Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment
  • Appeal Determined (QCA)

Savage Resorts Pty Ltd v Maksymiuk[2016] QCATA 184

Savage Resorts Pty Ltd v Maksymiuk[2016] QCATA 184

CITATION:

Savage Resorts Pty Ltd v Maksymiuk [2016] QCATA 184

PARTIES:

Savage Resorts Pty Ltd

(Applicant)

v

Richard Maksymiuk

(Respondent)

APPLICATION NUMBER:

APL498-14

MATTER TYPE:

Appeals

HEARING DATE:

19 July 2016

HEARD AT:

Brisbane

DECISION OF:

Justice DG Thomas, President

DELIVERED ON:

2 December 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal is granted.
  2. Appeal is allowed and the matter is remitted back to be reheard by the Tribunal with additional evidence including the evidence which was before Magistrate Comans.

CATCHWORDS:

APPEAL AND NEW TRIAL – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – GENERALLY – where the applicant seeks leave to appeal the decision of a Magistrate – where the Magistrate found the applicant was not an authorised “agent” to bring proceedings on behalf of the owner under the Property Agents and Motor Dealers Act 2009 (Qld) after he issued a notice to leave to the respondents – where leave to appeal is necessary – where the applicant says the Magistrate erred in law in deciding he was not authorised – where the applicant says he was not afforded natural justice as he misunderstood what the Magistrate had asked and failed to produce the correct document – whether leave to appeal should be allowed

Property Agents and Motor Dealers Act 2009 (Qld) ss 35, 114, 111, 115A(2)(b)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 29, 137, 142(3)(a)(i), 146(c)

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 24, 25, 206, 291, 326, sch 2

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Helen Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158

Pickering v McArthur [2005] QCA 294

Maksymiuk v Savage [2015] QCA 177

APPEARANCES and REPRESENTATION:

APPLICANT:

Mr Savage appearing on behalf of himself

RESPONDENT:

Mr Maksymiuk appearing on behalf of himself

REASONS FOR DECISION

  1. [1]
    Savage Resorts Pty Ltd (“Savage Resorts”) appeals a decision of Magistrate Pinder in these proceedings.
  2. [2]
    The grounds of appeal are said to be as follows:
    1. Leave to appeal on a question of fact and/or question of fact and law;
    2. That the learned Member erred as a matter of law that the applicant was not authorised to bring these proceedings against the respondent; and
    3. That the applicant was denied procedural fairness in so far as he misunderstood what was asked of him by the Tribunal member and failed to produce the following relevant documents:
      1. The deed of assignment of caretaking and management agreement dated 29 June 2011; and
      2. The deed of assignment (license agreement) dated 1 July 2014.

The Hearing before Magistrate Pinder

  1. [3]
    The hearing took place before Magistrate Pinder on 14 October 2014 having been adjourned from 13 October 2014.
  2. [4]
    Mr Maksymiuk raised issues relating to the authorisation of Savage Resorts as agent for the owner and Savage Resorts sought the opportunity to place evidence before the Tribunal of that authorisation.[1]
  3. [5]
    At the hearing on 13 October 2014, Magistrate Pinder concluded:

“In the circumstances, having regard to the sorry history of the application apparently for determination, in my view, having heard from the applicant at – from the respondent at some length, it is not appropraite to dismiss the application now but to afford the applicant the opportunity of placing additional material before the Tribunal before the application is finally determined. The application is adjourned to 9am tomorrow 14 October 2014.”[2]

