Sinclair v Earl Property Trust
[2018] QCATA 72
•8 May 2018
| CITATION: | Sinclair v Earl Property Trust [2018] QCATA 72 |
| PARTIES: | Shane Sinclair (Applicant/Appellant) | |
| v | ||
| Earl Property Trust | ||
| APPLICATION NUMBER: | APL211-17 | |
| MATTER TYPE: | Application and appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Carmody |
| DELIVERED ON: | 8 May 2018 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | THE APPEAL TRIBUNAL ORDERS THAT: 1. The application for an extension of time to file an application for leave to appeal or appeal is refused. | ||
| CATCHWORDS: | LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where the applicant seeks an extension of time to file an application for leave to appeal – where the applicant claims ongoing health issues and administrative errors prevented him from filing on time – where the applicant has not identified any genuine error in need of correction on appeal – where an extension of time to pursue a case with no reasonable chance of success is futile – where the application for an extension of time is refused | ||
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 application (filed 20 June 2017) is for an extension of at least 75 days to apply for leave to appeal against an unclaimed goods order the tribunal made on 16 February 2017 in a tenancy matter under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRAA).
The applicant did not attend at the time stated in the notice of hearing given to him by the principal registrar and the decision in issue was made in default of appearance.
At law the order has immediate effect but was stayed by the appeal tribunal on 18 July 2017 pending the outcome of this application but only in so far as it is relates to any of the applicant’s (unidentified) personal documents.
Subject to that the respondent is at liberty to enforce the tribunal’s order.
The applicant initially applied to reopen the proceedings on the ground that he had a reasonable excuse (illness) for not attending the hearing. His bid was rejected on 9 March 2017. Under s 141(2) QCAT Act the time for making an application for leave to appeal the 16 February 2017 decision runs from 9 March 2017 and ended 28 days later; that is, 18 April 2017.
The application to extend or waive compliance with the time requirements was not filed until 10 July 2017 due to ongoing health issues and “several administrative errors”.
The power to enlarge stipulated time limits is discretionary. Its functional purpose is to avoid injustice to the applicant. Relevant considerations include a satisfactory explanation for the delay, the degree of any prejudice to the respondent and where, as here, the lapse of time is substantial, the merits of the proposed appeal. An extension of time to pursue a hopeless case for leave would be futile and contrary to the main objects of the QCAT Act.
An applicant for leave must demonstrate some legal, factual or mixed error that if corrected on appeal would result in a change for the better.
The error is stated in the Form 39 as “…preferring the evidence of (the respondents) when the evidence before him established that the goods do not belong to (the applicant) and must be returned to their rightful owners”.
However, the respondents never claimed ownership of the “goods” in issue and there is no evidence that they include “personal papers” he owns. There is no genuine error to correct and personal papers are expressly excluded from the terms of the order and safeguarded against sale or disposal by statute.
As the former lessor the respondents are required by s 364 to return any document they know belongs to the applicant to him after termination or when the document is found. If they know the applicant is not the owner, and know who is, the document must be given to the owner. Otherwise, the document must be given to the Public Trustee to be dealt with under the Public Trustee Act 1978 (Qld).
If the applicant is dissatisfied with the way the respondents dealt with the documents he can apply to the tribunal for an order under s 365(2).
The application to extend time for filing the application for leave is, therefore, refused, not because the explanation for delay is unsatisfactory but because the applicant has no right or interest to protect on appeal.
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