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- Appeal Determined (QCA)
Maksymiuk v Savage QCATA 5
Maksymiuk v Savage  QCATA 5
Warren Savage t/as Savage Resort Pty Ltd t/as Il Centro Apartment Hotel
13 January 2015
Acting Deputy President Stilgoe OAM
15 January 2015
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where notice to leave without grounds – where application to set aside notice – where application dismissed – whether notice retaliatory – whether grounds for leave to appeal
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 291
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur  QCA 294
Chambers v Jobling (1986) 7 NSWLR 1
Bamfield v Zanfan Pty Ltd t/a Main Street
Realty Caloundra  QCATA 1
APPEARANCES and REPRESENTATION (if any):
REASONS FOR DECISION
- Il Centro Apartment Hotel caters, mainly, for short stay travellers. In 2012, Mr Maksymiuk rented an apartment on this basis but he never left.
- Mr Savage has tried to end Mr Maksymiuk’s tenancy on a number of occasions. He served a notice to leave with grounds on 1 October 2013. The tribunal refused to terminate the tenancy pursuant to that notice. Mr Savage served another notice to leave with grounds on 1 March 2014. The tribunal refused to terminate the tenancy pursuant to that notice. Mr Savage served a notice to leave without grounds on 1 March 2014. The tribunal refused to terminate the tenancy pursuant to that notice because the notice was one day short of the required notice period.
- Mr Savage then served another notice to leave without grounds, which is the subject of this application. Finally, the tribunal ordered the termination of the tenancy.
- Mr Maksymiuk wants to appeal that decision. He says the learned Magistrate was biased and discriminatory. He says that the learned Magistrate proceeded on the incorrect assumption that a lessor was entitled to vacant possession of the tenancy. He says the learned Magistrate did not correctly apply the law as it relates to retaliatory action. He says that the notice is invalid because Mr Savage was neither the owner nor the agent of the owner when he purported to give the notice.
- Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.
- There are some preliminary matters with which I must first deal. Mr Maksymiuk made a number of applications for an injunction which were not actioned by the appeal tribunal. The reason is understandable, but not excusable. An application for injunction may be made simply by sending a letter to the tribunal. Mr Maksymiuk wrote many letters to the tribunal in a closely typed, difficult-to-read font. The registry placed these letters on the correspondence section of the file so that they did not come to my attention. It is an unfortunate error but not one that impacted adversely on Mr Maksymiuk’s rights. Even though the tribunal had terminated the tenancy agreement, Mr Maksymiuk was still in residence and Mr Savage had taken no action to remove him.
- On 27 August 2014, I issued standard directions for the determination of the appeal. I ordered that the application for leave to appeal and the appeal be heard together. I also ordered that Mr Maksymiuk file and serve his submissions by 17 September 2014. Mr Savage had to file and serve his submissions within 28 days after Mr Maksymiuk filed his submissions.
- Mr Maksymiuk thought the directions were unfair, because Mr Savage had twenty-eight days to file submissions whereas he had only twenty-one days. I do not agree. It is Mr Maksymiuk’s application. He should already know the grounds of his appeal and, in broad terms, the submission he will make to support the application. I am not persuaded that providing a respondent with additional time to meet an application about which he knew nothing until receipt of the directions was unfair, illegal or biased.
- In any event, another Senior Member of the tribunal, acting as the appeals tribunal, gave Mr Maksymiuk an extension of time until 3 October 2014. The date for Mr Maksymiuk’s compliance was further extended to 19 December 2014. There can be no suggestion that Mr Maksymiuk has not been given a fair opportunity to file submissions.
- Mr Maksymiuk also thought the direction were unfair because the application for leave to appeal and the appeal were to be heard together. I addressed that concern in directions of 10 October; Mr Maksymiuk was only required to make submissions on the application for leave to appeal.
- Mr Maksymiuk’s application for extensions of time, and his actual submissions, argue that he cannot provide full and proper submissions until he has received the learned Magistrate’s reasons for decision.
