Stewart v Penrose - [2017] QCATA 119

CITATION:

Stewart v Penrose [2017] QCATA 119

PARTIES:	Charles Stewart Therese Stewart (Applicant/Appellant)
v
Simon Penrose (Respondent)
APPLICATION NUMBER:		APL348-16

MATTER TYPE:

Application and Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

DELIVERED ON:

25 October 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

1. Leave to appeal is refused for the tribunal decisions in QCAT proceedings 1120/16 and 42/16.

2. Leave is granted to appeal the tribunal decision in QCAT proceeding 69/16 on grounds 9 and 10.

3. Appeal allowed.

4. QCAT proceeding 69/16 is struck out.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OTHER MATTERS – where the landlord issued an abandonment notice – whether the notice was capable of review by way of rehearing – where the tenant was in rental arrears – where an urgent matter was referred by the tribunal for mediation – whether prior mediation can satisfy a statutory requirement for conciliation in a related but separate claim – where leave to appeal refused – where the respondent’s claim is struck out for non-compliance with a mandatory conciliation condition

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3, 4, 36, 75, 77, 138

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 355, 356, 357, 359, 361, 363, 398, 415, 416, 419

Adams v Scowcroft [2012] QCATA 25

Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277
Delahoy & Grevell v Wuiske & Anor
[2006] QDC 276
Devayne v Noble (1816) 1 Mer 572
Macdav Pty Ltd v Alliswell Pty Ltd
[2001] VACT 2436

Raymond v Doidge [2012] QCAT 163

Aurisch v Millsons Pty Ltd & Ors
[2011] QCAT 245

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).

REASONS FOR DECISION

This is an application for leave to appeal tribunal decisions in residential tenancy claims 1120/16 (misnumbered 34/16 in the application), 42/16 and 69/16.
The decision in 1120/16 was made in Gympie on 13 September 2016 in a review of 34/16 filed in Brisbane on 29 April 2016.
The issue was whether and when a tenancy agreement was terminated by abandonment.
The decisions in 42/16 and 69/16 were made in related proceedings. 42/16 was filed by the applicants on 8 April 2016 seeking the urgent return of goods seized from the premises after deemed termination under s 355 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRAA). 69/16 is the respondent’s claim filed on 25 May 2016 for compensation of the costs of retaking and reinstating the abandoned premises.
The tribunal ordered the parties mediate 42/16 before any decision was made in 69/16.
Mediation was held on 26 April 2016 but it did not settle the dispute and 42/16 was relisted for hearing on 10 May 2016. It was later adjourned together with 69/16 and…

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 Stewart v Penrose

Details

AGLC: Stewart v Penrose [2017] QCATA 119
Case: [2017] QCATA 119
Decision Date: 25 October 2017

CaseChat Overview and Summary

The matter of Stewart v Penrose involved a dispute between a landlord and tenant regarding the issuance of an abandonment notice and the subsequent refusal of leave to appeal by the tribunal. The appeal was heard by the Queensland Civil and Administrative Tribunal (QCAT). The primary legal issues the court had to decide included whether the abandonment notice was capable of review by way of rehearing, whether prior mediation could satisfy a statutory requirement for conciliation in a related but separate claim, and whether the tribunal's findings were supported by the evidence presented.

The court found that there was no merit in the argument that the tribunal was biased in reviewing the abandonment notice. There was no breach of natural justice, and any objection to the constitution of the tribunal was waived as no recusal application was made. The court also found that the tribunal reasonably considered the evidence when deciding whether the premises were abandoned. The timing of the notice to leave did not impact the tribunal's decision as the legality of the notice was not in dispute. Lastly, the court found that the tribunal was entitled to accept the respondent's testimony that rent was in arrears, despite the applicants' evidence to the contrary.

The appeal tribunal refused leave to appeal the tribunal decisions in two of the proceedings. However, leave was granted for the tribunal decision in the third proceeding on two grounds. The appeal was allowed, and the QCAT proceeding was struck out.

Orders

Orders of the court

THE APPEAL TRIBUNAL ORDERS THAT:

1. Leave to appeal is refused for the tribunal decisions in QCAT proceedings 1120/16 and 42/16.

2. Leave is granted to appeal the tribunal decision in QCAT proceeding 69/16 on grounds 9 and 10.

3. Appeal allowed.

4. QCAT proceeding 69/16 is struck out.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Granting leave to appeal to argue this ground is not justified where to adopt the applicant’s own words at [2.2] of their submissions, “the tenants aren’t entitled to a review, but if they were, they have had one and they still lose”. Ground 2 – Apprehended prejudgment or bias The applicants contend that it was wrong for the same Magistrate to hear both the application to set aside the abandonment termination notice on 31 March 2016 and the ‘rehearing’ or review of the application. There is no merit in this ground. Bias is not just a legal error but a breach of natural justice going to jurisdiction. There is no principle of natural justice precluding a regional tribunal from reviewing a deemed abandonment on the merits and, in any case, no recusal application was made and, therefore, any objection to the constitution of the tribunal was impliedly waived.Ground 3 – Failure to consider formality of termination notice The tribunal made a credibility based finding reasonably open on the evidence that the respondent issued and gave four forms – the entry notice (Form 9), notice to remedy breach (Form 11), notice to leave (Form 12), and the abandonment termination notice (Form 15), all on the same day viz., 8 March 2016. The applicant contends, however, that there is “something fundamentally wrong” with a decision that allows a notice to leave to be issued before the expiry of the notice to remedy breach and at the same time as an abandonment termination notice. While some criticism of the respondent’s action can be made on this score the tribunal was deciding whether to make an order declaring that the premises were abandoned or not on the 8 March 2016 by reference to the considerations in s 357(6)(a)-(g) at a review by way of rehearing under s 361. Therefore, the legality of giving notice to leave before a remedy notice expires was not a matter of dispute the tribunal had to resolve to make a final order. The service of the documentation was in issue, not its formality. Leave on this ground is not warranted.Ground 4 – Error in finding rent was paid in arrears The applicants assert that rent was up to date on 8 March 2016 – the date the notice to remedy arrears was given – because a pay authority they subsequently cancelled facilitated the payment on 22 February 2016 of rent two weeks in advance, or up to 9 March 2016. However, the tribunal found that rent was paid a fortnight in arrears and was due, but not paid, on 8 March 2016. The respondent testified that he “… obtained a copy of the (Centrelink) statements which confirmed the rent was paid to 22 February and that rent was paid in arrears”.[8][8]See [116] of the reasons. The male applicant at the rehearing “… conceded that no rent had come through on the 8 March”.[9][9]See [71] of the reasons. It was open to the tribunal to accept that rent was in arrears before and as at the termination date based on the respondent’s hearsay based testimony over evidence to the contrary by the applicants, whom the tribunal found to be generally untrustworthy witnesses of what had happened in the past.

Ratio Decidendi

Legal Principle Established

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