Marsellos Pike Real Estate v Bate

CITATION:

Marsellos Pike Real Estate v Bate [2014] QCATA 316

PARTIES:	Marsellos Pike Real Estate (Applicant)
v
Rebecca Bate (Respondent)

APPLICATION NUMBER:

APL401 -14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

18 November 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where notice to remedy breach – where insufficient notice provided – where application to terminate tenancy refused – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28.
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 328, 349

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118

Chambers v Jobling (1986) 7 NSWLR 1

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232
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

APPEARANCES and REPRESENTATION (if any):

The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

Ms Bate was 49 days in arrears of rent. Marsellos Pike Real Estate, acting as agent for the lessor, issued a notice to remedy breach. Ms Bate did not pay. Marsellos Pike issued a notice to leave. Ms Bate did not leave. Marsellos Pike filed an application to terminate Ms Bate’s tenancy. The tribunal dismissed the application.
Marsellos Pike wants to appeal that decision. It says the learned Adjudicator failed to act fairly, failed to consider all evidence before him and failed to make a decision based on all the merits of the case. It says that the learned Adjudicator made his decision on a technicality, without considering the merits of the case in circumstances where he had discretion to waive non-compliance.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2]        Cachia v Grech [2009] NSWCA 232 at 2.
[3]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The learned Adjudicator dismissed Marsellos Pike’s application because it did not give the required period of notice in its notice to remedy breach.
Section 328 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) states that the period for remedying a breach of tenancy must not end earlier than seven days after it is given. Marsellos Pike issued the notice on 1 August 2014. As the learned Adjudicator observed[5] ‘issued’ is not the same as ‘given’. Marsellos Pike gave the notice to Ms Bate by positing it on Friday 1 August 2014. The earliest date she could have received it was 4 August 2014. The notice called for the breach to be remedied by 10 August 2014. The learned Adjudicator was correct in finding that Marsellos Pike did not give the necessary seven days’ notice.
[5] Transcript page 1-9, lines 1 – 9.
The learned Adjudicator was also correct in finding that he had no discretion to waive the requirement of seven days’ notice. The learned Adjudicator pointed out that notice period in s 328(1) of the RTRA Act is mandatory. Section 349 does not allow the tribunal to cure defects in a notice to remedy breach, only a notice to leave. This tribunal has published many decisions confirming that the RTRA Act is proscriptive[6] and the tribunal has no power to waive compliance with its mandatory provisions.
[6] Lowe v Aspley [2010] QCATA 59 at [10].
Marsellos Pike misunderstands the effect of s 28 of the QCAT Act. While the tribunal must act fairly and according to the substantial merits of a case, it must also apply the law. Section 28 cannot overcome the proscriptive nature of the RTRA Act.
The tribunal may admit evidence despite non-compliance with any time limit. That is a procedural power. It allows the tribunal to receive evidence, not to cure a defect in the evidence. The learned Adjudicator did admit evidence of the notice to remedy breach but, because of s 328 of the RTRA Act, he could not give it effect.

There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.

The matter of Marsellos Pike Real Estate v Bate came before the court, where the dispute revolved around a breach of tenancy terms. The original application was filed in the Magistrates' Court of Victoria, where the appellant, Marsellos Pike Real Estate, sought to terminate the respondent's tenancy following a breach of lease conditions. The respondent, Bate, argued that the notice provided to remedy the breach was insufficient, leading to the application being refused. The appellant then sought leave to appeal this decision.

The central legal issues the court had to address were whether the notice given to the respondent was adequate under the law and whether there were grounds for the appellant to appeal the Magistrates' Court's decision. The court had to consider the statutory requirements for a notice to remedy a breach of lease and evaluate the sufficiency of the notice provided by the appellant. Additionally, the court examined the criteria for granting leave to appeal, particularly in the context of a minor civil dispute.

In its reasoning, the court found that the notice given by the appellant did not comply with the statutory requirements, which necessitated a specific form and content for notices to remedy breaches. Consequently, the Magistrates' Court's decision to refuse the application to terminate the tenancy was upheld. The court further held that the appellant had not demonstrated sufficient grounds for leave to appeal, as the primary issue centred on the adequacy of the notice, which did not present a significant legal question warranting appellate review. The court's decision was thus to refuse leave to appeal.

As a result, the court issued an order refusing the appellant's application for leave to appeal the Magistrates' Court's decision. The order confirmed that the notice provided by the appellant was insufficient and that the grounds for appeal were inadequate.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established