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State of Queensland through the Department of Housing and Public Works v Boyd[2016] QCAT 79

State of Queensland through the Department of Housing and Public Works v Boyd[2016] QCAT 79

CITATION:

State of Queensland through the Department of Housing and Public Works v Boyd [2016] QCAT 79

PARTIES:

State of Queensland through the Department of Housing and Public Works

(Applicant)

 

v

 

Norma Boyd

(Respondent)

APPLICATION NUMBER:

MCDT337-16

MATTER TYPE:

Residential tenancy matters

HEARING DATE:

7 March 2016

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Stanton

DELIVERED ON:

14 March 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. A termination order is made in respect of premises at 30 Delphinus Street, Inala on the grounds of failure to leave as and from 18 March 2016.
  2. I direct the issue of a warrant of possession to the principal officer of Police at the relevant Police Station in the State of Queensland in the following terms:

This warrant takes effect on 19 March 2016.

Whereas the Queensland Civil and Administrative Tribunal has made the Termination Order above, you are authorised for a period of 14 days from the above date expiring on 1 April 2016

  1. (i)
    To enter the premises and give possession of the premises to the Applicant herein and
  2. (ii)
    To exercise such powers under this warrant with necessary and reasonable help and force

Entry under this Warrant to be made between the hours of 8.00am and 6.00pm.

CATCHWORDS:

MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where tenant served with notice to leave – where tenant failed to vacate – where application for termination made

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), ss 290A, 293, 297A, 340, 345A

APPEARANCES:

APPLICANT:

Mr Clapperton, Government Legal Officer

RESPONDENT:

Mr Templeton of Counsel, instructed by Caxton Legal Centre Inc

REASONS FOR DECISION

  1. [1]
    Ms Boyd has been the tenant of a 4 bedroom property at Inala (the property) since 18 June 2013. The applicant is the lessor of that property.
  2. [2]
    On 14 January 2016, the applicant served a notice to leave upon Ms Boyd, which was issued pursuant to s 290A of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (The Act). It required her to vacate the property by 22 January 2016.
  3. [3]
    Ms Boyd failed to vacate the property and an application was filed with the tribunal on 5 February 2016 by which the applicant sought a termination order.
  4. [4]
    The applicant subsequently filed an amended application by which it also relied upon the provisions of s 297A and s 345A of the Act.
  5. [5]
    Both parties filed considerable affidavit and other material prior to the hearing on 7 March 2016.

The applicable law

  1. [6]
    By s 290A of the Act, the lessor may give a notice to leave the premises to the tenant if the lessor believes the tenant, an occupant, a guest of the tenant or a person allowed on the premises by the tenant has used the premises for an illegal activity.
  2. [7]
    The service of a prior notice to remedy breach is not required before the issue of a notice to leave under s 290A.
  3. [8]
    By s 293, the lessor may apply for a termination order if a notice to leave is given and the tenant fails to hand over vacant possession. By s 340, the Tribunal may make the order if it is satisfied the lessor has established the ground of the application and notice to leave.

Conclusions

  1. [9]
    The applicant’s material included an affidavit by Kerrie Sessarago of the Inala Housing Service Centre which provided considerable background information in respect of the tenancy and the many issues those arose. It also relied upon the affidavit of Senior Constable Feao of the Inala Police Station which attached in excess of 150 pages of various police documents. Senior Constable Feao also gave evidence.
  2. [10]
    The applicant also relied upon an affidavit of Ms Boyd sworn on 18 June 2013, this being the first day of the tenancy, which read as follows:

…Department of Housing and Public Works has offered me a new tenancy due to a department initiated transfer for reasons of anti-social behaviour and have advised me of my obligations to adhere to my tenancy agreement.

That the reason for me to transfer was due to ongoing anti-social behaviour and the Inala Housing Service Centre have explained to me the new Anti-Social Behaviour policy of the three strikes and breach procedures.

I will take full responsibility and accountability for my tenancy at the address above, that if any complaints regarding anti-social behaviour are received by the department that the department will take appropriate action to terminate my tenancy.

  1. [11]
    Ms Boyd gave evidence in person and was cross-examined extensively, particularly on the issue of criminal activity of some persons who had either visited the property or had stayed there, including some members of her own family. The police records disclose that a considerable number of persons who have been charged with various criminal offences have had an association with members of Ms Boyd’s family and had at various stages visited the property. However, Ms Boyd said in evidence that many of such persons were no longer permitted to attend the property.
  2. [12]
    In a number of respects, Ms Boyd’s evidence was unsatisfactory. She was reluctant to acknowledge her adult daughter Keisha’s involvement with a drug offence. The Police court brief clearly establishes that a search warrant was executed at the property on 27 August 2015 and that subsequently Keisha was charged with unlawfully having in her possession a thing namely water pipe that she used in connection with the smoking of a dangerous drug. It is also noted that another adult daughter, Kirsten was also charged with various drug offences. I accept the affidavit evidence of Senior Constable Feao and Kerrie Sessarago where it is in conflict with the evidence of Ms Boyd.
  3. [13]
    I am satisfied that both of Ms Boyd’s adult daughters used the premises for an illegal activity, namely drug offences, and that over the relevant time, they were persons who were permitted by Ms Boyd to occupy the premises.  There is also evidence of much other criminal activity by other persons who had visited the premises. However, it is not necessary to make further findings on such matters.
  4. [14]
    The applicant relies upon various other affidavits which were filed in the matter. However, those affidavits were not served and the names and addresses of the deponents were not disclosed for reasons of confidentiality. In reaching the conclusions I have, it has not been necessary for me to consider such further affidavit material.
  5. [15]
    I am satisfied that this is an appropriate matter where the Tribunal should exercise its discretion to make a termination order.  The applicant has established the ground of the application and notice to leave. All the facts and circumstances relevant to the issue of the notice to leave and subsequent termination application make it abundantly clear that the discretion should be exercised to terminate the tenancy. It is not necessary to consider the further provisions of s 290A(1)(b)(iii) nor the alternate claim that is made under s 297A of the Act.

Orders

  1. A termination order is made in respect of premises at 30 Delphinus Street, Inala on the grounds of failure to leave as and from 18 March 2016.
  2. I direct the issue of a warrant of possession to the principal officer of Police at the relevant Police Station in the State of Queensland in the following terms:

This warrant takes effect on 19 March 2016.

Whereas the Queensland Civil and Administrative Tribunal has made the Termination Order above, you are authorised for a period of 14 days from the above date expiring on 1 April 2016

  1. (i)
    To enter the premises and give possession of the premises to the Applicant herein and
  2. (ii)
    To exercise such powers under this warrant with necessary and reasonable help and force

Entry under this Warrant to be made between the hours of 8.00am and 6.00pm.

Close

Editorial Notes

  • Published Case Name:

    State of Queensland through the Department of Housing and Public Works v Norma Boyd

  • Shortened Case Name:

    State of Queensland through the Department of Housing and Public Works v Boyd

  • MNC:

    [2016] QCAT 79

  • Court:

    QCAT

  • Judge(s):

    Adjudicator Stanton

  • Date:

    14 Mar 2016

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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