  1. [6]
    At the hearing on 14 October 2014, the question of whether Savage Resorts was authorised agent was raised on a number of occasions by Magistrate Pinder.
  2. [7]
    Savage Resorts produced two documents. Savage Resorts was given leave to read and file those documents.[3] Magistrate Pinder indicated in his view, that the documents were not relevant to the question of authority to act.
  3. [8]
    Believing that the documents were not adequate, Magistrate Pinder sought evidence of Savage Resort’s authority.
  4. [9]
    Mr Savage, appearing in the matter, indicated that there were no other documents than those he had read and filed.[4]
  5. [10]
    The learned Magistrate stated, “you say it’s on behalf of the owner. There’s an obligation on you to confirm that you, in fact, are the authorised agent of the owners.”[5]
  6. [11]
    Magistrate Pinder referred to the relevant provisions dealing with assignments of appointments (section 115A of the Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMD Act’).[6]
  7. [12]
    Magistrate Pinder emphasized, “it needs to be assigned, sir, in accordance, it appears, with the statutory provisions… it needs to be assigned, sir. Have you anything else you wish to place before me at all sir, this morning in relation to the proceedings?”[7]
  8. [13]
    Mr Savage responded in the negative.
  9. [14]
    Magistrate Pinder said, “Sir, I’m going to find that you’re not an authorised agent as required under the provisions of the legislation and it being the case that you’re not an authorised agent, you can’t be the applicant in relation to the proceedings, it being the case that you weren’t and can’t prove that you were an authorised agent at the time of the notice – giving the notice to leave without grounds”.[8]

Submissions

  1. [15]
    Savage Resorts has filed two outlines of submissions in similar terms. Savage resorts has also filed an affidavit of Warren George Savage sworn on 22 December 2014, which attaches additional information in the form of a PAMD form 20a dated 23 March 2008, as well as a deed of assignment of caretaking and management agreement dated 29 June 2011. This evidence was not before the learned Magistrate at the time of the hearing.
  2. [16]
    Mr Maksymiuk filed submissions on 29 June 2016.

Nature of the Appeal

  1. [17]
    This is an appeal from the decision of the Tribunal (constituted by the learned Magistrate) in its minor civil disputes jurisdiction. On that basis, leave to appeal is necessary.[9]
  2. [18]
    Leave to appeal will usually be granted when there is a reasonable argument that the decision (under appeal) is attended by error and the appeal is necessary to correct a substantial injustice to the applicant, which is caused by the error.[10]

New evidence

  1. [19]
    Savage Resorts seeks to rely upon evidence, which was not before the learned Magistrate.
  2. [20]
    The Appeal Tribunal has a discretion in relation to accepting “additional evidence”.
  3. [21]
    In exercising the discretion as to additional evidence the following is relevant:
    1. The Tribunal is entitled to take into account that there has been a hearing on the merits where Savage Resorts should have presented all evidence on which it intended to rely.[11] In this case, this is particularly so when, at the hearing, the learned Magistrate identified the evidence which was thought to be necessary and allowed an adjournment to enable Savage Resorts to put the evidence before the Tribunal, and was told at the adjourned hearing that no further evidence was available.
    2. The test contained in the definition “reopening ground” in section 137 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) can be a useful guide but the reopening ground tests cannot fetter the discretion of the Appeal Tribunal by rigid application of the test (which expressly applies to proceedings at first instances and not to appeals).[12]
    3. The relevant test is whether a party suffers substantial injustice because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.
    4. Similarly, the principles outlined in Clarke v Japan Machines (Australia) Pty Ltd[13] can be a useful guide. Matters which may be relevant include:
    1. Could the party have obtained the evidence with reasonable diligence for use at the hearing;
    2. If allowed, would the evidence probably have an important impact on the result of the case; and
    3. Is the evidence credible.[14]
    1. The weight given to those factors depends on the circumstances.[15]
    2. The Appeal Tribunal may have regard to the fact that there is public benefit in finality of proceedings. The Tribunal should be very cautious in its approach to acceptance of further evidence, especially where that evidence was available at the hearing below. Of relevance is the requirement, in section 4 of the QCAT Act, to ensure that proceedings are conducted in an informal way that minimises the costs and “is as quick as is consistent with achieving justice”.
  4. [22]
    As has been observed previously by the Appeal Tribunal, an application for leave to appeal is not, and cannot be, an attempt to sure up the deficiencies of a party’s case at the hearing below.
  5. [23]
    Whilst Mr Maksymiuk suggested he would challenge the authenticity of the evidence, the Appeal Tribunal believes the evidence is credible and if allowed, would likely be relevant.
  6. [24]
    As to the additional evidence, Savage Resorts submits, when referring to the additional evidence “this evidence was in existence at the time of the hearing but I had not presented it to the Tribunal”.[16]
  7. [25]
    Mr Savage advanced no reasonable argument for failing to provide the evidence at the hearing below. This matter will be further considered when discussing the appeal ground by Savage Resorts, which relates to the denial of procedural fairness.
  8. [26]
    Particularly in the circumstances of this case, these factors surrounding the availability of the evidence at the time of the hearing, and the failure to provide that evidence, outweigh the other factors.
  9. [27]
    The Appeal Tribunal has taken account of the fact that the issues and the nature of the additional evidence were identified by Magistrate Pinder at the first hearing, and that the matter was adjourned to enable Savage Resorts to produce the necessary evidence. Even after further clarification by the learned Magistrate at the adjourned hearing, Savage Resorts did not produce the additional evidence at the hearing and to the contrary indicated that no further evidence was available. In exercising the discretion allowed, the Appeal Tribunal rules that fresh evidence will not be allowed and that the application for leave to appeal will proceed on the basis of the evidence which was before the learned Magistrate.

