Wright v Matthews - [2023] QCATA 24

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Wright v Matthews [2023] QCATA 24

PARTIES:

COLIN WRIGHT

(applicant/appellant)

v

BRETT MATTHEWS

(respondent)

APPLICATION NO/S:

APL145-22

ORIGINATING APPLICATION NO/S:

MCDT73/22 (Rockhampton)

MATTER TYPE:

Appeals

DELIVERED ON:

24 March 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Peter Murphy SC

ORDERS:

1.     Leave to appeal is granted.

2.     The appeal is allowed.

3.     Set aside the termination order made by the Tribunal on 24 May 2022.

4.     Set aside the warrant for possession issued on 24 May 2022.

5.     Direct the Registry of the Tribunal forward via email and post a sealed copy of the orders of this appeal Tribunal to the Officer in Charge, Rockhampton North Police Station.

CATCHWORDS:

LANDLORD AND TENANT – TERMINATION OF THE TENANCY – BY NOTICE TO QUIT – VALIDITY – WHAT NOTICE REQUIRED – LENGTH OF NOTICE REQUIRED – where the lessee of residential premises appealed the decision of the Tribunal to issue a termination order and warrant of possession pursuant to a Form 12 notice to leave without ground under the Residential Tenancies and Rooming Accommodation Act 2008 – where the lessor issued a second Form 12 to the lessee pursuant to a ten-day period of grace on the lease – where the first Form 12 provided for vacant possession later than two months after it was given but was filed after the specified handover date, and the second Form 12 provided for vacant possession earlier than two months after it was given – whether the second Form 12 should be treated as a notice to leave without ground – whether the Tribunal has the power to vary the length of notice for vacant possession pursuant to s 329 of the Act – whether the Tribunal has the power to extend the time period for filing a notice pursuant to s 293 of the Act

Queensland Civil and Administrative Tribunal Act 2009, s 61, s 142, s 143, Sch 3

Residential Tenancies and Rooming Accommodation Act2008, s 280, s 281, s 286, s 291, s 293, s 326, s 329

Alikhan v Mian Prestige Real Estate trading as Ray White Runaway Bay [2010] QCATA 21, applied

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, cited
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited

Symes v Kahler [2022] QCATA 35, applied

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Mr Wright is the lessee of residential premises at Allenstown on the outskirts of Rockhampton pursuant to a residential tenancy agreement with Mr Mathews.
On 15 February 2022, a Form 12 notice to leave without ground[1] was given to Mr Wright. Section 329(1)(j) of the Residential Tenancies and Rooming Accommodation Act 2008 (“the Act”) requires the notice to be provided for vacant possession not earlier than two months after…

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 Wright v Matthews

Details

AGLC: Wright v Matthews [2023] QCATA 24
Case: [2023] QCATA 24
Decision Date: 24 March 2023

CaseChat Overview and Summary

The case of Wright v Matthews involved the lessee of residential premises appealing a decision of the Tribunal to issue a termination order and a warrant of possession based on a Form 12 notice to leave without ground under the Residential Tenancies and Rooming Accommodation Act 2008. The dispute arose after the lessor issued a second Form 12 to the lessee within a ten-day grace period on the lease. The first Form 12, which provided for vacant possession later than two months after it was given, was filed after the specified handover date, while the second Form 12 provided for vacant possession earlier than two months after it was given. The central legal issues revolved around whether the second Form 12 should be treated as a notice to leave without ground, whether the Tribunal has the power to vary the length of notice for vacant possession pursuant to section 329 of the Act, and whether the Tribunal has the power to extend the time period for filing a notice pursuant to section 293 of the Act.

The Court examined the statutory provisions and the circumstances surrounding the issuance of the notices. It found that the second Form 12 was not a valid notice to leave without ground because it was issued within the grace period and provided for vacant possession earlier than two months after it was given. The Court also held that the Tribunal did not have the power to vary the length of notice for vacant possession or to extend the time period for filing a notice. Consequently, the Tribunal's decision to issue a termination order and a warrant of possession was set aside. The Court allowed the appeal and ordered that the termination order made by the Tribunal on 24 May 2022 and the warrant for possession issued on the same date be set aside. Additionally, the Court directed the Registry of the Tribunal to forward a sealed copy of the appeal's orders to the Officer in Charge, Rockhampton North Police Station, both via email and post.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is allowed.

3. Set aside the termination order made by the Tribunal on 24 May 2022.

4. Set aside the warrant for possession issued on 24 May 2022.

5. Direct the Registry of the Tribunal forward via email and post a sealed copy of the orders of this appeal Tribunal to the Officer in Charge, Rockhampton North Police Station.

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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