Spence v Davies
[2011] QCATA 152
•14 June 2011
| CITATION: | Spence v Davies and Ors [2011] QCATA 152 |
| PARTIES: | Allan Spence (Appellant) |
| v | |
| Frank Davies t/a Bargara Beach Caravan Park Shane Keen t/a Bargara Beach Caravan Park Jody Keen t/a Bargara Beach Caravan Park (Respondents) |
| APPLICATION NUMBER: | APL077-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President |
| DELIVERED ON: | 14 June 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – RESIDENTIAL TENANCIES – NOTICE TO LEAVE WITHOUT GROUNDS – where resident had been served with notices to remedy breach – where resident was issued notice to leave without grounds – whether notice to leave was retaliatory Queensland Civil and Administrative Tribunal Act 2009, ss s137(b), 142(3)(a)(i) Residential Tenancies and Rooming Accommodation Act 2008, ss 291, 292 Du Preez v Linda’s Homes Pty Ltd [2010] QCATA 2 |
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 (QCAT Act).
REASONS FOR DECISION
Mr Spence was the tenant in a caravan stationed in Bargara Beach Caravan Park, Bargara. Mr Davies is the owner of the park and Mr and Mrs Keen are the on-site managers. On 11 January 2011 Mr Spence was issued with a notice to leave without grounds.
On 18 January 2011 Mr Spence brought an application in QCAT to have the Notice to Leave set aside on the basis that the notice was ‘retaliatory’, in contravention of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA).[1] On 23 February 2011 the learned Magistrate, sitting as a Member of QCAT in Bundaberg, commenced hearing the matter. It was subsequently adjourned to allow mediation to take place. On 3 March 2011 the hearing resumed and the learned Magistrate dismissed Mr Spence’s application. Mr Spence seeks leave to appeal that decision.
[1] Residential Tenancies and Rooming Accommodation Act 2008, s 291(3).
Leave to appeal is necessary to appeal against a QCAT decision in the Minor Civil Dispute jurisdiction.[2] Leave is not normally granted unless there is an error in the decision or there is some question of general importance to which a decision of the Appeal Tribunal would be to the public advantage.[3]
[2] Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i).
[3] Vivlios v Votino [2010] QCATA 42.
Mr Spence does not point to any particular error made on the part of the learned Magistrate. He states that a crucial fact was over looked in the original hearing. He submits that he suffers from stress related illnesses, he was very stressed during the hearing and had trouble logically organising his thoughts, arguments and papers. He argues in short, that due to the above, he failed to establish that the Notice to Leave, without grounds, was in fact a retaliatory eviction, and that a number of relevant events he was not able to properly explain preceded and precipitated the Notice to Leave.
Mr Spence’s submissions to this Appeal Tribunal address, in detail, a number of “false allegations” he argues were made by the respondents at the hearing and set out in detail what Mr Spence argues are the relevant events that subsequently led to the Notices to Leave.
The transcript of the proceedings indicates that Mr Spence, quite clearly in fact, articulated his argument that the Notice to Leave was ‘retaliatory’ in more or less the same terms outlined in his submissions. His submissions to this Tribunal are, in essence, a repetition of the evidence heard at the hearing in the first instance. The transcript indicates that both parties led evidence about the altercations and interactions between Mr Spence and Mr and Mrs Keen, Mr Davies and other park residents. The parties’ evidence differed on the exact circumstances surrounding the altercations; however it is clear that in two instances they led to two separate notices to remedy breach. They were included in the material before her Honour and were issued to Mr Spence by Mr and Mrs Keen on 2 August 2010 and 11 January 2011 for objectionable behaviour.[4]
[4]Also forming part of the evidence before her Honour was a 2 page letter dated 3 August 2010 (immediately after the first notice was issued) from Mr Spence to Mr Keen that concluded, with ‘I HAVE A BAD TEMPER AND A SHORT FUZE (sic) AND DON’T LIKE BEING TOLD WHAT OR WHAT NOT TO DO WHEN I KNOW MY RIGHTS AND I OWN THE PROPERTY IN MENTION.’
The transcript of the proceedings clearly indicates that the learned Magistrate considered the relevant information before her in the context of Mr Spence’s allegation that the Notice to Leave was retaliatory.
Under the RTRA, her Honour was required to consider the particular facts and circumstances and determine whether or not the nature of the conduct alleged could be categorised as retaliatory under the Act.[5] Retaliatory conduct, as understood under section 291(3) of the RTRA, has a reasonably narrow interpretation:
If ‘retaliatory’ is construed too broadly, almost any complaint by a tenant to an agent or landlord…might qualify…it is improbable the legislature intended that effect...[6]
It will usually involve conduct on the part of the tenant to assert rights, to which a subsequent notice to leave has some obvious connection.[7]
[5] Du Preez v Linda’s Homes Pty Ltd [2010] QCATA 2.
[6] Du Preez v Linda’s Homes Pty Ltd [2010] QCATA 2, 4.
[7] Du Preez v Linda’s Homes Pty Ltd [2010] QCATA 2, 5.
It is in this context that her Honour considered the evidence before her and concluded that:
The only issue for the courts is whether or not the notice to leave without grounds ought stand and, given the incidents that have occurred about which we’ve heard evidence, Mr Davies speaks of the reasons for his support of his Managers quite properly and, given all of the evidence including Mr Spence’s own evidence, there doesn’t seem to be any basis to me to find that this notice to leave was in any way retaliatory. It was a decision, a difficult decision, but a decision that owner and management have had to make. Even if it is only the potential that they see for future altercations, then it’s an appropriate decision. It’s not one I’m satisfied made out of malice or without basis. Mr Spence tries to maintain that, as he puts it in his dispute resolution request, it’s a bunch of lies told by Park Manager, Shane Keen. There’s no basis to find that this is the case and I don’t find a basis on which it would be reasonable to set aside a notice to leave without grounds from everything that I have heard.[8]
[8] Transcript of Proceedings, pg 23.
[10] Mr Spence has not provided any new evidence or offered a cogent reason to take a different view of the evidence. The learned Magistrate considered the evidence before her and was satisfied that the Notice to Leave, without grounds, was not retaliatory in nature and therefore, it was not set aside. It was clear on the evidence before her that there was some history of a deteriorating relationship between Mr Spence, the park managers and the park owner. Whilst this may explain the respondent’s desire to expel Mr Spence from the Caravan Park, it is not evidence of retaliatory conduct.[9] Leave to appeal is refused.
[9] Du Preez v Linda’s Homes Pty Ltd [2010] QCATA 2, 5.
[11] On a final note, Mr Spence has also submitted that failing an application for Leave to Appeal, the original MCD matter should be reheard so that he can present his case more fully. That is essentially an application to reopen proceedings. An application to reopen a proceeding may be granted if a party would suffer a substantial injustice if it were not reopened, because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.[10] As Mr Spence himself stated in his application, he does not introduce new facts. There is, therefore, no basis upon which to reopen his application.
[10] Queensland Civil and Administrative Tribunal Act 2009, s 137(b).
0
2
0