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- Unreported Judgment
Hayward v Fletcher QCATA 187
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Hayward & Anor v Fletcher  QCATA 187
MELISSA JANE HAYWARD
CRAIG RONALD FLETCHER
ORIGINATING APPLICATION NO/S:
3 December 2018
On the papers
4:00 pm on 21 December 2018.
4:00 pm on 18 January 2019.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – OTHER MATTERS – where an application was made to be added as an Applicant/Appellant – where the person applying had not been named as a party in the proceedings at first instance – where a Warrant was issued and executed for recovery of possession of premises under a residential tenancy – where the person alleged that she was a co-tenant, and should have been named as a party in the proceedings at first instance – where an application was made to strike out the application for leave to appeal or appeal
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- An order was made by the Tribunal on 15 March 2018 directing the issue of a warrant of possession in relation to a residential tenancy at New Beith, Queensland.
- An application for leave to appeal or appeal was filed by Melissa Jane Hayward on 19 March 2018.
- An interlocutory application to be joined as an applicant in the appeal and to stay a decision was filed by Kristy Lee Hayward on 25 June 2018.
- Craig Ronald Fletcher filed an interlocutory application for miscellaneous matters on 3 July 2018 seeking the following orders:
- (1)Dismiss the application to be joined as a party to a proceeding filed by Kristy Lee Hayward on 25 June 2018
- (2)Dismiss the application to stay a decision filed by Kristy Lee Hayward.
- (3)Dismiss a statement of Melissa Jane Hayward and submissions filed 21 June 2018
- (4)Dismiss a further statement of Melissa Jane Hayward and submissions filed 21 June 2018.
- I gave directions on 27 July 2018 as to submissions in relation to those interlocutory applications.
- I also directed on 27 July 2018 that the application to stay a decision filed by Kristy Lee Hayward on 25 June 2018 was dismissed, as she had not informed the Tribunal in writing that she wished to proceed with that application.
- The application of Craig Ronald Fletcher in paragraph 2 of his application for miscellaneous matters on 3 July 2018 therefore is no longer required to be determined.
- Submissions have been filed by Craig Ronald Fletcher and Melissa Jane Hayward as to the interlocutory applications. There is a high degree of acrimony between the parties, as evidenced in the animated submissions, and each accuses the other of attempting to misuse the processes of the Tribunal.
- The utility of an appeal ruling as to the issue of the warrant of possession may be in question, as Melissa Jane Hayward and Kristy Lee Hayward have vacated the premises some time ago, after execution of the warrant.
- Melissa Jane Hayward and Kristy Lee Hayward have not identified the specific utility of the appeal, but Melissa Jane Hayward described it as a matter of fairness and justice:
14. If QCAT matter 0177/2018 is not dismissed, then this should be referred for a new hearing where I am provided procedural fairness. That I can call my witnesses. That I can present my evidence it was not reasonably available to me on 15 March 2018.
15. Without this matter being dismissed or a new hearing ordered I would suffer significant injustice because of this false and misleading, vexatious and fraudulent application made by Craig Ronald Fletcher.
- Similarly, Kristy Lee Hayward described the reason for proceeding with the appeal in similar terms:
QCAT cannot make me whole again with this erroneous QCAT decision 11 June 2018 which caused me to be evicted from the property, but my application for leave to appeal/appeal filed 19 March 2018 is now about correcting this injustice of the original decision 15 March 2018 and getting justice.
- Kristy Lee Hayward provided the following details of why she wished to be joined to the proceeding:
- (1)I am the second tenant at 118 – 124 Red Gum Road New Beith with Melissa Jane Hayward .
- (2)There is a fixed term tenancy with Craig Fletcher until 12 September 2018.
- (3)The respondent deliberately did not include me in his form 2 application MCDT 177/2018 filed 24 January 2018.
- (4)I was unable to defend the application brought by Craig Fletcher at QCAT hearings 8 March 2018 and 15 March 2018 as I was not named in the application MCDT 177/2018.
- (5)Craig Ronald Fletcher made a false and fraudulent application (MCDT 1177/2018) to QCAT.
- (6)Craig Ronald Fletcher provided to QCAT in his application filed 24 January 2018 false and fraudulent information and documents.
- (7)Craig Ronald Fletcher gave false testimony to QCAT hearings 8 March 2018 and 15 March 2018.