- The transcript shows the learned Magistrate gave reasons for his decision at the conclusion of the hearing. The file shows that the tribunal sent those reasons to Mr Maksymiuk on 7 October 2014. Mr Maksymiuk acknowledges receipt of that document on 10 October 2014.
- Mr Maksymiuk takes issue with the transcript, saying that it was not a legal document, not the transcript, he cannot verify that it was the transcript, it contained lies, and was therefore useless for his appeal. I am satisfied that Mr Maksymiuk has received the reasons for the learned Magistrate’s decision, and that he has been given sufficient time to make submissions based upon the reasons he received. Indeed, a careful examination of Mr Maksymiuk’s submission indicates that he did have reference to the transcript.
- Because of the confusion of documents Mr Maksymiuk filed, and the nature of his submissions, I formed the view that an oral hearing of this application would be more efficient for the appeals tribunal and fairer to the parties. By direction of 17 December 2014, I listed the application for an oral hearing on 13 January 2015. Mr Maksymiuk applied to adjourn the hearing, on the basis that he was respondent to another application for leave to appeal, his submissions on that application were due around the same time, and he could not focus on two matters at once. I refused Mr Maksymiuk’s application for adjournment but vacated the orders in the other application for leave to appeal, leaving him free to concentrate on this application.
- Mr Maksymiuk had leave to attend the hearing by telephone. He did not attend the hearing. He filed submissions on 12 January 2015 which stated, in part:
Maksymiuk is very sorry that he will not be able to attend scheduled for 13/jan/2015 @13h30 on-paper oral hearing, additionally;
AT THIS TIME MAKSYMIUK DOES NOT HAVE ANYTHING ELSE TO ADD TO SUBMISSION HE LODGED IN CAIRNS REGISTRY ON 19/DEC/2014 TO SUPPORT HIS POSITION, HE DEFINITELY SHALL HAVE ADDITIONAL REASONS TO DECRIBER AFTER HE RECEIVE CASE 325 ORDERED DECISION REASONS
Therefore because MAKSYMIUK can not attend on-paper oral hearing schedule for 13/an/2015 and MAKSYMIUK already lodged on 19/dec/2-14 his submission [submission is partial only 111] for APL367, MAKSYMIUK is certain that he sufficiently documented his position for *on-paper-proceedings*
- In the circumstances, I am satisfied that Mr Maksymiuk has been afforded procedural fairness and that I could proceed to conduct the hearing on 13 January 2015 and determine the issue of whether the appeal tribunal should grant leave to appeal.
- I am also satisfied that, although Mr Maksymiuk has reserved the right to make further submissions, I should proceed on the basis of the submissions filed. Mr Maksymiuk has a history of making part submissions. At the hearing, Mr Maksymiuk told the learned Magistrate that he had not fully completed his submissions, even though he had a month to prepare. At the hearing before me, Mr Savage observed that Mr Maksymiuk was skilled at using the process to delay a decision. While I do not necessarily agree with that submission, this dispute is one which needs finality.
The substantive application
- Mr Maksymiuk submits that the learned Magistrate proceeded on the misconception that a lessor has a right to get his property back from a tenant. His submission is framed this way:
One of his first questions directed to MAKSYMIUK was question affirming owner RIGHT to get back his/her unit from tenant, because it was a *leading* question because he asserted that owner must have right [under RENTING ACT] to get back property …he did ask me if I do not agree with his view, answer to his question was;
NO, owner do not have right under RENRING ACT to get property back, owner may get it back when certain condition fulfil
- The learned Magistrate does make the comment of which Mr Maksymiuk complains. It occurs quite late in the hearing and it is important to put the comment in context:
MR MAKSYMIUK: He has completely problem after problem with me, but this is not on the application. Application has been issued without ground.
BENCH: And you realise, of course, that a landlord can do that, don’t you? That a landlord can make the – can give a tenant notice to leave without grounds, but the law says the tenant has to be given two months notice. Now that’s the compromise
You see, that’s the compromise between the owner of the property and the person who has the lease, or the tenant. That’s the compromise. There’s tension there. The owner’s rights, tenant’s rights. Owner wants you out, gives you two months notice, doesn’t have to say why, the law says he doesn’t have to say why, as long as, as you’ve rightly pointed out …
MR MAKSYMIUK: That’s right.
