Edwards v Cotton Tree Caravan Park [2010] QCATA 3

CITATION: Edwards v Cotton Tree Caravan Park [2010] QCATA 3 PARTIES: Bruce Allan Edwards (Applicant) v David Cherry trading as Cotton Tree Caravan Park (Respondent) APPLICATION NUMBER: APL 006-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: President DELIVERED ON: 30 March 2010 DELIVERED AT: Brisbane ORDERS MADE: Application for Leave to Appeal refused. CATCHWORDS : RESIDENTIAL TENANCIES - NOTICE TO LEAVE FROM LESSOR’S AGENT TO TENANT – WHETHER RETALIATORY – Residential Tenancies and Rooming Accommodation Act 2008, s 291 FRAUD - ALLEGATIONS OF FRAULENT STATEMENTS – where tenant alleges that factual evidence relied upon by the Lessor’s agent were false and misleading PROCEDURAL FAIRNESS – ALLEGATION OF LATE SUBMISSIONS – whether surprising and unfair Residential Tenancies and Rooming Accommodation Act 2008, s 291 APPEARANCES and REPRESENTATION (if any): APPLICANT : RESPONDENT: -- 1 of 6 -- «CaseCode» / Page 2 of 6 -- 2 of 6 -- «CaseCode» / Page 3 of 6 REASONS FOR DECISION [1] The applicant Mr Edwards and Ms Christine Edwards lived in Cotton Tree Caravan Park between late 2005 and early 2010. On 20 January 2010 they were ordered to leave by a Magistrate, sitting as an adjudicator in this Tribunal. Mr Edwards (but not Ms Edwards) has applied for leave to appeal that decision. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i). [2] The learned Magistrate held that the Edwards’ tenancy in the park had been lawfully terminated by the park operator pursuant to a Notice under the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA) served upon them on 7 September 2009, which required them to leave within 3 months i.e. by 6 December 2009; that they had failed to leave in compliance with the notice; and, that the operator of the park was entitled to an order terminating the tenancy forthwith, and for a further order that a warrant for possession be issued. [3] This Tribunal ordered that the application for leave to appeal be determined by written submissions from the parties, which each delivered. Mr Edwards (and Ms Edwards) delivered lengthy submissions with eleven documents attached as appendices. Their submissions may be summarised as: (a) a claim that the allegations of fact relied upon by the park operators in the proceedings before the Magistrate, leading to their eviction, were false and fraudulent; and (b) an allegation that at the hearing on 20 January 2010 they were denied natural justice because, shortly before the hearing commenced, Mr Cherry handed them a copy of his submissions containing new information to which they had no or no adequate opportunity to respond [4] The RTRA came into effect on 1 July 2009, repealing the former Residential Tenancies Act 1994 (RTA). Because the Edwards tenancy in the caravan park commenced before 1 July 2009 it was necessary for the learned Magistrate to consider the definitions under the former legislation. Under s 530(a) of the RTRA, however, that Act applies to existing agreements under the RTA. [5] It was common ground that no written tenancy agreement was in existence between the parties, but the Edwards’ had occupied various caravans within the park for over 4 years. Those circumstances indicated the existence of a residential tenancy agreement under s 8 of the RTA, which defines an agreement of that kind as one under which a person gives someone else a right to occupy residential premises, whether the agreement is express, or implied. Ss 5 and 6 show that ‘premises’ include a caravan and its site, used or intended to be used as place of residence. [6] Pursuant to s 4 of the RTA, then, the operator of the caravan park was the ‘lessor’ under that residential tenancy agreement, and Mr Edwards and Ms -- 3 of 6 -- «CaseCode» / Page 4 of 6 Edwards were the ‘tenant’: s 9. The agreement was what the RTA calls a ‘periodic agreement’ because it was not for a fixed term: Schedule 3. [7] The residential tenancy agreement under the RTA is now governed under the RTRA, pursuant to its transitional provisions – s 530(a), which defines an existing agreement to include a residential tenancy agreement under the RTA. [8] The RTRA provides1 for a number of ways in which a residential tenancy may be brought to an end including, relevantly here, by a Notice to leave without ground under s 291. A notice of that kind in Form 12 was served upon Mr Edwards and Ms Edwards on 7 September 2009, giving them 3 months to leave. [9] S 291 prevents the lessor giving a notice without ground if the notice is prompted by some action the tenant has taken to enforce his or her rights, or ‘…constitutes taking retaliatory action against the tenant’. Under s 292 a tenant who believes a notice contravenes those provisions may apply for an order to set it aside within 4 weeks after it was given. Nothing in the evidence or submissions from Mr Edwards or Ms Edwards suggests they took any step under s 292, or raised any allegations under ss 291(2) or (3). [10] As a matter of general principle an applicant for leave to appeal should show a prima facie case of error in the primary decision, and that there is a question of importance upon which further argument and a decision of the Appeal Court would be to public advantage: 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. [11] These matters were not addressed