- (8)I would suffer significant injustice if I was not joined to the application for leave to appeal/appeal and application to stay a decision APL 062/2018 of Melissa Jane Hayward.
- An affidavit of Kristy Lee Hayward dated 19 March 2018 was attached to the application to stay a decision filed by Melissa Jane Hayward on 19 March 2018.
- The affidavit of Kristy Lee Hayward states that:
- (1)the original tenancy application was between The Professionals Logan Lifestyles Real Estate on behalf of Craig Fletcher and Kristy Lee Hayward and Melissa Hayward;
- (2)the bond lodged on 17 March 2015 was in the names of Kristy Lee Hayward and Melissa Hayward for the amount of $2,660,00;
- (3)she signed a further renewal of lease on 9 July 2015; and
- (4)The Professionals Logan Lifestyles Real Estate accepted the lease renewal dated 9 July 2015.
- Kristy Lee Hayward further says in her affidavit that Craig Ronald Fletcher removed her name from further renewal leases dated 15 September 2016 and 12 August 2017 without her written consent.
- Kristy Lee Hayward states that she was advised on 19 March 2018, by a client services officer at the Residential Tenancies Authority, that her name appeared on the bond lodged for the property.
- Craig Ronald Fletcher disputes that Kristy Lee Hayward was a tenant of the property at the time of the giving of the form 12 Notice To Leave.
- I am satisfied that the affidavit of Kristy Lee Hayward establishes an arguable case that she might be found to have been a tenant of the property at the relevant time. It is significant that the records of the residential tenancy authority still showed her as a provider of the bond at the time of the giving of the Notice to Leave.
- The issues which Kristy Lee Hayward has raised as to her standing as a tenant, which indicate a basis for her to be considered to have been a party to the tenancy, are best resolved upon a hearing, and I consider that it is appropriate that Kristy Lee Hayward be able to participate in the appeal as an applicant.
- Craig Ronald Fletcher submits that the tenant has failed to show how a substantial injustice has occurred, and has submitted falsified documentation to the Tribunal.
- It is not the purpose of interlocutory proceedings to determine the merits of the proceedings. I am satisfied that Melissa Jane Hayward and Kristy Lee Hayward have shown an arguable case that the initial hearing may have resulted in an injustice, sufficient for them to be entitled to have their appeal proceed to determination.
- Mr Fletcher has raised issues as to delay in the filing of submissions by Melissa Jane Hayward. She has now filed submissions as directed. Whilst directions obviously are required to be observed in a timely fashion, there is no immediate consequence that the failure to comply with a time delivery date results in the automatic dismissal of the proceedings.
- In the circumstances, the best interests of all parties, and the minimisation of the use of Tribunal’s resources, is best achieved by the matter proceeding to a hearing without further interlocutory steps, and with as little further formality as possible, and I restate the earlier directions as to the filing of material, but with new dates.
- I urge the parties to focus their attention on complying with the directions, so that the matter can be properly determined as efficiently as possible.
- I order that:
- (1)Kristy Lee Hayward is joined as an applicant in the proceedings.
- (2)The application by Craig Ronald Fletcher filed on 3 July 2018 (to dismiss the statement of Melissa Joan Hayley, and submissions filed June 2018; and to dismiss a further statement of Melissa Jane Hayward, and submissions filed 21 June 2018) is dismissed.
- (3)Melissa Jane Hayward and Kristy Lee Hayward must file in the Tribunal two (2) copies and give to Craig Fletcher one (1) copy of:
- (a)all submissions detailing the alleged errors of fact and/or law made by the original decision maker;
- (b)any further submissions in support of the application for leave to appeal or appeal that she/they wish to rely upon, or advise that no further material is to be filed, by:
4:00 pm on 21 December 2018.
- (4)Craig Ronald Fletcher must file in the tribunal two (2) copies and give to Melissa Jane Howard and Kristy Lee Hayward one (1) copy of all submissions in reply by:
4:00 pm on 18 January 2019.
- (5)The Application for appeal, or leave to appeal, is to be set for a Directions Hearing (to consider the setting of the matter for hearing, and/or any other directions), at a time and date to be advised by the Registry after 18 January 2019.
- Published Case Name:
Hayward & Anor v Fletcher
- Shortened Case Name:
Hayward v Fletcher
 QCATA 187
03 Dec 2018