Edenborough v Mt Isa Properties & Auctioneers [2011] QCATA 231

CITATION: Edenborough v Mt Isa Properties & Auctioneers [2011] QCATA 231 PARTIES: Mrs Kathie Edenborough (Applicant/Appellant) v Mt Isa Properties & Auctioneers (Respondent) APPLICATION NUMBER: APL192-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 31 August 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – TENANCY – where notice of intention to leave – where tenant did not leave – where notice to leave – where application filed outside period – whether Tribunal has jurisdiction – whether warrant valid – whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act 2008, ss 293(2), 341(2), 351(4), 351(5) Lowe v Aspley [2010] QCATA 59, cited Hill v Mitakoodi Aboriginal Corporation [2011] QCATA 108, cited APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION [1] Mrs Edenborough and her family lived in a property rented through Mt Isa Properties & Auctioneers. In August 2010, Mrs Edenborough served a notice of intention to leave, nominating 11 November 2010 as the date for giving vacant possession. The tenancy expired on the same date. [2] Mrs Edenborough did not leave on 11 November 2010. On that day Mt Isa Properties & Auctioneers served a notice to leave, requiring Mrs Edenborough to leave by 11 January 2011. She did not leave but, on 16 March 2011, she served a notice to remedy breach. [3] On 17 March 2011, Mt Isa Properties & Auctioneers filed an application with the Tribunal requesting termination because of a failure to leave or, in the alternative, because of objectionable behaviour. The Magistrate who heard the matter, sitting as an ordinary member of QCAT, terminated the agreement and ordered that a warrant issue for a period of seven days, to take effect in three weeks’ time. [4] Mrs Edenborough has appealed the Magistrate’s decision on these grounds: a) The Magistrate did not have jurisdiction to hear the application because the application for failure to leave was not made within 2 weeks of the nominated handover day; b) The Magistrate was in error in issuing the warrant of possession because it did not take effect no later than three business days after the date of issue, and was not in effect for at least 14 days; and, c) The Magistrate erred in not considering whether such an order was appropriate. [5] Because this is an appeal from the Tribunal in its Minor Civil Disputes jurisdiction, leave to appeal is necessary: s 142(3)(a)(i) of the QCAT Act. [6] 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? [7] Section 293(2) of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA Act) states that an application to terminate for failure to leave must be made within 2 weeks of the handover date. Mrs Edenborough says that, because the application was not made within 2 weeks of 1 January 2011 (the handover date), the Tribunal has no jurisdiction to consider the application. -- 2 of 4 -- 3 [8] As the Deputy President of QCAT her Honour Judge Kingham has previously determined, the RTRA Act is proscriptive about the requirements for issuing notices and commencing proceedings.1 The failure to bring an application within 2 weeks of the handover date is fatal to an application for termination under s 293(2) of the RTRA. [9] On 13 April 2011 the learned Magistrate directed a warrant to issue, taking effect on 4 May 2011 and remaining in effect for 7 days. The purpose of issuing a warrant in these terms was to allow Mrs Edenborough a month to find alternative accommodation. Unfortunately, the warrant does not comply with s 351(5) (that a warrant must take effect no later than 3 business days after it is issued) or s 351(4) of the RTRA Act (that the warrant must be effective for at least 14 days). [10] Mrs Edenborough’s third complaint is that, because the notice to leave was given without grounds, the Magistrate failed to consider whether it was appropriate to make a termination order: s 341(2) RTRA Act. [11] Mt Isa Properties & Auctioneers’ notice to leave was, however, issued with grounds: that Mrs Edenborough had given notice of an intention to leave but did not act upon that notice. Mrs Edenborough did not deny that she gave the notice, nor did she deny that she did not withdraw the notice as required by the RTRA Act. Section 341(2) has, therefore, no application here. [12] I have already identified that the erroneous exercise or power is an error of law that would, in some cases, justify leave to appeal being granted.2 However, there are good reasons why, in this case, leave to appeal should be refused. [13] Mt Isa Properties & Auctioneers also sought a termination order on the grounds of objectionable behaviour. The learned Magistrate did have jurisdiction to consider the application to terminate on this ground. [14] Mrs Edenborough says there was no discussion about the objectionable behaviour. While it is true that the learned Magistrate’s decision made no reference to objectionable behaviour, there was certainly evidence about it. Mr Carlin, from Mt Isa Properties & Auctioneers, gave evidence3 that Mrs Edenborough had been calling him ‘day and night’ and that she was swearing at builders and Mr Carlin. Mrs Edenborough denies that she swore at the builder but she does not specifically deny that she was calling Mt Isa Properties & Auctioneers often, and inappropriately. [15] The learned Magistrate preferred Mr Carlin’s evidence in other respects and described him as a ‘credible person’ who appears regularly in the Tribunal.4 After reading the transcript, I have no reason to come to a different view. There was evidence before the learned Magistrate that 1 Lowe v Aspley [2010] QCATA 59 at 4. 2 Hill v Mitakoodi Aboriginal Corporation [2011] QCATA 108 at 4. 3 Transcript page 6, lines 40-44; page 7, lines 8-10 and 25-27. 4 Transcript page 9, lines 22-26; page 13, lines 1-5. -- 3 of 4 -- 4 could have supported a finding that the tenancy should have been terminated on the grounds of objectionable behaviour. [16] The learned Magistrate crafted the warrant to allow Mrs Edenborough time to find alternative accommodation, and at the express request of Mr Carlin. She could have achieved the same result through a warrant that issued on the day of the hearing, and remained in effect for 28 days. The result is that Mrs Edenborough was given more than the minimum time to relocate. There was certainly no detriment caused to Mrs Edenborough by the unorthodox terms of the warrant. [17] Mrs Edenborough no longer resides in the property the subject of this dispute. There can be no useful purpose in allowing leave to appeal because there is no prospect that Mrs Edenborough will obtain any substantive relief from the proceeding. There is no question of general importance that should be determined by the Appeal Tribunal and no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. -- 4 of 4 --