Adsett & Bailey v Anderson [2011] QCATA 53

CITATION: Adsett v Anderson [2011] QCATA 53 PARTIES: Troy Michael Adsett and Kylie Maree Bailey v Kymberley Anderson APPLICATION NUMBER: APL053-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 14 March 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS: Minor civil dispute – whether applicants have an equitable interest in the rented property – whether document in writing signed by the registered proprietor – whether the residential tenancy agreement and schedule of payments constituted an instalment contract Queensland Civil and Administrative Tribunal Act 2009, s 145(2) Property Law Act 1974, s 59 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION 1. This application for leave to appeal raises one point for determination. That is whether the applicants can establish they have an equitable interest in land described as Lot 3 on RP 136450 County of Stanley, Parish of Warner and contained in certificate of title 15036214 (“the land”). The land’s physical address is 22 Bunya Park Drive, Eatons Hill, Queensland. 2. The land’s current registered proprietor is Nicholas Jay Doyle. There is a registered mortgage on the land to HomeSide Lending, as mortgagee. 3. The named respondent is the authorised agent for Mr Doyle who commenced a proceeding in QCAT. The application claimed $5,250 arrears of rent, and sought an order for a warrant of possession pursuant to the provisions of the Residential Tenancy and Accommodation Act 2008. 4. On 1 December 2010 the Tribunal made an order terminating the residential tenancy agreement and directed a warrant of possession to issue but not take effect until 15 February 2011. A further order was made on 22 February 2011, after a hearing, that the applicants were to pay to the respondent $8,171.00 arrears of rent together with the filing fee. 5. The applicants filed an application for leave to appeal and appeal on 23 February 2011 1 and also applied for a stay of the Tribunal’s orders made on 1 December 2010. A stay was granted on 24 February 2011 with directions for both parties to file submissions. The warrant for possession was extended to 4 March 2011. 6. On the receipt of the submissions from both parties the stay was refused and the warrant for possession was reinstated to take effect on 9 March 2011. 7. In their written submissions the applicants claim that they had entered into an instalment contract with Mr Doyle to purchase the land at the end of the residential tenancy agreement which was for a specified term commencing 12 August 2010 and ending on 10 June 2011. 8. In support of that contention the applicants produced to the Tribunal, and to the Appeal Tribunal the following documents: (a) A General Tenancy Agreement in Form 18a; (b) The reference schedule of a standard Contract for Houses and Residential Land, unsigned; 1 QCAT Act section 142(3). -- 2 of 4 -- 3 (c) A rate notice from the local authority, Moreton Bay Regional Council, in the name of Mr Doyle; (d) A notice from Unity Water in the name of Mr Doyle. (e) A schedule of payments. 9. These documents are also relied to support the lodgement of a caveat over the land. The caveat claims the applicants have the “interest of a purchaser under an instalment contract as defined by s 71 of the Property Law Act 1974”. Reliance is placed on an “’Instalment Contract’ entered into and in writing dated 14/08/2010 between Kimberley Anderson acting on behalf” of Mr Doyle and the applicants as purchasers. The document referred to as the instalment contract is simply the schedule referred to above as document (e) not signed by Mr Doyle or Ms Anderson. 10. In addition, the General Tenancy Agreement does not contain any special condition or reference to any agreement between Mr Doyle and the applicants concerning the purchase of the land or transfer at the conclusion of the tenancy agreement. The reference schedule to the standard contract for a residential purchase is unhelpful because it is unsigned by either party. The schedule of payments might assist the applicants had it been signed by Mr Doyle. This certainly supports the proposition that there may have been discussions about a transfer but it is not sufficient to bind Mr Doyle or to comply with section 59 of the Property Law Act 1974. 11. When invited to make further submission in the appeal no further documents were provided to support the contention that there existed an agreement, in writing, granting to the applicants a right to a transfer of the land at the conclusion of the tenancy agreement. For the applicants to satisfy the Tribunal that they do have an equitable interest they must produce some evidence in writing on the part of Mr Doyle or his authorised agent to satisfy the requirements of section 59 of the Property Law Act 1974. 59 Contract for the sale etc. of land to be in writing No action may be brought upon any contract for the sale or other disposition of land or any interest in land unless the contract upon which such action is brought, or some memorandum or note of the contract, is in writing, and signed by the party to be charged, or by some person by the party lawfully authorised. 12. The transcript of the proceeding before the learned adjudicator on 25 January 2011 indicates that section 59 (described as the Statute of Frauds), and the lack of a document in writing, was considered by him and quite rightly, on the evidence before him, he was not satisfied that the applicants had an interest in land requiring protection resulting in the issuing of the warrant for possession. Ms Anderson, who attended -- 3 of 4 -- 4 the hearing, denied that there was any agreement to sell the land to the applicants and denied the existence of any documents signed by Mr Doyle to support such a proposition. 13. I note in passing that the applicants did not attend the hearing on either the 25 January 2011 or 22 February 2011. 14. Both learned adjudicators were satisfied that the true arrangement between the applicants was as lessor and tenant, consistent with the signed residential tenancy agreement. This is also consistent with the evidence of Ms Anderson. 15. For a grant of leave to appeal the applicants must show: that there a reasonably arguable case of error on the part of the primary decision; 2 there a reasonable prospect that the applicant will obtain substantive relief; 3 or to correct a substantial injustice to the applicant caused by some error. 4 Leave may also be granted if there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage. 5 16. Here the applicants have been unable to satisfy this Tribunal on any of the above criteria. As no error on the part of the learned adjudicators has been established, and none is apparent, leave to appeal is refused. 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232 at [13]. 4 QUYD Pty Ltd v Marvass Pty Ltd (supra). 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. -- 4 of 4 --