BENCH: It doesn’t offend against 291.
MR MAKSYMIUK: That’s right. It’s not on …
BENCH: Okay. And that’s what I have to determine. But if there’s no issue with 291, a lessor has every right, under the law, to ask a tenant to move out on two months notice.
- The learned Magistrate correctly identified the law. Mr Maksymiuk agrees with that proposition; the right to recover property is conditional. There is no identifiable error. Therefore, although interesting, I do not need to consider Mr Maksymiuk’s submissions about the philosophy behind the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).
- The bulk of Mr Maksymiuk’s concerns relate to the learned Magistrate’s consideration of s 291 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). It is important to note that this section speaks only of retaliatory action. The Act, and s 291, make no reference to discrimination and the learned Magistrate had no power to determine this dispute on the basis of discrimination.
- Section 291 states that a lessor must not give a notice to leave because:
- a)The tenant has applied, or is proposing to apply, to a tribunal for an order under the Act; or
- b)The tenant –
- i)Has complained to a government entity about an act or omission of the lessor adversely affecting the tenant; or
- ii)Has taken some other action to enforce the tenant’s rights; or
- c)An order of the tribunal is in force in relation to the lessor and tenant.
- Mr Maksymiuk’s submits that, if a lessor has “grounds” to evict a tenant, but they are not valid grounds, then the lessor cannot hide the invalid grounds behind the umbrella of a notice to leave without grounds. To do so, in Mr Maksymiuk’s submission, constitutes retaliatory action.
- The Residential Tenancies and Rooming Accommodation Act 2008 (Qld) is not framed that way. I agree with Mr Maksymiuk that there is always a reason why a lessor wants his property back. If the reason is that the tenant is in breach, the lessor can issue a notice to remedy breach and then a notice to leave. It is a quick process. If, however, the tenant is not in breach, then the lessor can issue a notice to leave without grounds – for whatever reason – and, if the notice is validly given, the tenant must leave at the end of the notice period.
- The Residential Tenancies and Rooming Accommodation Act 2008 (Qld) only protects a tenant if the notice to leave without grounds was given because (my emphasis) of the matters mentioned in s 291. The learned Magistrate was not satisfied that Mr Savage gave the notice because of the matters mentioned in s 291.
- Mr Maksymiuk devoted several pages of submissions to the concept of “retaliatory” action. The appeals tribunal had cause to consider that issue early in the life of the tribunal:
Section 291(3) requires careful consideration of the particular circumstances of each case in which it is raised. If ‘retaliatory’ is construed too broadly, almost any complaint by a tenant to an agent or landlord, or even a less than amicable exchange between them, might qualify. It is improbable the legislature intended that the provision would provide the tenant with such an absolute shield.
Rather, the section appears to be designed to protect the tenant who has justifiably taken action of the kind set out in s 291(2) (or something similar has occurred, like non-compliance with an unwarranted or unjustified notice to remedy under s 281) and has then been served with a Notice which is apparently responsive to the tenant’s acts but also, in the prevailing circumstances, unreasonable, excessive or vindictive.
- That is the test that I will apply.
- At the hearing, Mr Maksymiuk submitted that the notice was retaliatory because he had complained to the Residential Tenancy Authority, and he had successfully applied to the tribunal for orders about previous notices issued by Mr Savage. The learned Magistrate found that Mr Savage did not issue the notice in retaliation but because Mr Maksymiuk’s continued residence was a breach of the Council planning approval for Il Centro.
- The evidence can support the learned Magistrate’s finding. Mr Maksymiuk issued a notice to remedy breach on 30 October 2013. He may say that the time between the notice and the breach is not relevant but I disagree. Unless Mr Maksymiuk then took action about that breach – and there is no evidence that he did – it is simply not credible to suggest that a notice to leave issued over six months later is retaliatory.