The arguments

  1. [28]
    The application asserts that the learned Magistrate erred as a matter of law when he concluded that the applicant was not authorised to bring the proceedings against the respondent.
  2. [29]
    In the view of Magistrate Pinder, this question turned upon whether the applicant was appropriately appointed as agent for the purpose of the PAMD Act.
  3. [30]
    The learned Magistrate said:

“In those circumstances, the applicant, on the face of it, isn’t an appropriately appointed agent for the purpose of the Property Agents and Motor Dealers Act, is not an agent for the purpose of the definition contained in schedule 2 of the Residential Tenancies and Rooming Accommodation Act, and was not authorised to issue the notice to leave without grounds on 10 June 2014, isn’t authorised to bring the proceedings seeking the relief that’s now before me. In all the circumstances, the application is dismissed.”[17]

  1. [31]
    At the hearing, Savage Resorts advanced an argument that had not previously been raised, namely that the two documents which were provided by Savage Resorts were sufficient to establish that Savage Resorts was an appropriately appointed agent for the purpose of the PAMD Act.
  2. [32]
    The two documents, which were provided, were a licence under the PAMD Act for Savage Resorts as well as a document headed “Appointment of Agent Letting and Property Management in favour of Il Centro Apartment Pty Ltd as agent”.
  3. [33]
    The concern expressed by the learned Magistrate was that the appointment was not in favour of the applicant, Savage Resorts, but in fact in favour of an entity not related to Savage Resorts, namely, Il Centro Apartment Pty Ltd.
  4. [34]
    The submission made by Mr Savage at the hearing was that, as a matter of industry practice, and he said supported by relevant regulations, a residential letting agent licence cannot be issued unless the licensee was the appointed agent.[18]
  5. [35]
    Mr Savage made reference to the fact that the appointment was noted to be not a “single appointment” but a “continuing appointment” which he submitted meant that the appointment would continue in favour of Savage Resorts.
  6. [36]
    He submitted that, from an industry perspective, the two documents were adequate proof that Savage Resorts was the authorised agent and he had expected that the learned Magistrate would understand fully the industry perspective. Of course, the legislative requirements govern the position, not industry perspective.
  7. [37]
    Mr Savage did not have any legislation with him at the appeal hearing. He was unable to draw attention to any relevant legislation or regulation, which supports his argument.
  8. [38]
    The submissions by Savage Resorts as to this issue are without merit.
  9. [39]
    Section 35 of the PAMD Act deals with “Resident Letting Agents Licence”. Section 35(1) sets out criteria, which must be fulfilled by an individual in obtaining a licence. None of those criteria include the existence of the appointment document.
  10. [40]
    At the Appeal Tribunal hearing, before the hearing was concluded, Mr Savage appeared to contradict his earlier submissions regarding the fact that the two documents which were provided were sufficient to establish that Savage Resorts was an appropriately appointed agent for the purposes of the PAMD Act.
  11. [41]
    Mr Savage told the Appeal Tribunal, “look an owner doesn’t have to appoint me at all. Sorry. The owner of a lot doesn’t have to appoint the resident manager at all. They may appoint what we call – what is known as an outside agent. I compete in the market place with – even though I have to reside on the – on the property…”[19]
