Tracey v Bribie Island Caravan Park
[2024] QCATA 5
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- Tracey v Bribie Island Caravan Park[2024] QCATA 5
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Tracey v Bribie Island Caravan Park[2024] QCATA 5
Tracey v Bribie Island Caravan Park[2024] QCATA 5
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Tracey v Bribie Island Caravan Park [2024] QCATA 5 |
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: | 24 January 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Member Lember |
ORDERS: | IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where application for termination of a residential tenancy dispute relied upon a notice to leave on grounds of intended change of use – where application for termination filed out of time Residential Tenancies and Rooming Accommodation Act 2008 Qld s 293, s 349 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 32, s 61, s 143, s 146, Schedule 3 Betts v Department of Housing and Public Works [2019] QCATA 180 Cachia v Grech [2009] NSWCA 232 Ericson v Queensland Building Services Authority [2013] QCA 391 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 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 Symes v Kahler [2022] QCATA 35 Tracey v Bribie Island Caravan Park [2023] QCATA 162 |
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’), but he needs leave to do so. [1]
- [2]In Tracey v Bribie Island Caravan Park [2023] QCATA 162 the decision to evict was stayed pending the outcome of his application for leave to appeal and, if granted, the appeal. Parties were directed to file and serve submissions on an apparent error of law that went to the important question of jurisdiction and whether the Appeal Tribunal ought to grant leave to appeal and allow the appeal in those circumstances.
- [3]The background to the application is summarised at paragraphs [3] to [7] of Tracey v Bribie Island Caravan Park [2023] QCATA 162 as follows:
- [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]By an application for miscellaneous matters filed in MCDT273/23 on 25 October 2023, Mr Tracey had sought orders:
- (a)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
- (b)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’).
- [4]In determining whether to grant leave to appeal, the Appeal Tribunal must be satisfied that, relevantly:
- there is a reasonably arguable case of error in the primary decision;[2]
- there is a reasonable prospect that the appellant will obtain substantive relief;[3] and
- leave is needed to correct a substantial injustice caused by the error;[4] or
- there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[5]
- [5]
- [6]
- [7]The Form 12 was given on 23 May 2023 and provided for a handover date of 25 September 2023.
- [8]Two weeks from, but excluding, 25 September 2023 ends on 9 October 2023. The application was filed on 10 October 2023 and was, therefore, filed one day out of time.
- [9]Neither s 349 of the RTRAA 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]).
- [10]It is clear from the submissions of the BICP that they require Mr Tracey’s site for their proposed change of use, however, their termination application was filed out of time and any submissions they make as to hardship or the urgency to change use are not relevant to the appeal decision.
- [11]The termination order made on an application that was filed out of time must be set aside for a lack of jurisdiction (Symes v Kahler [2022] QCATA 35, [17]).
- [12]Leave to appeal is granted to correct the substantial injustice to Mr Tracey caused by an assumption of jurisdiction to make a termination order where there was none.
- [13]As the Tribunal fell into an error of law in deciding the application in MCDT272/23 in circumstances where it did not have the jurisdiction to do so, the appeal is allowed, and the Decision is set aside.
- [14]
- [15]The evidence before the Appeal Tribunal is more than sufficient to conclude that the application for termination is incurably defective because it was filed out of time and there is no power to extend time.
- [16]Returning the application to the Tribunal is a wasted exercise because the only decision available to it is to dismiss the application for termination for want of jurisdiction. Consistent with the objects of the QCAT Act which include to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal, and quick,[11] in the interests of expediency, I elect to substitute the Decision with a decision to dismiss the application in MCDT273/23 for want of jurisdiction.
Footnotes
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 143(3).
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232, 2.
[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.
[6] Penfold v Firkin & Balvius [2023] QCATA 11.
[7] RTRAA, s 293(1).
[8] Ibid, s 293(2).
[9] QCAT Act, s 146(c).
[10] Provided that in doing so, the substituted decision can resolve the matter and does not entail any rehearing of the evidence: See Ericson v Queensland Building Services Authority [2013] QCA 391 at [25].
[11] QCAT Act, s 3.