JNL Management Pty Ltd v McKinnon
[2024] QCATA 121
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- JNL Management Pty Ltd v McKinnon[2024] QCATA 121
- Add to List
JNL Management Pty Ltd v McKinnon[2024] QCATA 121
JNL Management Pty Ltd v McKinnon[2024] QCATA 121
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | JNL Management Pty Ltd v McKinnon [2024] QCATA 121 |
PARTIES: | jnl management pty ltd (applicant/appellant) v loretta caRMEN MCKINNON (respondent) |
APPLICATION NO/S: | APL197-23 |
ORIGINATING APPLICATION NO/S: | MCD 2995/22 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 11 November 2024 |
HEARING DATE: | On the Papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Richard Oliver |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – JURISDICTION – LEAVE TO APPEAL – where applicant commenced a minor civil dispute proceeding seeking an order for a warrant of possession as a result of the respondent’s failure to leave under a tenancy agreement – where contested hearing – where proceedings brought in the Supreme Court by the respondent in respect of a contract to purchase the subject property from the applicant – where minor civil dispute proceeding adjourned several times pending the outcome of the Supreme Court proceedings – where minor civil dispute proceeding ultimately dismissed without notice to the applicant – whether applicant entitled to be heard on the proposed dismissal – whether denial of procedural fairness – whether error of law and grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i) Rintoul v State of Queensland & Ors [2018] QCA 20. Terera & Anor 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]On 30 June 2023 the appellant filed an application for leave to appeal or appeal from a decision in the minor civil disputes jurisdiction of the Tribunal made on 5 June 2023. That decision related to a residential tenancy dispute between the appellant, the property owner, and the respondent as the tenant. The decision under appeal was to dismiss the applicant’s application for a warrant of possession for, inter alia, failure to leave pursuant to a notice issued under the Residential Tenancy and Rooming Accommodation Act 2008 (“RTRA Act”).
- [2]The reason for the dismissal was because when the primary application in the minor civil dispute jurisdiction was filed on 28 November 2022, there had been concurrent proceedings in the Supreme Court of Queensland in relation to the property brought by the respondent. The respondent had entered into a contract to purchase the property from the applicant but the sale did not proceed because, it seems, the respondent’s financier was not in a position to settle on the completion date. As a consequence the applicant/seller elected to terminate the contract and the deposit was forfeited.
- [3]The material filed in the minor civil dispute proceeding, and the appeal, indicate that those proceedings were protracted and continued well into 2024. The outcome of those proceedings is still not clear although the applicant submits, in the appeal, that the sale to the respondent is not proceeding, but there is no independent evidence to support that contention. In any event it does not matter because whether the sale proceeds or not has no relevance as to the outcome of the appeal, that is whether the proceeding below should have been dismissed and whether that is an error of law.
- [4]An appeal from the minor civil disputes jurisdiction of the Tribunal is not as of right. Under s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’), an appeal may be made only if the party has obtained leave of the Appeal Tribunal. Leave to appeal (or permission) will usually only be granted where there is a reasonable argument the decision was attended by error, or that an appeal is necessary to correct the substantial injustice caused by the error.[1] Further in Rintoul v State of Queensland & Ors [2018] QCA 20 at [10] the Court of Appeal reiterated the general principles:
The principles governing a grant of leave to appeal are well-established. In short, an applicant for leave to appeal must show:
- the appeal is necessary to correct a substantial injustice;
- 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.
- [5]The error complained of here is that the learned adjudicator dismissed the primary application unilaterally without hearing from the parties, in particular, the applicant. The applicant’s agent, Mr Petrie, had sent an email to the QCAT registry, copying in the respondent, on Friday 2 June 2023 requesting that the application listed for further hearing on Monday 5 June 2023 be postponed for a further month. It goes on to say that “progress has been made” in the Supreme Court proceeding but no settlement has occurred. Mr Petrie,[2] representing the applicant said he was “happy to attend QCAT if the matter is NOT[3] adjourned by QCAT”.
- [6]The history of the minor civil dispute proceeding has been dogged by the Supreme Court proceeding. When the application for the warrant first came on for hearing on 5 January 2023 the learned adjudicator heard some submissions from the applicant as to why the warrant should issue and also about the condition of the rental premises. Photos are included in the application which show the property is littered with objects and rubbish, and supported the contention that the respondent was a “hoarder”. However, that was a side issue because a notice to leave, with two months notice, was given to the respondent in accordance with the then requirements of the RTRA Act. There is little doubt that the warrant would have issued had it not been for the Supreme Court proceeding. As a result of this extraneous issue, the matter was adjourned.
