Thistleton v Thistleton
[2011] QCATA 279
•29 September 2011
| CITATION: | Thistleton and Anor v Thistleton [2011] QCATA 279 |
| PARTIES: | Mr Terence Thistleton Mrs Grace Boskma |
| v | |
| Mr William Thistleton |
APPLICATION NUMBER: APL245 -11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Peta Stilgoe, Acting Senior Member |
DELIVERED ON: 29 September 2011
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal refused.
| CATCHWORDS: | MINOR CIVIL DISPUTE – where party occupies house under terms of a Will – where application for warrant of possession – whether occupation is a tenancy under the RTRA Act – whether tribunal has jurisdiction to hear dispute Queensland Civil and Administrative Tribunal Act 2009, s 83 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr William Thistleton lives in his mother’s house under the terms of her Will. Mr Terence Thistleton and Mrs Grace Boskma are the executors of the estate. They brought an application against William for a warrant of possession on the grounds that he had failed to comply with a notice to remedy breach dated 21 December 2010 and a notice to leave dated 22 January 2011. At a hearing on 16 May 2011, the learned Adjudicator expressed doubts as to whether the tribunal had jurisdiction to hear the dispute. She directed the parties to file submissions about that point. After considering those submissions, the learned Adjudicator determined that the tribunal did not have jurisdiction and dismissed the application.
Terence and Grace have appealed the learned Adjudicator’s decision on these grounds:
a) At a hearing of a previous application, they were told that the tribunal did have jurisdiction.
b) William made certain concessions at mediation conferences.
c) Terence and Grace do not agree with the learned Adjudicator’s findings.
d) William’s submissions were received late and were not signed.
e) They received legal advice that the tribunal did have jurisdiction.
Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
Terence and Grace are appealing the decision made in MCD 638. The learned Member’s decision in the earlier proceeding is irrelevant to the consideration before me now. I do not have access to the earlier file but it appears that the learned Member dismissed the application because it failed a threshold test in that William had not been served with any notices under the Residential Tenancies and Rooming Accommodation Act 2008. It is likely that the learned Member did not turn his mind to the specific point. The minor civil disputes jurisdiction of the tribunal is a very busy one and members who sit in the jurisdiction may not descend to a detailed examination of the applicable law if the proceeding can be determined on a single issue.
Evidence of anything done or said during a mediation for a proceeding is not admissible at any stage of the proceeding[1] unless the parties agree that it may be admitted into evidence.[2] William has not agreed that statements made at mediation can be used in the proceeding, therefore the learned Adjudicator was right not to have any regard to that submission.
[1] Section 83(1) QCAT Act.
[2] Section 83(2)(a) QCAT Act.
Terence and Grace take issue with the learned Adjudicator’s findings that:
a) The relationship between the parties is a complex one. I agree with the learned Adjudicator’s summary. There are competing interests between the brothers and it is not a simple case of landlord and tenant.
b) That the learned Adjudicator inferred Terence’s motivation for the warrant of possession is that he is a beneficiary of the estate. The learned Adjudicator makes no finding about motive. She simply records what the Will provides for if William vacates the house.
c) That William is the only brother who is entitled to claim a life interest in the house. “Life interest” is a particular legal term. It is not the same thing as a concern or attraction about a place because of sentimental reasons or boyhood memories.
d) That William has the obligation of keeping the house in repair when the facts show that he has not met that obligation. Having an obligation and keeping it are two different matters. The learned Adjudicator made no finding about whether William had complied with his obligation.
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[3]
[3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[4] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[5]
[4] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[5] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
To the extent that the learned Adjudicator made findings of fact, there is nothing in the transcript that persuades me that she should have taken a different view.
The tribunal received William’s submissions on 31 May 2011, one day after the due date. The tribunal has the power to waive compliance with procedural requirements[6] if there is no prejudice or detriment to a party to the proceeding that can’t be remedied by an appropriate order for costs or compensation. Terence and Grace do not complain of any prejudice. One day’s delay cannot be a ground for justifying leave to appeal.
[6] Section 61 QCAT Act.
I accept that Terence and Grace received legal advice about their right to bring the proceeding in the tribunal. They have not favoured the appeal tribunal with a copy of that advice so I cannot tell why it differs from the learned Adjudicator’s decision. Even careful lawyers have been known to give advice which, when tested by a court or tribunal, turns out to be mistaken.
I agree with the learned Adjudicator’s observation that this is a complicated matter concerning conflicting rights and obligations granted to the parties under a Will executed in 1987, the terms of which have been operative since 1992. The residential tenancies jurisdiction of this tribunal is not the place to ventilate these concerns and framing the dispute as a residential tenancy dispute is wholly artificial.
There is no question of general importance that should be determined by the appeals tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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