McGrath Real Estate – Surfers Paradise v von Allmen
[2021] QCAT 12
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- McGrath Real Estate – Surfers Paradise v von Allmen[2021] QCAT 12
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McGrath Real Estate – Surfers Paradise v von Allmen[2021] QCAT 12
McGrath Real Estate – Surfers Paradise v von Allmen[2021] QCAT 12
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | McGrath Real Estate – Surfers Paradise v von Allmen [2021] QCAT 12 |
PARTIES: | McGRATH REAL ESTATE – SURFERS PARADISE (applicant) v NATASHA von ALLMEN (respondent) |
APPLICATION NO/S: | MCDT722/20 |
MATTER TYPE: | Residential tenancy matters |
DELIVERED ON: | 5 January 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Cranwell |
ORDERS: | The application to stay a decision filed on 5 January 2021 is dismissed. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – reopening application – whether stay should be granted pending determination of reopening application Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 138A, s 139, Schedule 3 Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 |
REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Self-represented |
APPEARANCES: | 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
- [1]On 2 December 2020, the learned adjudicator made the following orders:
- Application for adjournment is refused.
- Within 21 days the Respondent pay the Applicant $1,720.00.
- [2]On 5 January 2021, Ms von Allmen filed:
- (a)an application for reopening of the decision made on 2 December 2020; and
- (b)an application to stay the decision made on 2 December 2020.
- (a)
- [3]The application to stay the decision is presently before me.
- [4]It is trite to note that an application for reopening is not an appeal. The grounds for reopening are limited to the two grounds set out in Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act):
- (a)the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or
- (b)the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.
- [5]Section 139(4)(a) of the QCAT Act provides that the application may be granted only if “a reopening ground exists for the applicant party”.
- [6]In her application for reopening, Ms von Allmen made the following statements:
On the date of the hearing I received a call from QCAT. I was with my doctor receiving medical treatment at the time. The call was unexpected and I was unable to fully participate.
The Adjudicator tried to make me feel obliged and pressured to participate in the hearing by phone without prior consultation or knowledge on my behalf and she dismissed how ill I am. It seemed she didn’t care and showed a complete disregard to me as a human being and to medical evidence I provided her with. She told me I “sound fine and to avoid stress, I should participate in the hearing”. Who tells a person that, that they can’t see, and makes an assumption based on how a person sounds. She even went so far to say that because of my ill health I should not get an adjournment as I may never be well enough. I have never had someone so disrespectful and judgmental that’s meant to be impartial, and the hearing was recorded, so it would all be in the recordings to attest to my truth.
I asked for an adjournment and it was denied. The matter proceeded to be heard and a monetary order was made in favour of the real estate agent.
As the adjournment was denied, my rights to natural justice and procedural fairness were disregarded with prejudice.
- [7]Ms von Allmen went on to state:
I am requesting a reopening to allow me time [to] present further documents to the court and I will suffer a significant injustice if the reopening is not granted.
…
I never moved into the property because my circumstance changed due to my ill health and I never moved to Queensland as planned. I continued to pay rent from May 2019 until September 2019. I have emails confirming that the agent was in agreement that I could end the lease by mutual termination due to my ill health.
- [8]Section 138A(2) of the QCAT Act gives the Tribunal the power to stay a decision pending the determination of a reopening application. The general principles for the determination of a stay application were set out by Jerrard JA in Elphick v MMI General Insurance Ltd & Anor as follows:[1]
To succeed on an application for a stay the applicants must show good reason for the stay to be granted and that it is an appropriate case in which to grant a stay. Those authoritative decisions in this court establish that an applicant should demonstrate:
- A good arguable case on appeal.
- That the applicant will be disadvantaged if a stay is not ordered.
- That competing disadvantage to the respondent should the stay be granted, does not outweigh the disadvantage suffered by the applicant if the stay not be granted.
- [9]It is not my role to determine the application for reopening at an interlocutory stage. However, I make the following observations on the merits of Ms von Allmen’s application for reopening based on the material before me:
- (a)In relation to the first reopening ground, it seems from her own account that Ms von Allmen appeared at the hearing. Issues of procedural fairness at the hearing are beyond the scope of this ground.
- (b)In relation to the second reopening ground, Ms von Allmen has referred to emails between herself and the agent relating to a period in 2019. I note that the claim was filed on 1 June 2020, and the hearing took place some six months later. It is not readily apparent to me that the emails have the quality of being “new evidence” or that the emails were “not reasonably available” by the time of the hearing on 2 December 2020.
- (a)
- [10]In these circumstances, I am not satisfied that Ms von Allmen has a good arguable case on the application for reopening.
- [11]Further, Ms von Allmen has not raised any specific grounds of disadvantage if she has to pay the amount of $1,720. For example, she has not stated that she is unable to afford to pay the amount ordered, or that she would be adversely financially impacted if she was required to do so.
- [12]The application to stay a decision is therefore dismissed.
Footnotes
[1][2002] QCA 347, [8] (footnotes omitted).