Sorensen v Animanto Pty Ltd

"(1) When the term or interest of the tenant of any land held by the tenant as tenant for any term of years or for any lesser estate or interest whether with or without being liable for payment of rent -

(a) has expired by effluxion of time; or

(b) has been determined by notice to terminate or demand of possession;

and the tenant or any person claiming under the tenant and in actual occupation of the land or any part of the land fails to deliver up possession of such land or part, the landlord may by complaint under this division proceed to recover possession of that land or part of it."

[2] The grounds of appeal were stated in the notice of appeal[1] as follows:

(1) The magistrate erred in law in issuing the warrant as the matter was not a matter that s 141 & 142 of the Property Law Act 1974 applied to, and could be dealt with by complaint.

(2) The magistrate erred in law in failing to find alleged breaches could not constitute breaches at law.

(3) The magistrate erred in law in failing to find that the notices to remedy were invalid and did not entitle the applicant to recover possession.

(4) The magistrate erred in failing to find that on the material before the magistrate, the complainant applicant was not entitled to possession of the premises.

[3] Counsel for the appellants prepared a four page outline of submissions which, in part, dealt with a successful application for an extension of the time within which to bring this appeal. The substantive grounds of appeal were dealt with in paragraphs 7-14 of that outline. The first ground of appeal was dealt with in paragraphs 6-10 as follows (footnotes omitted):

a) The Respondent brought proceedings under Division 5 of the Property Law Act 1974.

b) The grounds were brought by way of complaint and summons under s.141 of the Property Law Act 1974.

c) The use of a complaint and summons to obtain recovery of possession and the s.141 procedure is of limited application.

1. It has always been maintained and still is maintained, that there was no jurisdiction for the complaint procedure to be used under the Property Law Act 1974.

2. The learned authors of Property Law and Practice (Qld) make the following comments in relation to Part 8, Division 5 of the Property Law Act 1974:-

"The situation regarding summary recovery of possession may be thus summarised:

(1) Residential tenancies' ejectment proceedings are covered by Pts 5 and 6 of the Residential Tenancies Act 1994.

(2) All other tenancies are covered by this Division. Relief against forfeiture must still be sought in the Supreme Court or District Court.

(3) This division does not apply to any tenancy determined by forfeiture. The Division only applies to the holding over of fixed tenancies where notice to quit has been given or where a periodic tenancy has been determined in accordance with this Act.

(4) Where the tenancy has been determined by forfeiture for breach of condition a landlord must proceed by way of claim in the Supreme Court or District Court...

As noted in the introductory commentary, this Division has limited application. It does not apply where a tenancy has been determined by way of forfeiture, but it does apply to tenancies by attornment created by mortgages. Its basic application is to:

(a) the holding over of fixed term tenancies which have expired by effluxion of time, where notice has been given; or

(b) periodic tenancies which have been determined by notice."

1. In short there was no lease or tenancy which had expired by effluxion of time (this is conceded). Further, the tenancy was not a periodic tenancy.

1. It is therefore submitted there was no jurisdiction to hear and entertain the matter and make the order for recovery of possession.

**[4] Upon the hearing of the appeal, counsel for the respondent rightly conceded that the appellant's ground of appeal with respect to jurisdiction was soundly based and that the appeal should succeed on that ground.

[5] The appellants sought an order for costs of the appeal.[2] That was not resisted by the respondent, but there remained disputes as to:**

(2) whether a certificate under the Appeal Costs Fund Act ought be granted.

[6] By reason of s 226 of the Justices Act, I may make such order as to costs that I think just. Insofar as the quantum of the appeal costs are concerned, s 232A of the Justices Act provides as follows:

(1) In deciding the costs that are just for this division, the judge may award costs only -

• (a) for an item allowed for this division under a scale of costs prescribed under a regulation; and

• (b) up to the amount allowed for the item under the scale.

(2) However, the judge may allow a higher amount for costs if the judge is satisfied that the higher amount is just having regard to the special difficulty, complexity or importance of the appeal.

[7] The Justices Regulation 2004 prescribes a relevant scale of costs in Schedule 2. Section 4 of Part 1 of Schedule 2 provides that:

For an appeal to a District Court judge under part 9, division 1 of the Act, the amount up to which costs may be allowed for legal professional work is the amount that may be allowed under part 2, as if the work were for a complaint, increased by 20%.

