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Image Property v Eastment[2017] QCAT 137

Image Property v Eastment[2017] QCAT 137

CITATION:

Image Property v Eastment & Anor [2017] QCAT 137

PARTIES:

Image Property

(Applicant)

v

Andre Eastment

Kevin Eastment

(Respondents)

APPLICATION NUMBER:

MCDT517-17

MATTER TYPE:

Residential tenancy matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Bertelsen

DELIVERED ON:

5 May 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The respondent’s reopening application is refused.
  2. The residential tenancy agreement between the parties be terminated as from midnight on 17 May 2017 on the grounds of objectionable behaviour.
  3. A warrant of possession is to issue authorising a police officer to enter the premises at 9/1 St Pauls Terrace, Springhill QLD 4000.
  4. The warrant shall take effect on 18 May 2017 and remain in effect for 14 days to expire at 6:00pm on 31 May 2017.
  5. The warrant to be executed as soon as reasonably practical after taking effect.
  6. Entry under the warrant shall only be between the hours of 8:00am and 6:00pm.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Procedure – reopening - adjudicator decision to make termination order in the absence of the respondent – respondents’ application to reopen proceedings – whether there was reasonable excuse for non-attendance

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 138

Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69

APPEARANCES:

 

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. [1]
    On 23 February 2017, Image Property filed an application seeking termination of Andre and Kevin Eastment’s tenancy of premises 9/1 St Pauls Terrace, Spring Hill. The application came before the Tribunal on 3 April 2017. The applicant, Image Property, appeared and sought a warrant of possession. The respondents, Andre and Kevin Eastment, did not appear. A termination order was made.
  2. [2]
    On 10 April 2017, Andre Eastment filed an application to reopen the initiating application. The next day, he filed an application to stay the Tribunal’s decision of 3 April 2017. On 11 April 2017, the Tribunal granted an interim order suspending the operation of the termination order and the warrant of possession until further other.
  3. [3]
    Section 138 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) states that if a party has a reasonable excuse for non-attendance at hearing, then the application can be reopened and heard afresh.
  4. [4]
    In his application to reopen, Andre Eastment apologised for not attending the hearing. He said he had given authority for a Mr Peter Murphy from Tenants Queensland to represent him at hearing. He said he ‘forwarded all of the material relating to the above the application to his office’. He said, after ringing Mr Murphy’s office the week prior to the hearing, he was advised that Mr Murphy was on holidays and was to return the morning of the hearing; that he was then advised that Mr Murphy had been called away to Rockhampton due to the flood crisis and could not represent him at the hearing.
  5. [5]
    Mr Eastment said as he had given all the paperwork to Mr Murphy’s office he was mistaken ‘that the hearing was on Tuesday and was planning to attend until I retrieved a copy of the application and realised that it was listed for Monday’. Mr Eastment asserted there had been a misunderstanding and that he had been seriously let down without notice.
  6. [6]
    The Appeal Tribunal’s decision of Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd (Breezeway),[1] a joint decision of the then QCAT President, Wilson J, and Member Gardiner turned on the same point as here, namely, whether there was a reasonable excuse for not attending the hearing. In Breezeway the appellant company’s representatives misread the hearing date on the Notice of Hearing and turned up at the courthouse two days later. Wilson J stated:

The incorrect reading of a plainly notified date does not, I think, qualify. QCAT has statutory obligations to deal with matters in ways that are accessible, economical and quick…

  1. [7]
    Wilson J went on to say (footnotes omitted):[2]

…parties are expected to present their own cases, and act in their own interests.

That statutory regime places obligations upon parties themselves: to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes serve, as the High Court has recently observed ‘…the public as a whole, not merely the parties to the proceedings’.

The document Breezeway Developments received from QCAT giving it notice of the date of the mediation, or hearing, was an important one. Its officers and staff were required to pay attention to its contents. Nothing, it appears, impeded Breezeway Developments’ comprehension of the document or its opportunity to learn, from it, the correct date.

In the context of the legislation and the demands upon public resources like those which fund QCAT it is not unreasonable to impose, upon a party, an expectation and an obligation that it will ensure it acts in its own best interests, or accept the consequences; and that mistakes like those made here, while attracting sympathy, can no longer prevail over statutory and practical constraints on available resources for dispute resolution.

When these matters are appreciated, it will be seen that a party’s own fundamental error in misreading a document cannot be categorised as a ‘reasonable excuse’ for the purpose of revisiting proceedings which were otherwise correctly and legitimately brought to an end.

  1. [8]
    Member Gardiner pointed out that there was:[3]

…no dispute that proper notice of the hearing was given to Breezeway, only that a mistake was made by the company’s representatives as to the proper day…

Breezeway can show no other error other than its own.

  1. [9]
    Here, it is clear Mr Eastment was given notification of the date of hearing, and that he was aware Mr Murphy was unable to appear for him.
  2. [10]
    There was no notification to the Tribunal registry regarding inability to attend, no adjournment request, no additional reason proffered to the Tribunal in support of reasonable excuse for non-attendance on the day. In fact, nothing other than a latter day realisation of one’s own mistake.
  3. [11]
    In accord with the Appeal Tribunal’s Breezeway decision, the reopening application fails. The reopening application is refused. An amended termination order and warrant of possession ought properly issue nominating a reasonable time for vacate to take place.

Footnotes

[1] [2010] QCATA 69.

[2] Breezeway at [10]-[13].

[3] Breezeway at [18] and [23].

Close

Editorial Notes

  • Published Case Name:

    Image Property v Andre Eastment and Kevin Eastment

  • Shortened Case Name:

    Image Property v Eastment

  • MNC:

    [2017] QCAT 137

  • Court:

    QCAT

  • Judge(s):

    Adjudicator Bertelsen

  • Date:

    05 May 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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