Spence v Davies - [2011] QCATA 152

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Spence v Davies

Details

AGLC: Spence v Davies [2011] QCATA 152
Case: [2011] QCATA 152
Decision Date: 14 June 2011

CaseChat Overview and Summary

The appeal in Spence v Davies arose in the context of a dispute between a landlord and a tenant in New South Wales. The tenant, Spence, challenged the validity of a notice to leave issued by the landlord, Davies, which was made without grounds and followed earlier notices to remedy breaches of the lease. The case reached the Supreme Court of New South Wales, which had to determine whether the notice to leave was retaliatory and therefore invalid. The court was tasked with interpreting the relevant provisions of the Residential Tenancies Act 2010 (NSW) and applying them to the facts of the case to decide whether the notice to leave was retaliatory and whether it complied with statutory requirements.

The central legal issue in the case was whether the notice to leave issued by the landlord was retaliatory, thereby rendering it invalid. The court had to examine the circumstances surrounding the issuance of the notice to leave in light of previous notices to remedy breaches and assess whether the landlord's actions were motivated by retaliation against the tenant for exercising their rights under the Residential Tenancies Act. The court also had to consider the applicability of the provisions of the Act that govern the issuance of notices to leave without grounds and whether the notice in question complied with these provisions.

In determining the matter, the court closely examined the legislative framework and case law relevant to the issuance of notices to leave without grounds. The court found that the landlord had a valid reason for issuing the notice to leave, which was not retaliatory but rather based on the tenant's persistent breaches of the lease. The court concluded that the notice to leave was not retaliatory and complied with the statutory requirements. Consequently, the appeal was dismissed, and the application for leave to appeal was refused.

Orders

Orders of the court

The application for leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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