Tracey v Bribie Island Caravan Park
[2023] QCATA 162
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- Unreported Judgment
- Tracey v Bribie Island Caravan Park[2023] QCATA 162
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Tracey v Bribie Island Caravan Park[2023] QCATA 162
Tracey v Bribie Island Caravan Park[2023] QCATA 162
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Tracey v Bribie Island Caravan Park [2023] QCATA 162 |
PARTIES: | ANTHONY CHARLES TRACEY (applicant) v bribie island caravan park (respondent) |
APPLICATION NO/S: | APL379-23 |
ORIGINATING APPLICATION NO/S: | MCDT273/23 (Caboolture) |
MATTER TYPE: | Appeals |
DELIVERED ON: | 8 December 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Member Lember |
ORDERS: | IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:
THE APPEAL TRIBUNAL DIRECTS THAT:
|
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where stay is sought of a decision made in the minor civil dispute jurisdiction – where tenant sought to set aside a notice to leave – where application to set aside notice out of time – where application to terminate also brought out of time – where errors of law evident in the decision – where interim order made granting stay Acts Interpretation Act 1954 (Qld) s 38A Residential Tenancies and Rooming Accommodation Act 2008 Qld s 246A, s 293, s 329, s 349, s 426 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 58, s 61,, 143, s 145, Schedule 3 Betts v Department of Housing and Public Works [2019] QCATA 180 Cachia v Grech [2009] NSWCA 232 Camden v McKenzie [2007] QCA 136 Day v Humphrey [2017] QCA 104 Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Hessey-Tenny & Anor v Jones [2018] QCATA 13 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Penfold v Firkin & Balvius [2023] QCATA 11 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Simonova v Department of Housing and Public Works [2018] QCA 60 Symes v Kahler [2022] QCATA 35 |
APPEARANCES & REPRESENTATION: | 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
What is this application about?
- [1]Mr Tracey wishes to appeal a decision made by the Tribunal below to evict him from the site upon which his caravan rests in the Bribie Island Caravan Park (‘BICP’). He seeks to stay the eviction pending the outcome of his application for leave to appeal and, if granted, the appeal.
- [2]This decision addresses the stay application and makes directions for the conduct of the ongoing application for leave to appeal and appeal.
Background
- [3]By a notice to leave (‘Form 12’) given 23 May 2023, the BICP sought to end Mr Tracey’s tenancy of the site on the grounds of an intended change of use of the property.
- [4]When Mr Tracey did not vacate the site by the handover date in the Form 12, BICP then filed an application to terminate Mr Tracey’s tenancy (MCDT273/23), which was heard on 10 November 2023 in Mr Tracey’s absence.
- [5]Mr Tracey had, on 25 August 2023 filed an application (MCDT215/23) to set aside the Form 12 on the grounds that it was retaliatory, but, curiously, this application had not been decided, or even listed, before the 10 November 2023 hearing.
- [6]By an application for miscellaneous matters filed in MCDT273/23 on 25 October 2023, Mr Tracey had sought orders:
- to dismiss MCDT273/23 as the application was filed out of time (namely, more than two weeks after the handover date in the Form 12 per s 293 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’)); and
- failing that, to consolidate MCDT215/23 and MCDT273/23 so that they may be heard together,
but, for reasons not given, the Tribunal below dismissed both requests on 10 November 2023 before it considered BICP’s application to terminate.
- [7]BICP’s application to terminate Mr Tracey’s tenancy was successful and the Tribunal below made an order terminating Mr Tracey’s tenancy from 24 November 2023 on the grounds of failure to leave and issued a warrant of possession to take effect on 27 November 2023 (the ‘Decision’).
- [8]Mr Tracey applied to stay the Decision and for leave to appeal and to appeal it.[1] He says that:
- The hearing should not have proceeded in his absence as he did not have notice of the hearing and, in any event, he was unable to attend it due to a medical condition. This is disputed by BICP and is not established on the evidence before the Appeal Tribunal.
- His application to consolidate MCDT215/23 and MCDT275/23 should have been granted with the effect that MCDT275/23 (the application for termination for failure to leave) should not have been determined before MCDT215/23 (the application to set aside the notice to leave) was determined. Whilst ordinarily an application to set aside a notice to leave should always be considered before an application to terminate grounded upon that notice is heard, the point is moot for present purposes because by s 246A of the RTRAA, an application by a tenant for retaliatory action taken against them must be made within one month after the tenant becomes aware of the lessor taking the action and, as such, Mr Tracey’s application in MCDT215/23 was futile as it was filed well out of time.
- He is sixty-three years of age and suffers from a medical condition. Further, he has invested $100,000 in his caravan and will be out of pocket for his retirement and rendered homeless if the Decision is permitted to stand. On the evidence before the Appeal Tribunal there is no merit in this argument as there is nothing to suggest that BICP represented or promised that tenancy of the site is a permanent arrangement or guaranteed to continue where a van is purchased: in fact, tenants are warned that sites are not guaranteed.
- [9]Mr Tracey makes various other allegations of misconduct and wrongdoing on the part of the BICP that are not made out on the evidence currently before the Appeal Tribunal. It is unnecessary that I make any findings on those allegations.
- [10]Having said that, although not pursued on appeal, Mr Tracey’s original objection to the termination application as having been filed out of time is the critical issue in this application because it determines jurisdiction.
