Richardson v Ray White Mermaid Beach

[2014] QCATA 90

CITATION: Richardson v Ray White Mermaid Beach [2014] QCATA 90

PARTIES:	Deryk Joseph Richardson (Appellant/ Applicant)
v
Ray White Mermaid Beach (Respondent)

APPLICATION NUMBER: APL385-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Dr Forbes, Member

DELIVERED ON: 15 April 2014

DELIVERED AT: Brisbane

ORDER MADE: The application for leave to appeal is refused.

CATCHWORDS:

APPEALS – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where applicant charged with grievous bodily harm – where victim was applicant’s neighbour, occupying property in subject premises – where respondent sought order terminating tenancy of applicant, on basis of s 296 of the Residential Tenancies and Rooming Accommodation Act – where applicant/tenant failed to appear at hearing – where no explanation for non-appearance offered – whether typographical error in a document vitiates proceedings – whether any real doubt that tenant proper respondent – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 93, s 102, s 142
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 296

Thompson and Anor v Jedanhay Pty Ltd [2012] QCATA 246

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. According to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“the RTRAA”), a lessor may apply to the Tribunal for a termination order if a tenant recklessly or wilfully injures someone else allowed on the subject premises, or occupying or allowed on premises nearby.[1]

   [1]RTRAA s 296.

2. When these proceedings began, the appellant (“the Tenant”), by virtue of an agreement dated 7 April 2013, occupied premises at 2/71 Golden Four Drive, Biliinga, Queensland, owned by one R Hinze (“the Lessor”). Clifford George Shuttleworth occupied unit 1/71 in the same building. The Lessor’s agent was the respondent (“Ray White”).

3. It was a term of the said agreement that Ray White might stand in the Lessor’s place in any application to a Tribunal by the Lessor or the Tenant.[2]

   [2]Lease agreement 7 April 2013, Clause 43.

4. On 30 July 2013 Ray White commenced proceedings in the Tribunal for termination of the subject lease, upon these grounds:

   Last night 24 July 2013 our tenant in unit 2 [the appellant Richardson] attacked our tenant in unit 1, which required hospitalisation. [Richardson] was charged with grievous bodily harm.

5. The matter was heard at Coolangatta on 13 August 2013. Ms Montagne, property manager, appeared for Ray White. The Tenant did not appear. The Adjudicator was satisfied that the application and notice of hearing were duly served upon him, and proceeded in his absence.[3]

   [3]QCAT Act s 93.

6. The Adjudicator had before him a formal statement to police by Clifford George Shuttleworth, the occupant of unit 1, dated 3 August 2013, which reads in part:

   I recall Wednesday 24 July 2013 ... It appeared as though [Richardson] heard me come home and then he has turned the music up. It was almost deafening. ... All I remember next was going to ask him to turn the music down ... I have a feeling he dragged me through the door ... I do remember [him] sitting on top of me on my chest. He had some type of stick across my throat. ... and was slamming my head up and down on the floor ... The next thing I recall was being in the back of an ambulance ... I recall waking up in hospital ... I have a large laceration to the back of my head where I needed about 20 stitches ... 2 fractured ribs, bruised kidneys and multiple bruising.

7. That statement was supported by photographs of Shuttleworth’s injuries.

8. In his decision the Adjudicator stated:

   The application is made pursuant to section 296 of the [RTRAA] ... whereby the lessor can apply ... for an order for termination if the tenant ... “has intentionally or recklessly caused ... injury to ... someone else occupying or allowed on the premises”.[4]  I have more than ample evidence before me of the attack on the occupant of unit 1 in the same complex. ... The photographic evidence indicates that the injury occasioned to Mr Shuttleworth is very serious.

   [4]RTRAA s 296(1)(b)(ii).

9. The tenancy was terminated on 16 August 2013 and a warrant of possession came into effect on 19 August 2013. The Tenant subsequently vacated the premises.

10. On 3 September 2013 the Tenant filed this application for leave to appeal,[5] but no further material.[6] He offers no explanation for his non-appearance at the hearing. Apart from disputing the Tribunal’s findings of fact based on uncontested evidence, Part C[7] of the application simply asserts: “The proceedings have been wrongly framed. I am not Deryk R Chardson.” The significance of that assertion, from the Tenant’s viewpoint, is not explained.

    [5]Leave is required by QCAT Act, s 142(3)(a)(i).

    [6]As confirmed by the Tenant on 11 October 2013 (notice to Coolangatta registry).

    [7]Grounds of appeal.

11. Presumably, his allegation that “The proceedings have been wrongly framed” refers to a typographical error in the Notice of Hearing, wherein the letter “i” has been omitted from the Tenant’s surname, so that it appears, not as “Richardson”, but as “R Chardson”. No such error appears in the original application, or in the statement of Shuttleworth, or on the transcript of hearing, or in the notice of decision, or in the warrant of possession issued on 15 August 2013.

12. The typographical error is probably due to the fact that, in the original application, the letter “i” in the Tenant’s surname, while visible, is somewhat smaller than the other letters. At the hearing the Adjudicator noted and corrected the error.[8] It is not the Tribunal’s fault that the Tenant was absent when the minor typographical correction was made.

    [8]Transcript of hearing 13 August 2013 page 1-4 line 23 (“there should be an ‘i’ in there”).

13. If the Tenant is insinuating that such a miniscule error vitiates the orders made against him, the suggestion is simply frivolous. It is indisputable that the Tenant was the lessee and occupier of unit 2/71 at all material times, and that he is the person upon whom the original application, bearing his correct name, was served. On 10 October 2013 he contacted the Brisbane registry to discuss his eviction, making no mention of the isolated slip in which he now seeks some advantage.[9] Furthermore, the Tenant’s application for leave claims self-defence, and protests his innocence in a manner that would be pointless - indeed absurd - if he seriously believed that a mythical Mr Chardon were the proper defendant.

    [9]Registry file note 10 October 2013 3.59 pm.

14. As to the other, argumentative grounds of appeal, suffice it to say that an application for leave to appeal is not an occasion to re-argue findings of fact; they are matters for the primary decision-maker,[10] particularly when they are based on evidence undisputed at the trial. His findings in this case are beyond dispute.

    [10]Thompson and Anor v Jedanhay Pty Ltd [2012] QCATA 246 at [28].

15. In short, this application for leave to appeal is utterly devoid of substance. It would merit an order for costs,[11] but none has been sought, and one would probably be worthless in the circumstances. 

    [11]QCAT Act s 102.

16. The application for leave will be refused.

ORDER

The application for leave to appeal is refused.