  12. [42]
    Later, in response to a question, “so you could be in a building where … you could be a resident letting agent with only one client in the building?” Mr Savage answered “correct, or none hypothetically”.[20]
  13. [43]
    It would necessarily follow from what Mr Savage said that the existence of a licence is not indicative of the existence of a relevant appointment for a particular unit, even based on an “industry perspective”.
  14. [44]
    The significance of the appointment document is that a residential letting agent must not act as a residential letting agent for a person unless the client first appoints the letting agent in writing under section 114 PAMD Act.
  15. [45]
    To do otherwise would be a breach of the legislation.
  16. [46]
    Nothing in section 114 PAMD Act supports the submission made by Mr Savage as to the effect of the words “continuing appointment”. The use of those words is relevant to arrangements between the entity appointed by the appointment and the client.
  17. [47]
    The question of assignment for the purposes of the PAMD Act is dealt with in section 115A PAMD Act. Where the form of appointment contains the right to assign section 115A PAMD Act is to the effect that the assignment must be made in accordance with the terms of the appointment.[21]
  18. [48]
    No evidence was provided at the hearing in relation to assignment.
  19. [49]
    In the Appeal Tribunal, Mr Savage submitted:[22]

“There was compelling evidence before the Tribunal, particularly in APL367-14 as documented in the Court of Appeal decision about the issue that was determined. Accordingly, despite my failure to provide the relevant documentation to Magistrate Pinder, it is my submission that there was other evidence in existence as well as evidence previously accepted by the Tribunal to satisfy the Tribunal that… I was a duly appointed agent for the purposes of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).”

  1. [50]
    From the transcripts provided to the Appeal Tribunal, Mr Savage did not refer to this evidence in the proceedings before Magistrate Pinder and so it appears that the same evidence was not before Magistrate Pinder.

Denial of procedural fairness

  1. [51]
    Savage Resorts asserts that the fact Mr Savage misunderstood what was required of him, and failed to produce the necessary evidence, meant that Savage Resorts was denied procedural fairness. Savage Resorts seeks to identify failures of Mr Savage as constituting a denial of procedural fairness by the learned Magistrate.
  2. [52]
    The circumstances were:
  1. The matter was initially heard before Magistrate Pinder on 13 October 2014.
  2. A question about authorisation was raised by Mr Maksymiuk. The lack of appropriate evidence was identified by the learned Magistrate when Mr Maksymiuk applied for an order that the application by Savage Resorts be dismissed. Rather than dismissing the application, the learned Magistrate identified the issue and noted that Savage Resorts had said it held the relevant authorisation as agent and had sought the opportunity to place the information before the Tribunal. The learned Magistrate adjourned the matter “to afford the applicant the opportunity of placing additional material before the Tribunal before the application is finally determined”.[23]
  3. On the adjourned date, Savage Resorts produced its licence and the Appointment of Agent Letting and Management Agreement in favour of Il Centro Apartments Pty Ltd.
  4. The learned Magistrate made the following observations:

“There’s an obligation on you to confirm that you, in fact, are the authorised agent of the owners.”[24]

