White v Macedona Pty Ltd
[2018] QCATA 47
•30 April 2018
CITATION: | White v Macedona Pty Ltd [2018] QCATA 47 |
PARTIES: | Sherelle White |
| v | |
| Debra Young Macedona Pty Ltd trading as Raine & Horne Hervey Bay (Respondent) | |
APPLICATION NUMBER: | APL014-17 |
MATTER TYPE: | Appeals |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Justice Daubney, President |
DELIVERED ON: | 30 April 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for leave to appeal or appeal filed 12 January 2017 is dismissed. |
CATCHWORDS: | APPEALS – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – termination of tenancy – warrant of possession – whether leave to appeal on decision for warrant of possession should be granted - whether appellant’s evidence had been properly considered – where appellant has failed to comply with directions |
| 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 (Qld) (QCAT Act). | |
REASONS FOR DECISION
The applicant, Sherelle White, was the tenant of premises situated at 3/6 Freshwater Street, Scarness.
On 9 January 2017, the Tribunal, constituted by a learned Magistrate at Hervey Bay, made orders terminating the applicant’s tenancy and for a warrant of possession to issue, with that warrant to take effect on 16 January 2017.
On 12 January 2017, the applicant filed an Application for leave to appeal or appeal. In essence, the applicant contended that she considered that her evidence and supporting documentation had not been properly considered by the learned Magistrate and that if her evidence and documents had been properly considered then the legal conclusion would have been that she had a right to stay in the property.
On 13 January 2017, Carmody J, sitting as the Appeal Tribunal, issued an interim order suspending the operation of the termination order and warrant until further order of the Tribunal, and made certain directions for the delivery of material.
Then, on 30 January 2017, Carmody J determined an application by the applicant to stay the Magistrate’s decision. His Honour refused that application and ordered the re-instatement of the warrant of possession and made certain directions for the execution of that warrant.
On that occasion, Carmody J also directed the applicant to inform the Tribunal as to whether she wished to proceed with the application for leave to appeal or appeal by 4:00pm on 7 February 2017. The applicant did not provide any such advice to the Tribunal by 7 February 2017, but on 15 February 2017, the applicant sent the Tribunal an email indicating her desire to continue.
On 15 March 2017, Carmody J made the following directions:
1. Sherelle White must establish that the application for leave to appeal or appeal has been given to Debra Young and Macedona Pty Ltd t/as Raine & Horne Hervey Bay in compliance with Rule 96 by filing an Affidavit of Service or a form of acknowledgement from each of them, by:
4:00pm on 29 March 2017
2. Sherelle White must file in the Tribunal two (2) copies and give to Debra Young and Macedona Pty Ltd t/as Raine & Horne Hervey Bay one (1) copy, a statement in writing with headings and numbered paragraphs identifying:
a) any alleged defect in the notice to leave issued to her on 27 September 2016 that she says affects its legal validity;
b) whether and what justification or excuse she claims for failing to leave the premises by the handover date stated in the notice to leave;
c) whether she claims that the application for the termination order was out of time;
d) any reason why making the termination order for failure to leave was contrary to law or inappropriate;
e) the reasons why she says the termination order should not be confirmed and a fresh warrant of possession issued by the appeal tribunal, by:
4:00pm on 20 April 2017
3. Debra Young Macedona Pty Ltd t/as Raine & Horne Hervey Bay must file in the Tribunal two (2) copies and give to Sherelle White one (1) copy of all submissions in reply, using the same paragraph numbering and headings in the written statement filed in compliance with direction 2, by:
4:00pm on 14 May 2017
4. Neither party will be allowed to rely upon any evidence which was not before the original decision maker without leave of the appeal tribunal.
5. Unless either party files an application for an oral hearing by 4:00pm on 24 May 2017, the application for leave to appeal and the appeal (if the application for leave to appeal is granted) will be determined on the papers.
The applicant did not comply with either of directions 1 or 2 made by His Honour. On 31 May 2017, Carmody J effectively gave the applicant extensions of time within which to comply with those directions by issuing fresh directions in identical terms but with extended dates. The date for the applicant to comply with directions 1 and 2 was effectively extended to 16 June 2017.
The applicant failed to comply with those directions. On 16 June 2017, she had a conversation with a Tribunal Registry officer in which she advised, inter alia, that she had lost all of her documents in Cyclone Debbie, and that the documentation she had filed ought be regarded as being in satisfaction of the directions made by Carmody J.
The application filed on 12 January 2017 is clearly amendable to being dismissed simply on the basis of the applicant’s repeated failure to comply with directions.
But even if one looks at the material the applicant apparently relies on, one can discern no proper basis for the application. The applicant’s material appears to be comprised of handwritten annotations on a copy of an affidavit filed on behalf of the respondent in the hearing before Carmody J and two statutory declarations made by the applicant on 23 January 2017 which were also part of the material considered by His Honour. One of the statutory declarations is a lengthy, discursive narrative in which the applicant purports to justify or excuse the conduct which led to the issuing of the notice to leave which precipitated the termination of her tenancy. Nowhere in her material, however, does the applicant identify any legal defect in the notice to leave or any irregularity in the proceedings which followed. In short, even on the applicant’s own material, her application has no merit.
Accordingly, it is appropriate to order that the application for leave to appeal or appeal filed 12 January 2017 be dismissed.
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