- It cannot be an act of retaliation to “try again” when the tribunal has ruled against a previous attempt to terminate a tenancy unless, in the earlier decision, the tribunal found that the action was retaliatory. Mr Maksymiuk’s successes in the tribunal may have made Mr Savage more determined to get it right the next time, but it cannot, without more, be a basis for asserting the action was retaliatory.
- Mr Maksymiuk submits that he has complained about Mr Savage’s breaches of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). There is no evidence that Mr Savage issued the notice because of that complaint.
- Mr Maksymiuk also makes scurrilous submissions that Mr Savage took retaliatory action because of some personal interaction between the two. Like complaints of discrimination, s 291 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) is not directed to allegations of that nature. Mr Savage takes exception to the allegations. I do not need to consider them further.
- Finally, Mr Maksymiuk submits the learned Magistrate erred in finding that Mr Savage had authority to issue the notice. The learned Magistrate considered this point by reference to an affidavit from Mr Savage. He accepted that Mr Savage did have authority to issue the notice. Mr Maksymiuk has not provided any detail about why that finding is incorrect.
- Mr Maksymiuk has had the benefit of living in Il Centro far longer than he was entitled. On 1 April 2014, he received a letter from Cairns Community Legal Centre Inc., stating:
As we have previously advised you, a Notice to leave without grounds, giving you two months notice, will be a valid notice and you will have to move.
It would have been best to have used the time since this matter first arose to make your own arrangements in your own time. Having a firm deadline imposed by a valid Notice may result in avoidable stress and having to make quick decisions in limited opportunities.
- It is a pity that Mr Maksymiuk did not heed his lawyer’s advice. He has used every opportunity to delay a decision which is now inevitable.
- There is no reasonably arguable case that the learned Magistrate was in error. There is no reasonable prospect of substantive relief on appeal. Leave to appeal should be refused.
 QCAT Act s 142(3)(a)(i).
 Transcript pages 1-3 to 1-6.
 Transcript 6 August 2014 pages 1-9 to 1-11.
 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
 Chambers v Jobling (1986) 7 NSWLR 1 at 10.
 Transcript 6 August 2014 page 1-13, lines 18 – 34.
 Bamfield v Zanfan Pty Ltd t/a Main Street Realty Caloundra  QCATA 1 at , .
 Transcript 11 August 2104 at page 1-6, lines 3 – 9.
 Transcript 11 August 2014, page 1-40 line 41 to page 1-41 line 10.
- Published Case Name:
Maksymiuk v Savage
- Shortened Case Name:
Maksymiuk v Savage
 QCATA 5
A/Deputy President Stilgoe OAM
15 Jan 2015
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QCATA 5||15 Jan 2015||Application for leave to appeal dismissed: Acting Deputy President Stilgoe.|
|Primary Judgment|| QCATA 38||19 Mar 2015||Savage 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|| QCATA 86||12 Jun 2015||Maksymiuk's application for an injunction refused: Justice Thomas, President.|
|Primary Judgment|| QCATA 90||18 Jun 2015||Maksymiuk's application for an adjournment of proceedings dismissed: Judge Horneman-Wren SC, Acting President.|
|Primary Judgment|| QCATA 188||01 Sep 2015||Maksymiuk's applications for various miscellaneous orders refused: Justice D Thomas, President.|
|Primary Judgment|| QCATA 81||11 Apr 2016||Maksymiuk's application for an Injunction dismissed. Further directions made: Justice D Thomas, President.|
|Primary Judgment|| QCATA 184||02 Dec 2016||Appeal 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||QCAT (No citation)||11 Aug 2014||Application seeking to challenge a notice to leave under the Residential Tenancies and Rooming Accommodation Act 2008. Application dismissed. Notice valid: Magistrate Comans.|
|Primary Judgment||QCAT (No citation)||14 Oct 2014||Savage filed an application for termination for failure to leave. Application dismissed: Magistrate Pinder.|
|Notice of Appeal Filed||File Number: 2431/15||24 Feb 2015||APL367/14|
|Appeal Determined (QCA)|| QCA 177||25 Sep 2015||Application for leave to appeal  QCATA 5 refused. Applicant ordered to pay the respondent’s costs of the application to be assessed: McMurdo P, North J, Henry J.|