Craik v McAuley [2013] QCATA 128

CITATION: Craik v McAuley [2013] QCATA 128 PARTIES: Carol Craik (Appellant) v Liane McAuley (Respondent) APPLICATION NUMBER: APL063-13 MATTER TYPE: Appeals HEARING DATE: 2 May 2013 HEARD AT: Brisbane DECISION OF: Dr J R Forbes, Member DELIVERED ON: 3 May 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for leave to appeal is dismissed. CATCHWORDS: APPEAL – LEAVE TO APPEAL – primary order for eviction – premises vacated by tenant – purported appeal relating only to tenant’s property left on premises – no proper subject matter for appeal – application misconceived – application dismissed Queensland Civil and Administrative Tribunal Act 2009, s 32, s 142 Residential Tenancies and Rooming Accommodation Act 2008, s 392, s 393, s 396 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 (QCAT Act). -- 1 of 3 -- 2 REASONS FOR DECISION [1] This purported appeal1 is, unfortunately, quite misconceived. [2] An appeal is essentially a motion that a decision already made in a proceeding be amended or set aside, but this application is, in effect, an attempt to commence a new proceeding. It does not address the orders of the Adjudicator, made at Ipswich on 8 January 2013, pursuant to Liane McAuley’s application filed on 5 December 2012. [3] McAuley’s application, as amended, was brought under the Residential Tenancies and Rooming Accommodation Act 2008 (“RTA”). It sought an immediate eviction order against her sub-tenant, Craik, alleging hostility, threats, property damage and a collection of chattels constituting a fire hazard. [4] On 8 January 2013 an Adjudicator ordered that: a) The residential tenancy agreement between the parties be terminated as from midnight on 19 January 2013 on the grounds of failure to leave; b) A warrant of possession issue authorising a police officer to enter the premises at 26 Pencarrow Crescent, Raceview, Queensland 4305; c) The warrant shall take effect on 19 January 2013 and remain in effect for 14 days, to expire at 6 pm on 2 February 2013; d) The warrant [is] to be executed as soon as reasonably practicable after taking effect; and e) Entry under the warrant shall only be between the hours of 8 am and 6 pm. [5] Craik vacated the premises on 19 January 2013. [6] On 11 February 2013 Craik filed a purported appeal endorsed with these Orders Sought: That my stuff is not to be disposed of, like I’ve been threatened by her with, until the time that I have said that I can pick it up at. If anything is missing when I do retrieve my things, I expect those things to be returned to me as well as paid compensation for what I have been subjected to by her and the other tenants. I also require my $50 key deposit as well as $6 for my stolen Orange Juice. [7] No order affecting the Adjudicator’s decision2 is sought. The best that can be said for the endorsement is that it seems to foreshadow a separate and first-instance claim for detention and/or conversion of goods, and moneys owing. Appropriate treatment of property of a former tenant is set out in sections 392-393, and 396 of the RTA. 1 Or more precisely, application for leave to appeal: QCAT Act s 142(3). “Appeal” is convenient shorthand. 2 See paragraph [4] above. -- 2 of 3 -- 3 [8] The purported appeal is simply misconceived and vacuous for want of any proper subject matter, and must therefore be dismissed. ORDER The application for leave to appeal is dismissed. -- 3 of 3 --