- [11]Even if the parties do not raise the question of jurisdiction, the Appeal Tribunal has observed that “there is a fundamental obligation on any court or tribunal to satisfy itself as to jurisdiction when being asked to quell controversies that come before it”.[2]
Stays and applications for leave to appeal under the QCAT Act
- [12]Under s 145(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) the Appeal Tribunal may make an order staying the operation of a decision of the Tribunal below until the appeal is finally decided. However, there is no appeal until and unless leave to appeal has been granted where required.
- [13]Section 58(1) of the QCAT Act permits the Appeal Tribunal to make any interim order it considers appropriate in the interests of justice, including, for example:
- to protect a party’s position for the duration of the proceeding; or
- to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction for the proceeding.
- [14]A “proceeding” is defined in Schedule 3 of the QCAT Act to generally mean “a proceeding before the tribunal, including an appeal before the appeal tribunal and a proceeding relating to an application for leave to appeal to the appeal tribunal”.
- [15]Therefore, an application to stay a decision that falls outside the ambit of s 145 may be considered under s 58 to allow a stay of a primary order in circumstances where leave to appeal has not yet been granted.[3]
- [16]McMurdo JA said in Simonova v Department of Housing and Public Works[4] that “the circumstances must be exceptional before an order in the nature of a stay will be granted, pending an application for leave to appeal”.
- [17]To succeed on a conventional application for a stay, the party applying for the stay must satisfy the Appeal Tribunal that there is a good reason for the stay, including:[5]
- that the applicant has a good arguable case on appeal;
- that the applicant will be disadvantaged if a stay is not ordered; and
- that competing disadvantage to the respondent, should the stay be granted, does not outweigh the disadvantage suffered by the application if the stay is not granted.
A good arguable case on appeal
- [18]Mr Tracey requires leave to appeal. In determining whether to grant leave, the Appeal Tribunal must be satisfied that, relevantly:
- [19]I find that an error has been made in the primary decision as the application for termination has been filed out of time:
- The application for termination filed on 10 October 2023 was grounded upon a failure to leave following the giving of a Form 12 Notice to Leave.[9] Such an application must be filed within two weeks after the handover date in the Form 12.[10]
- The Form 12 was given on 23 May 2023 and provided for a handover date of 25 September 2023, but the day when the notice is given is not counted in calculating time (Betts v Department of Housing and Public Works [2019] QCATA 180, [18]), applying section 38(1) of the Acts Interpretation Act 1954 (Qld).
- Two weeks from, but excluding, 25 September 2023 ends on 9 October 2023. The application was filed on 10 October 2023.
- Neither s 349 nor s 61 of the QCAT Act can be relied upon to extend time mandatory time limits (Betts v Department of Housing and Public Works [2019] QCATA 180, [16]).
- A termination order based on an application that has been filed out of time must be set aside for a lack of jurisdiction (Symes v Kahler [2022] QCATA 35, [17]).
- [20]Leave is needed in those circumstances to correct the substantial injustice to Mr Tracey of his eviction caused by an assumption of jurisdiction to make a termination order where there was none.
Where does the balance of convenience lie?
- [21]BICP is at a financial disadvantage if the stay is granted because it cannot change its use of the site occupied by Mr Tracey to a use that is more profitable, however, this is vastly outweighed by the disadvantage of displacement to Mr Tracey if the stay is refused where he has a strongly arguable case on the appeal. The circumstances therefore favour granting the stay.
What should happen next?
- [22]Accordingly, pursuant to section 58 of the QCAT Act the decision in MCDT273/23 (Caboolture)_made on 10 November 2023 is stayed pending further order of the Appeal Tribunal.
- [23]In relation to the application for leave to appeal and appeal, on a preliminary basis, subject to any submissions which may be made by a party, I am satisfied that there has been an error of law on the part of the Tribunal below in making the Decision when it had no statutory power to do so.
- [24]For these reasons I intend to grant leave to appeal, to allow the appeal, to set aside the decision made in MCDT273/23 (Caboolture) on 10 November 2023 and to dismiss BICP’s application in MCDT273/23 for want of jurisdiction because its application was filed out of time. The effect of such an outcome would be that the BICP will need to start again with its RTRAA procedures (issuing notice and so on) before returning to the Tribunal, and in this regard, Mr Tracey should take heed that his tenancy of the site is by no means guaranteed in perpetuity.
- [25]If any party wishes to make submissions in relation to the application for leave to appeal or appeal and/or in response to the orders I have proposed in paragraph [24] above, they must file two (2) copies of those submissions in the Tribunal and give a copy to any other party by 4pm on 5 January 2024.
- [26]The application for leave to appeal or appeal will be determined on the papers not before 8 January 2024.
Footnotes
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 143(3).
[2] Penfold v Firkin & Balvius [2023] QCATA 11.
[3] Hessey-Tenny & Anor v Jones [2018] QCATA 131 at [24].
[4] [2018] QCA 60 at page 5.
[5] Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 per Jerrard JA at [8]; Day v Humphrey [2017] QCA 104 per Morrison JA at [5] and [6].
[6] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[7] Cachia v Grech [2009] NSWCA 232, 2.
[8] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[9] RTRAA, s 293(1).
[10] Ibid, s 293(2).