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Greening v The Waraich Group Pty Ltd QCATA 126
Greening & Brown v The Waraich Group Pty Ltd  QCATA 126
The Waraich Group Pty Ltd
On the papers
A/Senior Member Gordon
31 August 2016
The application for leave to appeal or appeal is struck out as misconceived and lacking in substance.
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where application to strike out – whether application for leave to appeal or appeal misconceived and lacking in substance
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47
Edenborough v Mt Isa Properties & Auctioneers  QCATA 231
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
- This is an appeal (and an application for leave to appeal) brought by Marion Greening and Graeme Brown (‘the tenants’) who seek to overturn a decision made on 8 April 2016 by the Adjudicator that their tenancy should be terminated and a warrant for possession be issued.
- The Respondents to the appeal, the Waraich Group Pty Ltd (although not expressed in this form) effectively now apply to the Tribunal for the appeal to be struck out on the grounds that the appeal has no merit.
- There are five grounds of appeal given by the tenants. The only ground of appeal which could have any chance of success is that the Adjudicator had given leave to them to present their evidence but ‘this was not honoured by the adjudicator on 8th April. This seems to contradict procedural fairness’.
- As can be seen from the submissions received by the Tribunal from both sides in the strike out application and from the original file in this matter, the tenants were given a valid Form 12 (notice to leave) with an expiry date of 8 February 2016. This coincided with the last date of their fixed term residential tenancy.
- Despite the Form 12 and the ending of their tenancy, the tenants did not give vacant possession. Waraich Group therefore applied to the Tribunal for an order terminating the tenancy and a warrant for possession.
- This application first came up for hearing on 26 February 2016 and the tenants indicated that they wished to argue that the giving of the Form 12 was retaliatory. This is a ground for setting aside a Form 12 available by s 292 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘Residential Tenancies Act’). The application was adjourned, with directions for written argument and evidence from both sides to be given.
- At the final hearing however, the question whether the Form 12 was retaliatory and ought therefore to be set aside was not determined. The reason was that an application to set aside a Form 12 on these grounds must be made within four weeks after the notice is given. This is by s 292(3) of the Residential Tenancies Act.
- Hence it may have appeared to the tenants that having been permitted to make submissions on the retaliatory issue, ultimately at the hearing their submissions were not considered.
- Whilst this is unfortunate, the four week time limit in s 292(3) is mandatory. The subsection says that an application ‘must be made within 4 weeks after the notice was given’. The use of the word ‘must’ means that the Tribunal is unable to enlarge the time for such applications to be made. There is good reason for the legislature to impose a strict time limit for such applications, to provide certainty as to the effect of such notices.
- The learned Adjudicator who heard this matter had no choice but to decline to determine the retaliation issue. It follows also that she had no choice but to make the order that she did to terminate the tenancy and issue the warrant for possession.
- The remaining grounds given for seeking leave to appeal do not disclose any matter which can be considered on appeal. They all relate to matters which happened after the hearing on 8 April 2016.
- The appeal and the application for leave to appeal should be struck out as being misconceived and lacking in substance.
- Published Case Name:
Marion Greening and Graeme Brown v The Waraich Group Pty Ltd
- Shortened Case Name:
Greening v The Waraich Group Pty Ltd
 QCATA 126
A/Senior Member Gordon
31 Aug 2016