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Savage Resorts Pty Ltd v Maksymiuk[2015] QCATA 38

Savage Resorts Pty Ltd v Maksymiuk[2015] QCATA 38

CITATION:

Savage Resorts Pty Ltd v Maksymiuk [2015] QCATA 38

PARTIES:

Savage Resorts Pty Ltd

(Applicant/Appellant)

v

Richard Maksymiuk

(Respondent)

APPLICATION NUMBER:

APL498-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Justice D Thomas, President

DELIVERED ON:

19 March 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application to strike out the application for leave to appeal is dismissed.
  2. The application for leave to appeal is stayed pending further decision of the appeals tribunal.
  3. Mr Maksymiuk shall file and serve any submissions in support of the application to stay/application for injunction by 25 March 2015.
  4. Savage Resorts Pty Ltd shall file and serve any submissions in response by 8 April 2015.
  5. The application to stay/application for injunction shall be determined on the papers not before 8 April 2015.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where notice to leave – where authority to issue notice to leave disputed – where adjournment to allow further evidence of authority – where tribunal did not accept further evidence established authority – where application to strike out application for leave to appeal – where non-compliance with directions – whether grounds to strike out application for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 61(1)(b)

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

  1. [1]
    Mr Maksymiuk lives in the Il Centro Apartment Hotel, which is managed by Savage Resorts Pty Ltd (“Savage”). Savage has attempted, a number of times, to terminate Mr Maksymiuk’s tenancy. Those attempts have been the subject of a number of applications to the tribunal and a number of appeals to the appeals tribunal. It is necessary to set out the history of the multiple proceedings in order to determine this application, including the application to stay/application for injunction which has been recently filed.
  2. [2]
    On 10 June 2014, Savage served a notice to leave without grounds. Mr Maksymiuk applied to set aside that notice. On 11 August 2013 a Magistrate, sitting as a member of the tribunal, dismissed Mr Maksymiuk’s application, finding that the notice was valid.
  3. [3]
    Mr Maksymiuk filed an application for leave to appeal that decision. On 15 January 2015, the appeal tribunal refused leave to appeal.
  4. [4]
    On the strength of the Magistrate’s decision of 11 August 2014, Savage filed an application for termination for failure to leave. A different Magistrate dismissed that application. That decision is the subject of this application for leave to appeal.
  5. [5]
    Mr Maksymiuk has filed an application to stay/application for injunction. The main ground for the stay or injunction is that this decision depends upon a previous decision of the appeal tribunal, which is now the subject of an application for leave to appeal to the Court of Appeal.
  6. [6]
    Mr Maksymiuk has also filed an application to strike out Savage’s application for leave to appeal. The determination of that application is not dependent upon the previous decision of the appeal tribunal and, if Mr Maksymiuk’s application to strike out is successful, it will deal with all matters the subject of this application for leave to appeal. Therefore, it is appropriate that I deal with the application to strike out this application for leave to appeal.
  7. [7]
    Mr Maksymiuk’s first ground for striking out the application for leave to appeal is that Savage did not establish the primary issue; that is, whether the learned Magistrate was in error. That is a matter that is at the heart of the application for leave to appeal. It is not a proper ground on which to strike out Savage’s application.
  8. [8]
    The second ground for striking out the application for leave to appeal is that Savage did not comply with the directions made on 21 November 2014. It seems Savage did not establish that Mr Maksymiuk received a copy of the application for leave to appeal by 1 December 2014, being the relevant date. Savage filed an affidavit of service on 24 December 2014, in which Mr Savage states that he served Mr Maksymiuk on 1 December 2014. The position was that Mr Maksymiuk was served, but proof of service was not filed until after the due date. The tribunal has power to excuse non-compliance with directions[1]. To the extent that it is necessary, I exercise my discretion to extend compliance with paragraph 1 of the directions dated 21 November 2014.
  9. [9]
    Mr Maksymiuk also says that Savage did not comply with paragraph 2 of that direction, which required any further material to be filed and served on Mr Maksymiuk by 22 December 2014. The tribunal’s records show that Savage complied with the date for filing. In the body of his application, Mr Maksymiuk says he did not receive the material before 4.00pm on 22 December 2014. This recent complaint (the application was filed on 9 February 2015) is not supported by any evidence.
  10. [10]
    The third ground for striking out the application for leave to appeal is that Savage did not serve Mr Maksymiuk personally, but used a lawyer to effect service on him. Mr Maksymiuk states that, because Savage did not have leave to be represented, this was invalid service. Section 43 of the QCAT Act relates to representation for appearances before the tribunal. The tribunal has always taken the view that parties can obtain whatever legal assistance they require without the leave of the tribunal except for assistance in appearing before the tribunal. That is the correct approach based on the wording of the statute. I note that Savage is a company – it must always act through an agent.
  11. [11]
    Mr Maksymiuk also states that the documents he received were not lodged, accepted or sealed by the tribunal and, therefore, did not comply with the direction. The direction only required that Mr Maksymiuk receive copies of documents that were filed with the tribunal. It did not direct that Savage serve sealed copies. There is no merit in this ground.
  12. [12]
    The fourth ground for striking out the application for leave to appeal is that Savage asked for leave to file fresh evidence and then went ahead and filed it before the application to file fresh evidence had been determined. This is a question of procedure. It does not go to the substance of the application for leave to appeal and is not a basis for striking out that application.
  13. [13]
    The fifth ground for striking out the application for leave to appeal is that Savage is not the authorised agent of the owner. This is the issue to be determined in the application for leave to appeal. Therefore, it would be inappropriate to decide this as a preliminary issue on an application to strike out.
  14. [14]
    The sixth ground for striking out the application for leave to appeal is that Savage’s lawyer emailed the documents to Mr Maksymiuk before filing them with the appeals tribunal. Mr Maksymiuk says that the tribunal will only accept documents in paper form, so this method of service was invalid.
  15. [15]
    As to this submission, at the base of each communication with the tribunal, Mr Maksymiuk notes that the best way to contact him is by email. It is true that the tribunal will not accept or receive electronic evidence at a hearing, but it is not true that the tribunal will not accept documents electronically. In fact, based on his request, the tribunal regularly communicated with Mr Maksymiuk electronically. By filing this application, Mr Maksymiuk has acknowledged receipt of the application for leave to appeal and the submissions.
  16. [16]
    Mr Maksymiuk’s application to strike out the application for leave to appeal is dismissed.
  17. [17]
    Mr Maksymiuk has also filed an application to stay/application for injunction against the substantive decision in the application for leave to appeal. His reason is that the decision of the Court of Appeal in his current appeal to the Court of Appeal may render the application for leave to appeal to the QCAT appeal tribunal unnecessary. Whilst that is not the position with respect to the strike out application, it is appropriate to deal with that application in the context of the appeal to the appeal tribunal by directions as follows:
    1. a)
      The application for leave to appeal is stayed pending further decision of the appeal tribunal.
    2. b)
      Mr Maksymiuk shall file and serve any submissions in support of the application to stay/application for injunction by 25 March 2015.
    3. c)
      Savage Resorts Pty Ltd shall file and serve any submissions in response by 8 April 2015.
    4. d)
      The application to stay/application for injunction shall be determined on the papers not before 8 April 2015.

