Evans v Ramsay [2011] QCATA 199

CITATION: Evans v Ramsay [2011] QCATA 199 PARTIES: Mr David John Evans v Mr Stuart Nicholas Ramsay APPLICATION NUMBER: APL163 -11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member Peta Stilgoe, Member DELIVERED ON: 15 July 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused CATCHWORDS : MINOR CIVIL DISPUTES – where father-in-law occupied unit owned by son-in-law – whether residential tenancy – where father-in-law stopped paying rent – whether tenancy terminated, rental arrears and warrant for possession ordered – whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act 2008 s12 Coleman v Dolman [2011] QCATA 47 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 3 -- 2 REASONS FOR DECISION Mr Oliver [1] In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes. [2] Mr Evans claims that his interest in the rental property is an equitable interest as owner, rather than as a tenant pursuant to a residential tenancy agreement. He submits that he was the purchaser of the property but has not produced any document or writing to support such a contention1. There is no evidence to support Mr Evans’ claim for an equitable interest which would displace the facts as found by the learned adjudicator that the agreement between the parties was a residential tenancy agreement. Ms Stilgoe [3] Mr Evans is Mr Ramsay’s father-in-law. He lived in a unit owned by Mr Ramsay. There was some debate about the circumstances of that arrangement but the learned Adjudicator found that there was a verbal tenancy agreement. Mr Ramsay brought an application to terminate the tenancy and recover arrears of rent. The learned Adjudicator made those orders on 16 March 2011 and issued a warrant for possession. [4] Mr Evans has appealed the learned Adjudicator’s decision on the grounds that his relationship with Mr Ramsay is not that of tenant and lessor. [5] Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. 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? [6] Mr Evans’ submissions revisit all of the material and arguments put before the learned Adjudicator. There is nothing novel in his submissions and he does not point to any specific error on the part of the learned Adjudicator. [7] Section 12 of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA Act) provides that a residential tenancy agreement is an agreement under which a person gives to someone else a right to occupy residential premises as a residence. It does not matter whether the agreement is in writing or oral or that the agreement is not in accordance with Form 18a. 1 Property Law Act 1974, s59. -- 2 of 3 -- 3 [8] The fact of occupation is enough to create a residential tenancy under s12 of the RTRA Act2. Therefore, whatever private arrangements existed between Messrs Evans and Ramsay, a residential tenancy agreement was in existence due to Mr Evan’s occupation of the unit. [9] Mr Ramsay provided a tenancy ledger to the tribunal and Mr Evans frankly admitted that he hadn’t paid Mr Ramsay anything since 28 November 2010.3 Mr Ramsay gave the proper notice to remedy breach and the notice to leave. The breach was not remedied. There is no basis for Mr Evans’ application for leave to appeal. [10] Mr Evans states that he has an equitable interest in the property. That is not a matter in which the tribunal has jurisdiction. If Mr Evans wants to pursue that claim, he must do it elsewhere. [11] There is no question of general importance that should be determined by the appeals tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. 2 Coleman v Dolman [2011] QCATA 47 3 Transcript page 11, lines 15-18 -- 3 of 3 --