“Now sir what you’ve handed to me is an appointment of Il Centro Apartments Pty Ltd as an agent under the provisions of the Property Agents and Motor Dealers Act 2000 which you say is the appointment to act. Is that correct?”[25]

  1. Mr Savage confirmed that this was correct.
  2. The learned Magistrate then referred to Mr Savage submitting how things were done in the industry. Mr Savage said, “the only instrument under which I am able to act is that authority. I’m not aware of any other authority…”[26]
  3. The learned Magistrate then drew the attention of Mr Savage to the requirements of section 115A of the PAMD Act.[27]
  4. Mr Savage responded referring the fact that the authority was a “continuing authority”.[28]
  5. Magistrate Pinder referred again to the question of assignment of the authority saying:

“It needs to be assigned, sir, in accordance, it appears, with the statutory provisions…

It needs to be assigned, sir. Have you anything else that you wish to place before me at all, sir, this morning in relation to the proceedings?”[29]

  1. Mr Savage responded “no”.[30]
  2. Magistrate Pinder then responded “ok, nothing else sir?”[31]
  3. Mr Savage said, “I’m not sure what I could…”. The learned Magistrate responded “well I don’t give you advice, sir. …specifically, I don’t give you advice because I am here to adjudicate a dispute as between you and the respondent”.[32]
  4. The learned Magistrate continued “Sir, I’m going to find that you’re not an authorised agent as required under the provisions of the legislation, and it being the case that you’re not an authorised agent, you can’t be the applicant in relation to the proceedings, it being the case that you weren’t and can’t prove that you were an authorised agent at the time of the notice – given the notice to leave without grounds.”[33]
  1. [53]
    The submissions by Savage Resorts are without merit.
  2. [54]
    The learned Magistrate was asked to dismiss the application when the matter was heard on 13 October 2014. The clear basis for the application for dismissal related to the question of Savage Resorts being authorised as the agent. The learned Magistrate adjourned the matter to allow Mr Savage to produce further information. During the hearing on 14 October 2014 there was discussion when the learned Magistrate made his requirements clear to Mr Savage, after which Mr Savage stated that he had nothing further to provide to the Tribunal and indeed that the papers which he had provided were the relevant authority and that he was not aware of any other authority.[34]
  3. [55]
    Mr Savage has referred a number of times in submissions to the obligations of the Tribunal under section 29 of the QCAT Act.
  4. [56]
    The obligations under section 29 of the QCAT Act require the Tribunal to take all reasonable steps to ensure that each party to the proceedings understands:
    1. the practices and procedures of the Tribunal;
    2. the nature of the assertions made in the proceedings and the legal implications of the assertions; and
    3. any decision of the Tribunal relating to the proceedings.[35]
  5. [57]
    The obligation to take reasonable steps do not require the Tribunal to provide legal advice to the parties[36] – indeed such action would be inappropriate and improper.
  6. [58]
    As the learned Magistrate said, the role of the Tribunal member is to adjudicate the dispute between the parties.
  7. [59]
    In this case, a real estate professional, Mr Savage, was assisting the Applicant. It would be expected that a person such as Mr Savage would be conversant with the provisions of relevant legislation and would be well prepared for the proceedings. In the circumstances, the learned Magistrate clearly took adequate steps to ensure that Mr Savage was aware of the practices and procedures of the Tribunal, the nature of the assertions made and the legal implications, and of the decision which he intended to make.
  8. [60]
    The ground of appeal relied upon by Savage Resorts relating to denial of procedural fairness is without merit.

