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The Estate of Raphael Michel Verkest v Smith[2016] QCATA 73

The Estate of Raphael Michel Verkest v Smith[2016] QCATA 73

CITATION:

The Estate of Raphael Michel Verkest v Smith [2016] QCATA 73

PARTIES:

The Estate of Raphael Michel Verkest

(Applicant/Appellant)

v

William Smith

(Respondent)

APPLICATION NUMBER:

APL525 -15

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

20 May 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal granted.
  2. Appeal allowed.
  3. The decision of 4 December 2015 is set aside.
  4. The application to dismiss or strike out the application is granted.
  5. The application filed 27 August 2015 is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where claim for compensation – where no referral to conciliation

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – STRIKE OUT – where application to strike out proceeding – where tribunal acknowledged defect but refused to strike out – whether grounds for leave to appeal

2009 (Qld) s 47(1)(c)

Pickering v McArthur [2005] QCA 294

Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277

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. [1]
    Raphael Verkest was a tenant in a property owned by William Smith. The tribunal terminated Mr Verkest’s tenancy by order of 27 May 2015. Mr Verkest passed away. Mr Smith, by his attorney, then filed an application for minor debt against the estate, claiming unpaid rent, water charges and compensation for damage.
  2. [2]
    Veronik Verkest is Mr Verkest’s executor. She filed an application to dismiss the claim against the estate on two grounds: that Mr Smith’s attorney had no authority to sign the application; and that the application was not compliant with the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“RTRA Act”) or the QCAT Act. The tribunal dismissed Ms Verkest’s application.
  3. [3]
    Ms Verkest wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
  4. [4]
    Ms Verkest says the tribunal erred in fact and law in refusing to dismiss the claim.
  5. [5]
    The tribunal’s reasons for decision are brief. It found that the issue of whether Mr Smith’s attorney could act was “complex”. That is true, but it is not necessarily a reason not to deal with an application properly.
  6. [6]
    The tribunal did, however, acknowledge that Mr Smith did not, as required, refer the dispute to conciliation under s 416 of the RTRA Act. That section states that a lessor may only apply to the tribunal if he has first made a dispute resolution request about the issue.
  7. [7]
    Mr Smith, by his attorney Mr Yarwood, submitted that he did not need to comply with the RTRA Act because the claim, simply, was a debt. The tribunal has considered, and dismissed, a claim on a similar basis:[3]

Again, it is compelling that the RTRA Act is intended to be prescriptive and all-embracing in governing the procedure for determination of disputes arising under residential tenancies. It is, as discussed earlier, an enabling Act and its provisions and procedures will, if different from those to be applied by the Tribunal under the QCAT Act, prevail.

  1. [8]
    Mr Smith had not referred the dispute to conciliation as required. Therefore, the tribunal had no jurisdiction to hear the claim. The claim is, therefore, lacking in substance[4] and should have been dismissed. Further, any application should have been filed on a Form 2 and contained a copy of the tenancy agreement and the evidence on which the claim was based.
  1. [9]
    Leave to appeal is granted and the appeal is allowed. The decision of 4 December 2015 is set aside. The application to dismiss or strike out the application is granted. The application filed 27 August 2015 is dismissed.

Footnotes

[1]   QCAT Act s 142(3)(a)(i).

[2] Pickering v McArthur [2005] QCA 294 at [3].

[3] Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277 per A Wilson J at [42].

[4]  QCAT Act s 47(1)(c).

Close

Editorial Notes

  • Published Case Name:

    The Estate of Raphael Michel Verkest v Smith

  • Shortened Case Name:

    The Estate of Raphael Michel Verkest v Smith

  • MNC:

    [2016] QCATA 73

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe OAM

  • Date:

    20 May 2016

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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