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Savage Resorts Pty Ltd v Maksymiuk[2016] QCATA 81

Savage Resorts Pty Ltd v Maksymiuk[2016] QCATA 81

CITATION:

Savage Resorts Pty Ltd v Maksymiuk [2016] QCATA 81

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:

11 April 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application for an Injunction is dismissed.
  1. Savage Resorts Pty Ltd file any submissions upon which it intends to rely, by:

4:00pm on 9 May 2016.

  1. Mr Maksymiuk file any submissions upon which he intends to rely, by:

4:00pm on 6 June 2016.

  1. The hearing of this matter take place on a date to be specified after 6 June 2016.
  2. Each party be given leave to attend the hearing by telephone.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where matter stayed pending outcome of Court of Appeal decision – where Court of Appeal determined matter in favour of Applicant – where respondent applied for injunction pending Queensland Planning & Environment Court matter – where respondent seeks documents from the QCAT registry and transcript of earlier matter – whether injunction should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 229, 229(3)

Maksymiuk v Savage [2015] QCA 177Savage & Savage Resorts Pty Ltd as trustee v    Cairns Regional Council [2015] QPEC 037

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

  1. [1]
    In February 2015, I stayed the hearing of this appeal because a related matter was before the Court of Appeal. The Court of Appeal has now determined that appeal[1] in favour of Savage Pty Ltd, the applicant in this matter (‘Savage’). There is now no reason why this appeal cannot proceed.
  2. [2]
    However, Mr Maksymiuk has applied for an injunction because of a decision of the Queensland Planning & Environment Court which, he says, affects the Appeal Tribunal’s deliberations.
  3. [3]
    Mr Maksymiuk also wants the tribunal to provide a list of all documents that:
    1. He has filed in the Tribunal;
    2. That the Tribunal sent to him; and
    3. That the Tribunal received from the Cairns registry, which were filed by Mr Maksymiuk.
  4. [4]
    Mr Maksymiuk again agitates for a full copy of the transcript for MCDT391/14.

The application for injunction

  1. [5]
    Mr Maksymiuk applies for an injunction because he did not know, until a  Planning & Environment Court decision published on 6 August 2015[2] that:
    1. The Cairns Regional Council changed the development approval for Il Centro on 13 August 2014; and
    2. Savage lodged an application for leave to appeal that decision on 2 April 2015.
  2. [6]
    Mr Maksymiuk submits that Savage refused to disclose these facts to him, they are material facts, and that this is the basis of an application for leave to appeal the Court of Appeal’s decision to the High Court.
  3. [7]
    The original approval for Il Centro was “accommodation units”. The approval was based on a submission that the likely market, and therefore the car parking demand, was “holiday accommodation”. Because doubt later arose over the permitted use for Il Centro, some owners applied for a material change of use from “accommodation units” to “Multiple Dwellings & Holiday Accommodation”. The Council granted the application. Savage appealed that decision. It was unsuccessful.
  4. [8]
    Mr Maksymiuk is a permanent resident. He points out that the reason Savage issued a Form 12 notice without grounds was so that it could return Il Centro to holiday or short term letting and avoid a breach of the Council’s original development approval. Mr Maksymiuk points out that Savage swore to this position (namely that the zoning was “holiday accommodation” as the permitted use) in an affidavit dated 5 August 2014, at a time when Savage should have known that an application for material change of use was afoot and that it failed to disclose that information to the tribunal.
  5. [9]
    For its part, Savage submits that the Planning & Environment Court’s decision is of no relevance to the Appeal Tribunal’s deliberations. It does not, however, respond to Mr Maksymiuk’s submission that Savage misled the Appeal Tribunal in APL367/14, the decision which was the subject of the appeal to the Court of Appeal.
  6. [10]
    Savage points out, correctly, that the dispute between these parties has consumed much time and money and that a further delay of the appeal will not meet the objects of the QCAT Act, to deal with matters as quickly as possible. Savage must bear some responsibility for that delay; Mr Maksymiuk has, on a number of occasions been successful before the Tribunal because of Savage’s error in procedure.
  7. [11]
    The effect of the Court of Appeal decision is that Savage served a valid Form 12 – notice to leave. The current appeal is from an application to terminate Mr Maksymiuk’s tenancy based on that Form 12.  As the Form 12 was without grounds the status of the Council approval was not relevant to the notice, and so the decision. This factor is one which is against the granting of an injunction.
  8. [12]
    Moreover Mr Maksymiuk does not have a tenancy agreement; he is a month-to-month tenant and Savage can reissue notices at any time. Mr Maksymiuk’s tenure at Il Centro is not assured. This factor is one which is against the granting of an injunction.
  9. [13]
    In the result the application for an injunction is refused.

The registry provide a list of documents filed by Mr Maksymiuk

  1. [14]
    The Tribunal must maintain a register of proceedings.[3] Mr Maksymiuk may inspect that register.[4] That is the extent of Mr Maksymiuk’s rights as to the documents from the Tribunal.

A complete transcript of MCDT 391/14 be delivered to Mr Maksymiuk by registered mail

  1. [15]
    For the reasons given in my decision about Mr Maksymiuk’s July 2015 application, this application fails.

Next steps

  1. [16]
    The hearing of this matter must now proceed.
  2. [17]
    It is ordered that:
    1. Savage Resorts Pty Ltd file any submissions upon which it intends to rely, by:

4:00pm on 9 May 2016.

  1. Mr Maksymiuk file any submissions upon which he intends to rely, by:

4:00pm on 6 June 2016.

  1. The hearing of this matter take place on a date to be specified after 6 June 2016.
  2. Each party be given leave to attend the hearing by telephone.

Footnotes

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

[2] Savage & Savage Resorts Pty Ltd as trustee v Cairns Regional Council [2015] QPEC 037.

[3]  QCAT Act s 229.

[4]  QCAT Act s 229(3).

Close

Editorial Notes

  • Published Case Name:

    Savage Resorts Pty Ltd v Maksymiuk

  • Shortened Case Name:

    Savage Resorts Pty Ltd v Maksymiuk

  • MNC:

    [2016] QCATA 81

  • Court:

    QCATA

  • Judge(s):

    Justice D Thomas, President

  • Date:

    11 Apr 2016

Litigation History

EventCitation or FileDateNotes
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 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 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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