Symes v Kahler

Case [2022] QCATA 35

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Symes v Kahler [2022] QCATA 35

PARTIES: LISA MAREE SYMES

(applicant)

v
HANS JUERGEN KAHLER

(respondent)

APPLICATION NO:

APL198-21

MATTER TYPE:

Residential tenancy matters

DELIVERED ON: 

14 March 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

1        Leave to appeal is granted.

2        The appeal is upheld.

3        The orders made herein on 23 June 2021 are set aside.

4    The application of the respondent Kahler, filed herein on 19 May 2021, is dismissed.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – RESIDENTIAL DISPUTE – non-payment of rent –– where notice to remedy breach issued – where non-compliance with notice to remedy – where notice to leave given – where premises not vacated as required – where application made for warrant of possession – where primary tribunal orders warrant to issue – where tenant seeks leave  to appeal – whether application for warrant filed within prescribed time – whether notice to leave valid – whether prescribed time for leaving not allowed – where notice to leave defective -  whether prescribed time limits mandatory or merely procedural – where leave granted and appeal upheld – whether matter should be remitted for retrial – where originating process dismissed

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 61, s 142

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 70, s 280, s 281, s329
Alikhan v Mian Prestige Real Estate t/a Ray White Runaway Bay [2010] QCATA 21
Alliance Security Australia Pty Ltd v House Secure Pty Ltd 2014] QCATA 32
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Cameron v Cole (1944) 68 CLR 571
Durrand & Anor v Karaolis & Anor [2012] QCATA 182
Early Property Group Pty Ltd v Cavallaro [2010] QCATA 65
Fox v Percy (2003) 214 CLR 118
Golding v ADP Coastwide Realty & Management [2014] QCATA 45
Gubier v Queensland Department of Housing and Public Works [2020] QCATA 4
Holt v Best [2018] QCATA 66
Hope v Brisbane City Council [2013] QCA 198
JM v QFG and KG [2000] 1 Qd R 373
Koehler v Rao [2012] QCAT 716 v Aspley [2010] QCATA 59
McGarry v Coates [2013] QCATA 32
McKain v R W Miller &Co (SA) Pty Ltd (1991) 174 CLR 1
Minister for Home and Territories v Teesdale Smith (1924) 35 CLR 120
Myers v Medical Practitioners Board (2007) 18 VR 48

Park v Brothers (2005) 222 ALR 421

Queensland Building and Construction Commission v Watkins [2014] QCA 172
Rail Corporation of NSW v Nebax Constructions  [2012] NSWSC 6
Reihana v Beenleigh Show Society [2019] QCATA 91
Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd (2012) 43 WAR 91
Ross v Ross (1999) 181 NSR (3d) 22
Sali v SPC Limited (1993) 67 ALJR 841

The Pot Man Pty Ltd  v Reaoch [2011] QCATA 318

Watkins v…

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Details
AGLC
Symes v Kahler [2022] QCATA 35
Case
[2022] QCATA 35
Decision Date

CaseChat Overview and Summary

In the matter of Symes v Kahler, the dispute arose from a residential tenancy agreement between Lisa Symes and Hans Kahler. The case involved a claim for a warrant of possession due to non-payment of rent and subsequent failure to vacate the premises. The primary decision was made by the Queensland Civil and Administrative Tribunal (QCAT), which ordered the termination of the tenancy and issued a warrant of possession. Symes subsequently sought leave to appeal the QCAT decision, challenging various aspects of the proceedings.

The legal issues before the court included whether the application for the warrant of possession was filed within the mandatory time limit, whether the notice to leave provided sufficient time for compliance, and whether the notice to leave was valid despite its defect. The appeal hinged on statutory provisions under the Residential Tenancies Act, particularly sections 293 and 329, which outline the timelines and requirements for notices to remedy breaches and notices to leave. The court had to determine whether these statutory requirements were mandatory and if their non-compliance rendered the notice to leave invalid.