Agent for the lessor

  1. [61]
    The basis upon which Savage Resorts was unsuccessful before Magistrate Pinder was that Magistrate Pinder determined “in those circumstances, the applicant, on the face of it, isn’t an appropriately appointed agent for the purpose of the Property Agents and Motor Dealers Act, is not an agent for the purpose of the definition contained in s 2 of the Residential Tenancies and Rooming Accommodation Act, was not authorised to issue the notice to leave without grounds on 10 June 2014, isn’t authorised to bring the proceedings seeking the further relief that’s now before me.”[37]
  2. [62]
    The learned Magistrate had questioned Mr Savage about the “appointment to act” of Savage Resorts and referred specifically to the provisions of the PAMD Act including section 115A which dealt with the assignments of the appointment.[38] Magistrate Pinder decided that in order to be the lessor’s agent for the purpose of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’) it was necessary that the person be appointed pursuant to the requirements contained in the PAMD Act.[39]
  3. [63]
    The question arises whether there was an error of law in reaching that conclusion.
  4. [64]
    Section 291 RTRAA provides that a lessor may give a notice to leave premises to a tenant without stating a ground for notice.[40] Under section 236(1)(b) RTRAA, a notice to leave must “be signed by or for the lessor”.[41]
  5. [65]
    Section 24 RTRAA provides that things which might be done under the RTRAA may be done by the lessor or the lessors agent.[42]
  6. [66]
    Section 25 RTRAA provides that a reference in a provision in the RTRAA to something being done by a lessor, without mentioning an agent of the lessor, does not, by implication, limit the extent to which the thing may be done by an agent of the lessor.
  7. [67]
    Section 206 RTRAA deals with the lessor’s agent standing in the lessor’s place in proceedings proscribed under a regulation.[43] A proscribed proceedings includes any proceedings which a lessor or tenant may bring in a Tribunal, and would include the proceedings before Magistrate Pinder.
  8. [68]
    Schedule 2 RTRAA provides that an “agent” of a lessor means a person employed, or otherwise authorised, by the lessor to act as the lessor’s agent.[44] There is no requirement contained in the RTRAA to the effect that a person who is an “agent” of a lessor must be licenced pursuant to the requirements contained in the PAMD Act.
  9. [69]
    Section 111 PAMD Act sets out “what a resident letting agents licence authorises”. A resident letting agent licence authorises the holder of the licence to perform the following activities as agent for others for reward:
    1. Leasing lots in a building complex.
    2. Collecting rents for lots in a building complex.[45]
  10. [70]
    The RTRAA does not refer to the requirements contained in the PAMD Act. There is no basis to imply a requirement that an agent for a purpose of the RTRAA must hold a residential leasing agents licence under the PAMD Act.
  11. [71]
    For the purpose of the requirements of the RTRAA, the person simply needs to be authorised by the lessor to act as the lessors agent. Magistrate Pinder was in error when he concluded that in order to be the lessors agent for the purpose of the RTRAA it was necessary that the person be appointed pursuant to the requirements contained in the PAMD Act. This was an error of law.
  12. [72]
    The very same argument was raised by Mr Maksymiuk before Magistrate Comans.
  13. [73]
    The sequence of proceedings between the parties was that:
    1. Savage Resorts served a notice to leave without grounds upon Mr Maksymiuk. Mr Maksymiuk filed proceedings seeking orders that the notice to leave be set aside.
    2. The matter was determined before Magistrate Comans who found in favour of Savage Resorts and held that the notice to leave was valid. The question of whether Savage Resorts was the agent for the lessor was raised by Mr Maksymiuk in those proceedings and Magistrate Comans found in favour of Savage Resorts.
    3. The proceedings before Magistrate Pinder sought an order for termination following non-compliance with the notice to leave which was the subject of the proceedings before Magistrate Comans.
    4. The decision of Magistrate Comans was appealed by Mr Maksymiuk to the Queensland Civil and Administrative Tribunal Appeals Tribunal, which dismissed the appeal.
    5. The decision of the Appeals Tribunal was appealed by Mr Maksymiuk to the Supreme Court of Queensland Court of Appeal, which on 25 September 2015, again dismissed the appeal.[46]
  14. [74]
    Grounds 7 and 8 in the Court of Appeal proceedings raised the question of whether Savage Resorts was agent for the lessor. North J, with whom McMurdo P and Henry J agreed, referred to the definition of agent of a lessor: “a person employed, or otherwise authorised, by the lessor to act as the lessor’s agent” and noted that s 326(1)(b) RTRAA permits a notice to leave “to be signed by or behalf of the lessor”, and concluded that when those provisions are read with s 25 RTRAA” it is clear that RTRAA permits a person, as agent, to sign and give a notice to leave on behalf “the lessor or agent”. North J notes that this conclusion is reflected in approved form 12.[47]
  15. [75]
    North J refers to evidence before Magistrate Comans which included an affidavit by Mr Savage, North J sets out the terms of that affidavit as:

I, Warren George Savage of 26-30 Sheridan Street, Cairns in the State of Queensland, Resident Manager solemnly and sincerely affirm and declare:

  1. I am the licensed Resident Letting Agent of Il Centro Apartments (“Il Centro”) located at 26-30 Sheridan Street, Cairns.
  2. Savage Resorts Pty Ltd trading as Il Centro Apartment Hotel operates a letting agency from within the property.

  1. On or about 10 June 2014 I served the Applicant with a Notice to Leave stating that the Applicant must vacate the property by 14 August 2014. …[48]
  1. [76]
    North J concluded that Magistrate Comans committed no error when he concluded:

“Savage Resorts is named as issuing the notice to leave. Mr Savage has signed that. I have no doubt that Mr Savage is who he says he is in his affidavit and what Savage Resorts does. It’s also clear that Mr Maksymiuk is under no misapprehension of who or what they are and who they represent. That’s clear from the emails that have been cited and the letters from Mr Maksymiuk’s legal advisor. For example, there’s a letter dated the 17th of April 2014 from the Cairns Community Legal Service where there was negotiations with Mr Savage on Mr Maksymiuk’s behalf to be assigned another unit.

Accordingly, I am satisfied, on the balance of probabilities, that Mr Savage, in his position as manager of the – Savage Resorts, trading as Il Centro Apartments, is the agent of the unit owner, the lessor, and that Mr Maksymiuk has acknowledged that. There has been no disclosure of agency under the Act, but I don’t believe that to be a bar to Mr Savage as manager of Savage Resorts Proprietary Limited being regarded as the agents for the purpose of the Act.”[49]

  1. [77]
    North J again referred with approval to the findings of acting Deputy President Stilgoe which were as follows:

“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.”[50]

  1. [78]
    North J also referred to the proceedings before Magistrate Pinder, the decision which is the subject of the current appeal. Those proceedings had been brought to the attention of the Court of Appeal by Mr Maksymiuk.
  2. [79]
    North J notes:

“while it is curious that inconsistent findings may have been made by different magistrates the explanation appears that at different hearings in separate proceedings the evidence before their Honours, which was accepted by them, differed.”[51]

  1. [80]
    North J concluded that no error on the part of Acting Deputy President Stilgoe or Magistrate Comans had been demonstrated.[52]
  2. [81]
    It is clear from the reasons of North J that no evidence was led as to whether Savage Resorts held the licence under the PAMD Act, the evidence having been as extracted from the affidavit of Warren George Savage. Based upon this evidence, Magistrate Comans and Acting Deputy President Stilgoe concluded that Savage Resorts did have authority to issue the notice. The Court of Appeal concluded that there was no error on the part of either Acting Deputy President Stilgoe or Magistrate Comans.

Disposition of the matter

  1. [82]
    I conclude that the decision of Magistrate Pinder was based upon an error of law as to the requirements of the RTRAA. Leave to appeal is granted and the appeal allowed.
  2. [83]
    In the case of an appeal on a question of law, the Appeal Tribunal may set the decision aside and return the matter to the Tribunal, which made the decision.[53] The hearing can be returned to the Tribunal with or without the hearing of additional evidence as directed by the Appeal Tribunal. In view of the fundamental nature of the error of law, and the fact that the issue has been subsequently considered by the Court of Appeal, the Appeal Tribunal directs that the matter be reheard with additional evidence including the evidence which was before Magistrate Comans.