by Mr Edwards in his submissions. Although the learned Magistrate’s reasons are terse they reflect the process of reasoning from the previous, and current legislation explored earlier which, on its face, involves no apparent error. Nor, as already remarked, did the Edwards attempt any attack upon the validity of the notice to leave without ground. [12] As to the first of the submissions advanced by Mr Edwards (that ‘the facts that resulted in us…being evicted were false and fraudulent fact drawn together by David Cherry...’) no attempt has been made to particularise the allegation or advance any evidence in support of it. Nothing can be found, in the four pages of typed submissions from Mr Edwards and Ms Edwards in support of their application for leave to appeal suggesting any untruthfulness or misleading statements in the evidence of Mr Cherry (or Miss Hammill, a person associated with the operators of the caravan park who accompanied him to the hearing). [13] As to the allegation that the applicants were denied natural justice, the Edwards’ submissions and the transcript of the proceedings before the learned Magistrate show that the hearing began on 24 December 2009 and, during it, Mr Cherry gave the Edwards and the Magistrate an affidavit, after which the hearing was adjourned to 20 January 2010. 1 Chapter 5, Part 1, Division 2, Subdivision 2 -- 4 of 6 -- «CaseCode» / Page 5 of 6 [14] The transcript of the resumed hearing shows that Mr Cherry did hand up some further submissions, and that he had attempted to give it to the Edwards’ before the hearing commenced. The Magistrate invited Mr Edwards to read it before he looked at it and, the transcript shows, that is what occurred. [15] The balance of the transcript of the second hearing shows Mr Edwards making a number of submissions to the Magistrate, who clearly explained his understanding of the legislation and its legal effects to Mr Edwards and invited him to make any further submissions he wished. [16] The submissions handed up by Mr Cherry at the second hearing are attached to both the Edwards’ submission in support of their application for leave to appeal, and, also, the respondent’s submissions. Nothing in them is surprising, or unfair, or necessitated an adjournment to allow the Edwards’ time to properly respond. They recite an uncontentious history of the Edwards’ residence within the caravan park, and refer to the relevant parts of both the former, and present Acts. Mr Cherry did present evidence to the Magistrate, and claimed in those submissions, that the Edwards’ continued residence in a caravan in the park on a permanent basis was contrary to the purposes for which the park land was supposed to be used but that was not relevant to the Magistrate’s decision and was not, apparently, relied upon in by him. [17] In the result, there is nothing to suggest the Edwards’ were denied procedural fairness. Indeed, the earlier adjournment of the matter in December signifies how careful the learned Magistrate was to ensure that they were not surprised, had every opportunity to prepare their case, and were afforded all the requisite elements of natural justice. [18] Some other aspects of the application for leave to appeal from the Edwards’ should, for the sake of completeness, be addressed. [19] In their written submissions the Edwards assert that but for a breach by the respondents of s 39 of the RTA they would have been protected by a written agreement. That section did require a lessor to ensure that an agreement was in writing and a failure could attract a penalty but it does not otherwise suggest that a breach negates the creation of a residential tenancy agreement. Rather, as s 8 of the RTA makes clear, an agreement of that kind can arise by implication, and need not be express. [20] In the course of his oral submissions to the Magistrate Mr Edwards did refer, in an indirect way, to the possibility that no residential tenancy agreement might exist because the caravan park is primarily used ‘for holiday purposes’. Both s 21(1) of the RTA and s 31(1) of the RTRA say that the legislation does not apply to a residential tenancy agreement if the right of occupancy of the premises is given for holiday purposes but, in both Acts, the following subsection makes it clear that a right to occupy premises for more than 6 weeks is evidence that the right was not given for holiday purposes. Here, of course, the implied right of occupancy was for a period of 4 years. [21] Further, under the RTRA special provisions apply to moveable dwelling premises, a termed defined to include a caravan and its site. Under Chapter -- 5 of 6 -- «CaseCode» / Page 6 of 6 1 Part 4 Division 4 a tenancy of more than 42 days is a long tenancy (movable dwelling). The notice to leave provisions mentioned earlier apply to movable dwelling premises and if, as here, the tenancy is not a short tenancy (moveable dwelling) then a notice to leave without ground for a periodic agreement must be not less than 2 months: s 330(2)(l). The notice here was for a longer period – 3 months. It follows that, even if these provisions applied (a submission which was not made) the notice served by the park operators complied with the requirements of the RTRA. [22] In the circumstances the application raises no ground warranting leave to appeal, and is dismissed. -- 6 of 6 --