Sorensen v Animanto Pty Ltd

[2008] QDC 219

DISTRICT COURT OF QUEENSLAND

CITATION:

Sorensen v Animanto Pty Ltd [2008] QDC 219

PARTIES:

Cole John Sorensen and Karen Sorensen

(appellants)

v

Animanto Pty Ltd

(respondent)

FILE NO/S:

19 of 2008

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

11 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

8 September 2008

JUDGE:

Rackemann DCJ

ORDER:

Appeal allowed. The respondent to pay the appellants’ costs, fixed at $1800. Application for certificate under the Appeal Costs Fund Act dismissed.

CATCHWORDS:

Section 222 appeal against decision to issue a warranty of possession – no jurisdiction under s 141 of the Property Law Act – costs – whether appeal of special difficulty, complexity or importance so as to warrant allowing a higher amount than provided for in the scale – application for certificate under Appeal Costs Fund Act – where magistrate led into error

COUNSEL:

Mr Howe for the appellant

Mr Wilson for the respondent

SOLICITORS:

Peter Roche & Associates for the appellant

Cartwrights Lawyers for the respondent

1. This appeal is brought pursuant to s 222 of the Justices Act, against the decision of a Magistrate to order the issue of a warrant for possession upon proceedings commenced pursuant to s 141(1) of the Property Law Act, which provides as follows:

“(1)When the term or interest of the tenant of any land held by the tenant as tenant for any term of years or for any lesser estate or interest whether with or without being liable for payment of rent—

(a)has expired by effluxion of time; or

(b)has been determined by notice to terminate or demand of possession;

and the tenant or any person claiming under the tenant and in actual occupation of the land or any part of the land fails to deliver up possession of such land or part, the landlord may by complaint under this division proceed to recover possession of that land or part of it.”

1. The grounds of appeal were stated in the notice of appeal[1] as follows:

   [1] and similarly in the certificate of readiness

(1) The magistrate erred in law in issuing the warrant as the matter was not a matter that s 141 & 142 of the Property Law Act 1974 applied to, and could be dealt with by complaint.

(2)        The magistrate erred in law in failing to find alleged breaches could not constitute breaches at law.

(3)        The magistrate erred in law in failing to find that the notices to remedy were invalid and did not entitle the applicant to recover possession.

(4)        The magistrate erred in failing to find that on the material before the magistrate, the complainant applicant was not entitled to possession of the premises.

1. Counsel for the appellants prepared a four page outline of submissions which, in part, dealt with a successful application for an extension of the time within which to bring this appeal.  The substantive grounds of appeal were dealt with in paragraphs 7-14 of that outline.  The first ground of appeal was dealt…