**[8] The amount that may be allowed under Part 2 for instructions and preparation for a hearing (including attendance on the first day) is up to $1,500. Accordingly, by reason of Section 4, the amount which may be allowed pursuant to the scale is up to $1,800. The respondent to this appeal concedes that costs should be allowed in the amount of $1800, but not more.

[9] It was contended, on behalf of the appellants, that it would be just to allow for a higher amount, in accordance with s 232A(2), having regard to the special difficulty, complexity or importance of the appeal. In this regard, I was referred to a number of decisions including Durrant v Gardner 2000 QDC 198 and Lucy v OCC Holdings Pty Ltd & Ors (No 2) 2008 QDC 169.

[10] As McGill DCJ pointed out in Durrant v Gardner (supra)[3], the starting point is always the amount of costs in accordance with any prescribed statutory scale. Even where there is a discretion to award a larger amount, the prescribed scale should be used a guide to the proper exercise of the discretion. In the case of s 232A of the Justices Act, the discretion to award a higher amount is only enlivened where the judge is satisfied that the higher amount is just having regard to the special difficulty, complexity or importance of the appeal. The discretion is not enlivened simply because, as here, the scale would not provide a complete indemnity for costs on a party and party basis.[4]

[11] Lucy v OCC Holdings Pty Ltd & Ors (No 2) (supra) provides an obvious example of a case which involved special difficulty, complexity or importance justifying a higher amount. Robin QC DCJ referred, at paragraph 6 of his reasons, to the multiplicity of complex and difficult questions, as reflected in the very lengthy "catchwords" prepared for the publication of his reasons. The matter had been argued by senior counsel over four "very full" days and had generated hundreds of pages of submissions. His Honour exercised his discretion, by increasing Item 1 in each appeal to $4,000. In each appeal, the appellant recovered a total of $5,350. His Honour considered that to be "just", even though some hundreds of thousands of dollars had in fact been expended (see paragraph 3 of his reasons).

[12] The subject appeal did not involve anything like that level of difficulty, complexity or importance. The determinative ground of appeal was obvious and submissions in support of it were shortly expressed by reference to a well known text. The point was conceded by counsel for the respondent.

[13] It was pointed out, on behalf of the appellants, that the jurisdictional point, while determinative and ultimately conceded, was not the only ground of appeal. It was submitted that the other grounds raised in the notice of appeal, were also grounds which bore on the difficulty, complexity or importance of the appeal, even though they did not ultimately need to be ventilated.

[14] I accept that it is relevant to have regard to the other grounds (argument of which might have been developed, but for the jurisdictional point being conceded). I note however, that the additional grounds, to the extent that they were developed in the outline of submissions by Mr Howe, were discussed in relatively brief compass. While they were also developed in outlines of argument which had previously been filed in a related appeal,[5] those outlines were also able to deal with the matters relatively briefly. I note that the appeal was never anticipated to occupy more than part of one day, as is common with appeals of this kind. While I have had regard to those other grounds, I am ultimately not persuaded that the appeal involved "special difficulty, complexity or importance" such as to make the allowance of a "higher amount" just. Costs will be fixed at $1800.

[15] The remaining issue is the respondent's application for the grant of a certificate under the Appeal Costs Fund Act. While making the application, as instructed, counsel for the respondent properly acknowledged the difficulty in supporting that application, having regard to the part played by (different) counsel for his client in leading the magistrate into error by seeking a remedy in circumstances where there was plainly no jurisdiction.[6] In the circumstances, I am disinclined to grant an indemnity certificate.**

[1] and similarly in the certificate of readiness

[2] I was not asked to consider any other costs

[4] See Durrant v Gardner (supra) at para 45.

[5] The appellant originally appealed, as if this were an ordinary civil appeal. When that was challenged the subject appeal was filed, pursuant to s 222 of the Justices Act and I made an order extending the time for this appeal

[6] See Lachlan v Hartley 1980 Qd R 149 and Haug v Jupiters Limited (trading as Conrad Treasury Brisbane) [2007] QCA 328.