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  4. Sipka v Spencer International Pty Ltd t/as Chevron First National Real Estate - [2023] QCATA 76

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Sipka v Spencer International Pty Ltd t/as Chevron First National Real Estate[2023] QCATA 76

Sipka v Spencer International Pty Ltd t/as Chevron First National Real Estate[2023] QCATA 76

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Sipka v Spencer International Pty Ltd t/as Chevron First National Real Estate [2023] QCATA 76

PARTIES:

jovo sipka

(applicant/appellant)

v

Spencer international pty ltd t/as chevron first national

(respondent)

APPLICATION NO/S:

APL082-22

ORIGINATING APPLICATION NO/S:

MCD88/22

MATTER TYPE:

Appeals

DELIVERED ON:

15 June 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

Leave to appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where applicant assumed he had a “rent to buy” agreement with the owner of residential premises – where applicant carried out and paid for maintenance and improvement to rental property – where owner issued a notice to leave and sought a termination order – where termination order made – whether any evidence of “rent to buy” agreement – whether in the absence of some evidence of some memorandum in writing of an agreement it was open to make the termination order.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b)

Property Law Act 1974 s 59 and Division 4

Rintoul v State of Queensland & Ors [2018] QCA 20

Terera v Clifford [2017] QCA 181

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

  1. [1]
    Mr Sipka was a long term tenant of a residential property at Robina on the Gold Coast. He first went into possession in 2004 and continued renting the property without any issues until a termination order was made under the Residential Tenancy and Rooming Accommodation Act on 15 March 2022. This came about because on a routine inspection of the property it was observed that Mr Sipka was making, and had made substantial renovations to the property.
  2. [2]
    Clarification was sought from Mr Sipka as to what authority he had to carry out this work and the Respondent was advised that he had a “rent to buy” agreement with the owner which allowed him to do the renovation work. On investigation with the previous rental manager, The Professionals, they were unaware of any such agreement although the owner did give permission to paint walls.
  3. [3]
    After email correspondence with the owner, the Respondent assured Mr Spika there was no such agreement in place and further the owner said he was “alarmed” at the news. There were further communications with Mr Sipka asking for documents to substantiate his claim of a “rent to buy” agreement but none were forthcoming. Any agreement to transfer real property in Queensland must be contained in a memorandum or note in writing signed by the party to be charged pursuant to s 59 of the Property Law Act 1974.
  4. [4]
    In the absence of any written proof of the agreement alleged by Mr Sipka, the Respondent filed an application in the Tribunal minor civil disputes jurisdiction for a termination order on the basis that Mr Sipka had no authority to undertake the renovation works.
  5. [5]
    The matter came on for hearing on 15 March 2022. The learned adjudicator discussed at length with Mr Sipka his contention that he had an agreement with the owner to buy the property. The transcript of the hearing records Mr Sipka’s evidence of the maintenance and improvements he made to the property over the years. He had discussions with the previous rental agent the Professionals about the work he was doing but there was nothing which would suggest that the agent had any authority to enter into any contract to buy with Mr Sipka on the owner’s behalf. It is stating the obvious that it would be highly unusual for a rental agent to have such authority.
  6. [6]
    The learned adjudicator explained that there were specific procedures for the acquisition of property in Queensland and that it was no possible to buy a property by simply renting it. Mr Sipka accepted that he did not have any discussions with the owner about it either. He was asked about any paperwork to support his position but, despite saying he had paperwork to support the maintenance and improvements, nothing was produced concerning the purchase.
  7. [7]
    It follows, that as he was unable to produce documents he could not establish to the Tribunal’s satisfaction that he had in fact entered into a “rent to buy” agreement with the owner even though he believed this to be the case.
  8. [8]
    The learned adjudicator who heard the matter really had no choice but to reject the assertion of the existence of a “rent to buy” agreement between Mr Sipka and the owner. Therefore she had no choice but to make termination order on the evidence before the Tribunal.
  9. [9]
    Mr Sipka then filed an application for leave to appeal or appeal on 12 April 2022. His grounds of appeal are essentially a denial of procedural fairness, in that the Tribunal did not allow Mr Sipka to present any evidence or argument in support of his case. Also, that he was denied being able to present evidence to establish the rent to buy agreement.
  10. [10]
    As this is an appeal from a decision of the minor civil disputes jurisdiction, under s 142(3)(b)(iii) of the Queensland Civil and Administrative Tribunal Act 2009 may only be made if the appeal tribunal grants leave to appeal. In Rintoul v State of Queensland & Ors [2018] QCA 20 at [10] the Court of Appeal reiterated the general principles for a grant of leave to appeal:

The principles governing a grant of leave to appeal are well-established. In short, an applicant for leave to appeal must show:

  1. (a)
     the appeal is necessary to correct a substantial injustice;
  1. (b)
     there is a reasonable argument that there is an error to be corrected.

There must be reasonable prospects of success to warrant a grant of leave. Therefore, in deciding whether to grant leave to appeal the Court usually makes some preliminary assessment of the prospects of the proposed appeal[1]  

  1. [11]
    Despite Mr Sipka’s assertion in the grounds of appeal that he was denied procedural fairness, this is simply not evident from the transcript of the hearing. He had an interpreter for the hearing and the fundamental issue on which he relied, the rent for buy agreement was fully canvassed. He had every opportunity to advance his case and no evidence of the agreement was produced. Unfortunately the legal position is that his evidence alone of the agreement does not amount to a binding and enforceable interest in the land. As I said above s 59 of the Property Law Act applies to such a transaction. Even if were argued, which it was not, that the purchase was an instalment contract under Division 4 of the Property Law Act, the proposed agreement fails the definition because is not supported by any evidence of:
  1. (a)
    any memorandum in writing of such an agreement;
  2. (b)
    a contract purchase price;
  3. (c)
    a deposit being paid;
  4. (d)
    no acknowledgment by the seller it was an instalment contract.
  1. [12]
    In the appeal, Mr Spika did file a written submission reiterating his assertion about the agreement. Also detailed some of the work he had done on the house, However, even though leave to appeal is generally decided on the evidence before the decision maker, apart from that statement, no further or new evidence was produced to substantiate his position. It is reasonable to assume there just is nothing in writing evidencing the agreement.
  2. [13]
    Having regard to the general principles for leave to appeal I make the following observations. The conclusion reached by the learned adjudicator was clearly open on the evidence, of lack thereof, before her. There is no substantial injustice to be corrected and no error demonstrated.
  3. [14]
    In the circumstances leave to appeal must be refused.

Footnotes

[1]Citing Terera v Clifford [2017] QCA 181

Close

Editorial Notes

  • Published Case Name:

    Sipka v Spencer International Pty Ltd t/as Chevron First National Real Estate

  • Shortened Case Name:

    Sipka v Spencer International Pty Ltd t/as Chevron First National Real Estate

  • MNC:

    [2023] QCATA 76

  • Court:

    QCATA

  • Judge(s):

    Member Richard Oliver

  • Date:

    15 Jun 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Rintoul v State of Queensland [2018] QCA 20
2 citations
Jump To
Cite 1 - [2018] QCA 20
Cite 2 - [2018] QCA 20
Terera v Clifford [2017] QCA 181
2 citations
Jump To
Cite 1 - [2017] QCA 181
Cite 2 - [2017] QCA 181

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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