribunal that Mr Reimer has a reasonable excuse for the delayed filing of his application, nor that it is in the interests of justice that an extension of time be granted to him.

4. Further, as mentioned, the Appeal Tribunal cannot reinstate possession of the property to Mr Reimer as the outcome of his application for leave to appeal or appeal, even if both are successful. Nor can it award compensation for the termination, such that the application for leave to appeal or appeal lacks utility.

Decision

1. For those reasons, the application to extend time to file the application for leave to appeal or appeal is refused, as is the application to stay a decision. This concludes the application for leave to appeal or appeal proceeding.