Footnotes

[1] Transcript of hearing 13 October 2014 before Magistrate Pinder, page 1-12, lines 5-7 attached to the respondent’s submissions filed 29 June 2016.

[2] Ibid, page 1-12, lines 16-21.

[3] Transcript of hearing 14 October 2014, page 1-2, lines 13-15.

[4] Ibid, page 1-7, lines 9-11.

[5] Ibid, page 1-6, lines 5 & 6.

[6] Ibid, page 1-6, lines 40 & 41.

[7] Ibid, page 1-7, lines 4 to 11.

[8] Transcript of hearing 14 October 2014, page 1-7, lines 23 to 28.

[9] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i).

[10] Pickering v McArthur [2005] QCA 294 at [3].

[11] Helen Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158; Muir J at [43].

[12] Helen Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158; Muir J at [39].

[13] [1984] 1 Qd R 404 at 408.

[14] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

[15] Ibid at 419.

[16] Applicant’s Outline of Submissions filed 9 May 2016, paragraph 15.

[17] Transcript of hearing 14 October 2014, page 1-11, line 12.

[18] For example, see Transcript of hearing 19 July 2016 page 1-67, lines 5-14.

[19] Transcript of the Appeal Tribunal hearing 19 July 216, page 1-70, lines 16-19.

[20] Ibid, page 1-70, lines 30-34.

[21] Property Agents and Motor Dealers Act 2000 (Qld) s 115A(2)(b).

[22] Submissions on behalf of the application filed 9 May 2016, paragraph 16.

[23] Transcript of hearing 13 October 2014, page 1-12.

[24] Ibid, page 1-6, lines 5, 6.

[25] Ibid, page 1-6, lines 16 -18.

[26] Ibid, page 1-6, lines 16 -18.

[27] Ibid, page 1-6, lines 40-41.

[28] Ibid, page 1-7, lines 1-2.

[29] Ibid, page 1-7, lines 4-10.

[30] Ibid, page 1-7, line 13.

[31] Transcript of hearing 13 October 2014, page 1-7, line 14.

[32] Ibid, page 1-7, lines 17-24.

[33] Ibid, page 1-7, lines 23-28

[34] Ibid, page 1-7, lines 26-28.

[35] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 29(1).

[36] Helen Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158.

[37] Transcript of hearing 14 October 2014, page 1-10, 1-11 lines 44-47 & 1-3.

[38] Ibid, 1-10, lines 26-35.

[39] Property Agents and Motor Dealers Act 2000 (Qld) s 114.

[40] Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 291(1).

[41] Ibid, s 326(1)(b).

[42] Ibid, s 24.

[43] Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 206(1)(b).

[44] Ibid, sch 2 Dictionary.

[45] Property Agents and Motor Dealers Act 2000 (Qld) s 111(1).

[46] Maksymiuk v Savage [2015] QCA 177.

[47] Maksymiuk v Savage [2015] QCA 177 at [15].

[48] Maksymiuk v Savage [2015] QCA 177 at [15].

[49] Maksymiuk v Savage [2015] QCA 177 at [16].

[50] Maksymiuk v Savage [2015] QCA 177 at [17].

[51] Maksymiuk v Savage [2015] QCA 177 at [19].

[52] Maksymiuk v Savage [2015] QCA 177.

[53] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146(c).

Close

Editorial Notes

  • Published Case Name:

    Savage Resorts Pty Ltd v Maksymiuk

  • Shortened Case Name:

    Savage Resorts Pty Ltd v Maksymiuk

  • MNC:

    [2016] QCATA 184

  • Court:

    QCATA

  • Judge(s):

    Thomas P

  • Date:

    02 Dec 2016

Litigation History

EventCitation or FileDateNotes
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 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 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)

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.