- [7]The application came on for hearing again on 21February 2023 however, on this occasion the respondent did not appear. She was telephoned from the tribunal hearing room but there was no answer. Mr Petrie pressed the point that having complied with the RTRA Act, the warrant should issue, or at least on order be made that the respondent clean the place up, but also conceded that she could be the owner if successful in the Supreme Court. I should point out here that there is no evidence I have seen which identifies the respondent’s cause of action in the Supreme Court, I can only assume it was for some specific performance type relief. Once again because of these uncertainties about the outcome of those proceeding the application was adjourned again.
- [8]The third occasion it came on for hearing was 20 April 2023. Once again, the respondent did not appear but did inform the Tribunal that the Supreme Court proceeding was going to mediation and a mediator had been appointed. Mr Petrie, on instructions from the owner again pressed for the warrant to issue. The same grounds for doing so were ventilated. There was some discussion about the consequences of the Supreme Court proceeding being decided in favour of the applicant owner and similarly in favour of the respondent. Given this conundrum, consideration was given to dismissing the claim despite compliance with the requirements of the RTRA Act, on the basis that the issue would be decided “in another place”.[4] I would observe that if the respondent was unsuccessful, it is unlikely the Court would have issued a warrant for possession.
- [9]Mr Petrie submitted, really as a fallback position, it should be adjourned further on the basis that he was aware of a mention listed for about 18 May 2023. In view of this and the pending mediation the learned adjudicator decided to adjourn the application. To put this into context it is worth recording the comments of the learned adjudicator.[5]
In addition, as part of that process, a mediation has been fixed for the 27th of April. 20 And I am aware in general terms that there are at least some proposals for resolutions of the contract dispute, at least in discussion. In those circumstances, the continuation of these proceedings must be put on hold. My initial thought was that if the respondent wins the Supreme Court action, then the transaction relating to this property would proceed to settlement, and this dispute would disappear. It is just as 25 likely that if Dr McKinnon loses the Supreme Court case, the presiding judge would almost certainly issue a direction as to immediate possession for the applicant.
I will, however, accept Mr Petrie’s request that these matters not be dismissed based upon possibilities that might happen in the Supreme Court but that the matter be 30 adjourned again to a hearing date in the first week of June. I will agree to that, and Mr Petrie is quite aware of processes that if there is a resolution of the matter, he will hear about it a lot earlier than would we. And if these proceedings are no longer necessary, then they can be dismissed on the papers.
- [10]That then brings us to the final hearing which is the subject of the appeal. Notwithstanding the email forwarded to the Tribunal by Mr Petrie, asking that the matter be adjourned, the Tribunal decided to make a final decision and dismiss the minor civil dispute proceeding. The learned member rightly pointed out that it was unsatisfactory for the matter to be continuously adjourned and further that he was not fully appraised of the status of the Supreme Court proceedings. However, despite that dissatisfaction, I am of the view that the applicant still had an entitlement to have the application for the warrant considered on its merits, either at that hearing or at a later date.
- [11]It is difficult to make any informed opinion as to what extent the two proceedings overlapped without more specific detail about the Supreme Court proceeding. However, there can be no doubt that when the application for the warrant was filed, the applicant was prima facie entitled to the relief sought. The fact that the application was not determined at an earlier stage was one more of practicality given the possibility that the respondent may have succeeded in having the subject property conveyed to her, rather than the applicant’s legal entitlement to the relief sought e.g. the warrant for possession. It seems clear that the contract to purchase the property had gone off by the time of filing, and therefore the respondent had no legal interest in the subject property.
- [12]The Tribunal made directions for filing of submissions in the appeal. No submissions were received by the respondent. In accordance with the directions, the applicant filed submissions on 27 October 2023. The submissions refer to the history of the matter and reference to the email to the tribunal at 5:34pm on 2 June 2023 seeking an adjournment referred to above. The material also includes an email from the respondent at 7:37 pm saying she is still negotiating with the owner for the purchase of the property. It is unclear whether those emails came to the attention of the adjudicator prior to making the order to dismiss the application. I suspect not because the time of the decision, by reference to the transcript,[6] is 9:54 am on 5 June 2024 and there is an email from the registry forwarding the email exchange from the parties to the hearing support officer at 10:16am, after the decision was made. Also, there is no reference to the emails in the reasons for the dismissal. Had these emails been brought to his attention, there may well have been a different outcome.
- [13]Having regard to the history of this matter, I have come to the conclusion that the application should not have been dismissed without putting either party on notice that that is what was proposed. In previous hearings the parties had been contacted by telephone and that could have been done at the final hearing. Also, given that minor civil dispute hearings commence at 9:30am, the emails should have been brought to the attention of the learned adjudicator by then.
- [14]As the applicant has, in the circumstances, been denied procedural fairness leave to appeal is granted and the decision of the Tribunal of 5 June 2024 is set aside. The application will be remitted to the minor civil disputes jurisdiction as an urgent tenancy matter for determination by another adjudicator.