Bowditch v The Public Trustee as Administrator for PRM [2011] QCATA 346

CITATION: Bowditch v The Public Trustee as Administrator for PRM [2011] QCATA 346 PARTIES: Anthony Bowditch (Applicant/Appellant) v The Public Trustee as Administrator for PRM (Respondent) APPLICATION NUMBER: APL340-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 22 December 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused CATCHWORDS: Minor Civil Dispute – residential tenancy agreement between applicant and Public Trustee – where applicant failed to attend hearing – where applicant claims an equitable interest in the tenanted property Queensland Civil and Administrative Tribunal Act 2009, s 142(3) APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] On 16 September 2008 The Public Trustee of Queensland was appointed as Administrator for all financial matters for PRM. [2] PRM is the registered proprietor of a property at Marsden. Mr Bowditch commenced living in the residence, it seems, in 1999. -- 1 of 3 -- 2 [3] After The Public Trustee was appointed as Administrator, PRM was admitted to a nursing home. [4] On 21 July 2011 The Public Trustee commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal seeking orders that Mr Bowditch vacate the property, that there be an order of termination and a warrant of possession issued. The application followed service of a notice to leave1 on 13 April 2011. The notice to leave was “without grounds”. In support of the application for a termination order, Mr Moran of the Public Trust Office swore an affidavit in which he states:- “In or about 2003 PRM and Mr M orally agreed to allow Anthony Bowditch (respondent) to use the property as a residence. The respondent moved into the property in or about 2003 and has been residing in the property ever since”. [5] The affidavit goes on to state that Mr Bowditch has continued to reside in the property. The Public Trustee accepts that Mr Bowditch does not occupy the property under a formal written agreement but says that The Public Trustee has agreed “either in writing, orally or impliedly” to allow Mr Bowditch to continue to occupy the property. Mr Bowditch did not pay rent however there was a request from The Public Trustee that he pay certain expenses in lieu of rent. Mr Bowditch agreed to this and paid the expenses as requested. [6] Mr Bowditch contends that as a result of the agreement with PRM and Mr M he acquired an equitable interest in the property and has lodged a caveat to protect that interest. [7] When the application came on for hearing, Mr Bowditch did not attend and a termination order was made on 25 August 2011. [8] Mr Bowditch has filed an application for leave to appeal or appeal that decision and relies on the grounds that he has an interest in the property under an agreement with PRM and as a beneficiary under a constructive trust. [9] An affidavit has been filed in the appeal proceeding which sets out his relationship with PRM. This evidence was not put before the learned Adjudicator. The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined2. That is certainly not the case here. [10] As this is an appeal for a minor civil dispute proceeding, leave of the Tribunal is necessary.3 It is incumbent upon Mr Bowditch to identify some error on the part of the learned Adjudicator in coming to the decision that he did. Leave to appeal will ordinarily only be granted where there is some 1 Form 12 Residential Tenancy and Rooming Accommodation Act 2008. 2 Sections 137 and 138 QCAT Act. 3 QCAT Act, s 142(3). -- 2 of 3 -- 3 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? [11] The termination order was made under the Residential Tenancy and Rooming Accommodation Act 2008. The learned Member who made the order was satisfied, having regard to the correspondence attached to Mr Morgan’s affidavit that there was sufficient evidence of the Residential Tenancy Agreement between Mr Bowditch and The Public Trustee which founded the notice to leave. Having been satisfied that there was a residential tenancy agreement and a Notice to Leave was given to Mr Bowditch under the RTRA the learned Member was entitled, both as a matter of law and fact to make the termination order. [12] Mr Bowditch’s only ground for appeal is that he claims an equitable interest in the property. Even if that issue was put before the Tribunal Member, this Tribunal, as has been said on a number of occasions, does not have jurisdiction to make orders to protect Mr Bowditch’s equitable interest if it was found to exist, which is not the case here. [13] No error of law has been identified by Mr Bowditch in his application or in his affidavit in support of the application for leave to appeal, nor is any apparent. There is no issue of public importance warranting leave. Leave to appeal must therefore be refused. -- 3 of 3 --