The court found that the application for the warrant of possession was not out of time, as it was filed on 19 May 2021, well within the two-week period required by section 293(2) of the RTA. Regarding the notice to leave, the court concluded that the notice was defective because it did not provide the tenant with the required two-month period to vacate the premises as mandated by section 329(2)(j) of the RTA. This defect invalidated the notice to leave, and the court held that the notice did not provide sufficient time for compliance. As a result, the court granted leave to appeal, upheld the appeal, and set aside the QCAT orders.

In its orders, the court granted leave to appeal, upheld the appeal, set aside the QCAT orders, and dismissed Kahler's application for a warrant of possession filed on 19 May 2021. The decision highlighted the importance of adhering to statutory requirements in residential tenancy proceedings, particularly concerning the timing and validity of notices to leave.

Orders

Orders of the court

1 Leave to appeal is granted.

2 The appeal is upheld.

3 The orders made herein on 23 June 2021 are set aside.

4 The application of the respondent Kahler, filed herein on 19 May 2021, is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Symes denies that the notice to leave was duly served, but the judge of fact[7] reasonably rejected that claim.[8][7]See paragraph [13] and footnote 14, below,[8]T page 18 lines 16-34.Action commenced and primary decision By application marked as filed in the Brisbane registry on 25 May 2021 Kahler sought an order for termination of Symes’ periodic tenancy, and a warrant of possession. The initial application was heard and decided on 23 June 2021, when the Tribunal ordered that:The residential tenancy between the parties be terminated from midnight on 30 June 2021 on the grounds of failure to leave.A warrant of possession to issue authorising a police officer to enter the premises at ... Middlemount.The warrant shall take effect on 1 July 2021 and remain in effect for 14 days, to expire at 6.00 pm on 15 July 2021. Symes now seeks leave to appeal[9] against that decision on six grounds.[9]Application for leave to appeal filed 13 June 2021; QCAT Act s 142(3).First ground: Was the application out of time? Section 293(2) of the RTA provides that an application for termination for failure to leave must be made within 2 weeks after the handover day.[10] This provision is mandatory; no relaxation is permissible.[11][10]I.e. the day stated in a notice to leave ... as the day vacant possession of the premises is required to be ... handed over to the lessor: RTA Schedule definition of `handover day’(material part).[11]See [17] below. Symes submits that the application was made twenty days after service of the notice to leave. If 25 May 2021 were indeed the filing date of Kahler’s Form 2, the application for ouster would be incurably[12] out of time. Given that the notice to leave was issued on 26 April 2021 the mandatory time limit expired on 19 May 2021. However, Kahler testified that he lodged the application in the Sandgate registry on 19 May 2021. On production of an appropriate official receipt[13] the tribunal was satisfied that the application was not out of time. (Apparently Sandgate sent it to the principal registry a few days later, and the Form 2 bears the date of receipt there, instead of the date of lodgement at Sandgate). Findings of fact are the prerogative of the primary tribunal and where, as here, there is evidence clearly capable of supporting a disputed finding, it will rarely be disturbed on appeal.[14] [12]See [17] below.[13]Receipt of Sandgate Magistrates Court registry dated 19/5/21 at 3.45pm for filing fee relating to `Minor Civil Disputes [sic] (no money being claimed) Brisbane Hans J Kahler v Lisa M Symes’.[14]Fox v Percy (2003) 214 CLR 118 at 125-126; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151; Myers v Medical Practitioners Board (2007) 18 VR 48 at [53]; JM v QFG and KG [2000] 1 Qd R 373 at 391. For the above reasons the first ground of the proposed appeal is rejected.Second ground: Did the notice to leave allow due time for compliance? Sub-section 329(2)(j) materially provides that the handover day[15] for a lessor’s notice to leave without grounds to a periodic tenant must not be earlier than 2 months after the notice is given.[16] [15]The Second Schedule to the RTA materially defines `handover day’ as ` the day stated in a notice to leave ... as the day vacant possession of the premises is required to be … handed over to the lessor.’[16]Holt v Best [2018] QCATA 66 at [12]; Form 12 page 2 Table 1 final item.

Ratio Decidendi

Legal Principle Established

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