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Queensland Judgments
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  • Unreported Judgment

Prospero v Carney

 

[2019] QCATA 152

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Prospero v Carney [2019] QCATA 152

PARTIES:

ninette prospero

 

(applicant)

 

v

 

KATRINA MAREE CARNEY

 

(respondent)

APPLICATION NO/S:

APL256-19

ORIGINATING

APPLICATION NO/S:

MCD560/19 (Ipswich)

MATTER TYPE:

Appeals

DELIVERED ON:

29 October 2019

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

The application to extend the time for filing the application for leave to appeal or appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – PROCEDURE – TIME, EXTENSION AND ABRIDGMENT – MINOR CIVIL DISPUTE – where delay in filing the application for leave to appeal or appeal – whether discretion should be exercised to grant an extension of time to file the application for leave to appeal or appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 61, s 143

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 293, s 326, s 329

Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70

Pappas v Meikeljohn’s Accountants [2017] QCATA 60

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    Ninette Prospero, rented a property in Brassall, Queensland (as the ‘Tenant’) from Katrina Carney (as the ‘Lessor’) under a residential tenancy agreement for a fixed term starting from 6 July 2018 and ending on 5 July 2019 (‘the Tenancy’).
  2. [2]
    The Tenancy was managed by the Landlord’s agent, Rhino Property Management.
  3. [3]
    Prior to the Tenancy ending the Landlord issued a Notice to leave (Form 12) dated 16 April 2019 to the Tenant giving more than two (2) months’ notice to vacate the premises by midnight on 5 July 2019.[1]
  4. [4]
    The Lessor’s agent later applied to the Tribunal for an order to vacate the premises on the basis that, as provided in the application, the Landlord ‘requires the property for family moving up from interstate’ and the Tenant was given more than two (2) months’ notice in writing to vacate.[2] The application for minor civil dispute – residential tenancy (Form 2) identified the premises as being in the suburb of Bellbird Park (not Brassall).
  5. [5]
    Following an oral hearing, an Adjudicator sitting in the Tribunal’s Minor Civil Disputes jurisdiction ordered that the residential tenancy agreement between the parties be terminated as from midnight on 31 October 2019 on the grounds of failure to leave. The learned Adjudicator also ordered that a warrant of possession issue. Relevantly, the warrant of possession identified the premises as being in the suburb of Bellbird Park (and not Brassall). The warrant of possession was later corrected by the Tribunal to identify the premises as being in Brassall.[3]
  1. [6]
    Ms Prospero wants to appeal the learned Adjudicator’s decision made on 20 August 2018 in MCD560/19 (Ipswich). Ms Prospero also seeks a stay of the learned Adjudicator’s decision to terminate the Tenancy and that a warrant of possession issue. Because the application for leave to appeal or appeal was filed outside the prescribed time of 28 days under s 143(4)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), Ms Prospero requires an extension of time to file the application for leave to appeal or appeal.
  2. [7]
    On 29 October 2019 2019 I refused Ms Prospero’s application to extend the time for filing the application for leave to appeal or appeal. Ms Prospero requested reasons for my decision made that are now set out below.[4]

The application to extend time

  1. [8]
    Ms Prospero filed the application for leave to appeal or appeal on 26 September 2019 being nine (9) days outside the prescribed time under the QCAT Act. Relevantly, section 143(4)(b) of the QCAT Act provides that an application for leave to appeal or appeal (Form 39) must be filed in the registry within 28 days after the relevant day. Here, the ‘relevant day’ is by 4:00pm on 17 September 2019, being the day Ms Prospero is given reasons for the decision.[5]
  2. [9]
    Ms Prospero now applies for an extension of time to file the application for leave to appeal or appeal. Relevantly, there is power under the QCAT Act to extend a time limit fixed for the start of a proceeding.[6] Although the power to extend time involves the exercise of a broad discretion, s 61(3) of the QCAT Act provides that the Tribunal cannot extend or shorten time if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding. The usual considerations that apply in exercising the discretion to grant an extension of time include the length of delay; whether the party has provided an adequate explanation for the delay; the merits of the proceeding; prejudice to others; and the interests of justice.[7]
  3. [10]
    Ms Prospero provides ‘reasons’ for the delay in filing the Form 39 now set out below as follows:
    1. (a)
      I state that within application on Form 2, of claim 560/19 of incorrect detail provided to the Tribunal on 20 August 2019;
    2. (b)
      I state that the matter should be reviewed and the Lessor’s agent to provide evidence given verbally to the Adjudicator in rehearing; and
    3. (c)
      I state that the matter was one of personal interest to the agent and thereby solely a conflict of interest.
  4. [11]
    I have carefully considered Ms Prospero’s submissions and the ‘reasons’ for the delay in filing the Form 39. I am not satisfied based on all of the material before me that Ms Prospero has provided an adequate explanation for the delay in filing the Form 39. The record of proceeding shows that Ms Prospero attended the Tribunal hearing before the learned Adjudicator on 20 August 2019 and therefore had the benefit of hearing the Tribunal’s oral reasons. It is open for me to find that Ms Prospero had sufficient time (i.e. from 20 August 2019) to consider whether she wished to proceed with filing a Form 39.
  5. [12]
    I have also considered the merits of the proceeding. Although the Form 2 filed in the proceeding below (in MCD560/19) incorrectly identifies the premises as being in Bellbird Park and not Brassall, the warrant of possession was later corrected by the Tribunal to identify the premises as being in Brassall. Further, there is no error identified by Ms Prospero (as the Tenant) with the Notice to leave (Form 12) issued by the Landlord and the required notice given to the Tenant to vacate the premises. Indeed, the Form 12, amongst other things, is signed by the Lessor’s agent, correctly identifies the premises as being located in the suburb of Brassall, the Tenant and Lessor names and provides the ground on which the notice is given.[8] Further, the Form 12 gives the Tenant more than the required two (2) months’ notice to vacate the premises as provided under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).[9] It is open for me to find that Ms Prospero’s application (Form 39) filed in APL256-19 has limited prospects of success.
  6. [13]
    Ms Prospero has failed to convince me that there is a compelling reason for granting an extension of time to file the Form 39. Compliance with time limits is consistent with the public interest in the finality of litigation.[10] Time limits must be complied with unless there is a compelling reason for the noncompliance.  I have decided to exercise my discretion against the granting of an extension of time in this matter. The application for an extension of time for filing the application for leave to appeal or appeal is refused. I order accordingly.

Footnotes

[1]  See Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRA Act’), s 329.

[2]  Application for minor civil dispute – residential tenancy dispute (Form 2) filed on 19 July 2019 in MCD560/19 (Ipswich).

[3]  See application for reopening, correction, renewal or amendment filed on 1 October 2019 in MCD560/19 (Ipswich).

[4]  Decision dated 29 October 2019 and see Appeal Tribunal Directions dated 3 October 2019.

[5] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 143(5)(c).

[6]  QCAT Act, s 61.

[7] Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70, [26].

[8]  See s 326 and s 329 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).

[9]  Ibid.

[10] Pappas v Meikeljohn’s Accountants [2017] QCATA 60, [10] (Thomas J).

Close

Editorial Notes

  • Published Case Name:

    Ninette Prospero v Katrina Maree Carney

  • Shortened Case Name:

    Prospero v Carney

  • MNC:

    [2019] QCATA 152

  • Court:

    QCATA

  • Judge(s):

    Member Browne

  • Date:

    29 Oct 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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