Footnotes

[1] QCAT Act s 61(1)(b).

Close

Editorial Notes

  • Published Case Name:

    Savage Resorts Pty Ltd v Richard Maksymiuk

  • Shortened Case Name:

    Savage Resorts Pty Ltd v Maksymiuk

  • MNC:

    [2015] QCATA 38

  • Court:

    QCATA

  • Judge(s):

    Thomas P

  • Date:

    19 Mar 2015

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2016] QCATA 18402 Dec 2016Appeal by Savage in respect of QCAT's 14 Oct 2014 decision. Leave to appeal granted. Appeal is allowed and the matter remitted back to be reheard by the Tribunal with additional evidence including the evidence which was before Magistrate Comans: Justice DG Thomas, President
Primary Judgment[2015] QCATA 515 Jan 2015Application for leave to appeal dismissed: Acting Deputy President Stilgoe.
Primary Judgment[2015] QCATA 3819 Mar 2015Savage applied for leave to appeal in respect of QCAT's decision (14 October 2014). Maksymiuk’s Application to strike out the application for leave to appeal dismissed. Application for leave to appeal is stayed pending further decision of the appeals tribunal: Justice D Thomas, President.
Primary Judgment[2015] QCATA 8612 Jun 2015Maksymiuk's application for an injunction refused: Justice Thomas, President.
Primary Judgment[2015] QCATA 9018 Jun 2015Maksymiuk's application for an adjournment of proceedings dismissed: Judge Horneman-Wren SC, Acting President.
Primary Judgment[2015] QCATA 18801 Sep 2015Maksymiuk's applications for various miscellaneous orders refused: Justice D Thomas, President.
Primary Judgment[2016] QCATA 8111 Apr 2016Maksymiuk's application for an Injunction dismissed. Further directions made: Justice D Thomas, President.
Primary JudgmentQCAT (No citation)11 Aug 2014Application seeking to challenge a notice to leave under the Residential Tenancies and Rooming Accommodation Act 2008. Application dismissed. Notice valid: Magistrate Comans.
Primary JudgmentQCAT (No citation)14 Oct 2014Savage filed an application for termination for failure to leave. Application dismissed: Magistrate Pinder.
Notice of Appeal FiledFile Number: 2431/1524 Feb 2015APL367/14
Appeal Determined (QCA)[2015] QCA 17725 Sep 2015Application for leave to appeal [2015] QCATA 5 refused. Applicant ordered to pay the respondent’s costs of the application to be assessed: McMurdo P, North J, Henry J.

Appeal Status

Appeal Determined (QCA)

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