Scott v Xiao

CITATION: Scott v Xiao [2013] QCATA 268

PARTIES:	James Stuart Scott (Appellant)
v
Linqun Conrad Xiao (Respondent)

APPLICATION NUMBER: APL145-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe OAM, Senior Member

DELIVERED ON: 1 October 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1. Leave to appeal refused.

CATCHWORDS:

MINOR CIVIL DISPUTE – where notice to remedy breach – whether notice defective – where notice to leave – whether notice defective – where request for rental statement – where claim for compensation – whether notices retaliatory – whether grounds for leave to appeal

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 291(2), 291(3), 349(1)

Dearman v Dearman (1908) 7 CLR 549;
Fox v Percy (2003) 214 CLR 118.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Chambers v Jobling (1986) 7 NSWLR 1

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

APPEARANCES and REPRESENTATION (if any):

The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. The Scott family were tenants of an acreage property at Bundamba. On 27 December 2012, the lessor’s agent issued a Form 11 notice to remedy breach. The details of the breach were “failure to comply with your lease regarding rent payments.” According to the notice, Mr Scott’s rent was eight days, and $1,080, overdue. He had until 5 January 2013 to remedy the breach.

2. The agent issued a Form 12 notice to leave on 7 January 2013. The notice stated that the grounds for the notice were “failure to pay rent arrears”. Mr Scott was required to vacate by 16 January 2013.

3. Mr Scott and his family did not vacate. The agent filed an application for termination of the tenancy agreement. On 5 March 2013, after two adjournments, an Adjudicator granted a termination order.

4. Mr Scott wants to appeal that decision. He says that the Form 11 was wrong. He says that the Form 12 was wrong. He says the learned Adjudicator should have dismissed the application pursuant to s 426 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). He says that the learned Adjudicator erred in ruling that the errors in the Forms 11 and 12 were clerical errors only. He says that the agent misled the tribunal. He says that the agent’s misleading conduct contributed to the learned Adjudicator’s bias against him. He says that the learned Adjudicator erred in failing to consider all the circumstances, including that the lessor had failed to maintain the property, had not reimbursed Mr Scott for emergency repairs and issued notices…