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Ray White Browns Plains v Sorenson[2019] QCATA 76

Ray White Browns Plains v Sorenson[2019] QCATA 76

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Ray White Browns Plains v Sorenson & Anor [2019] QCATA 76

PARTIES:

RAY WHITE BROWNS PLAINS

(appellant)

 

v

 

ANDRE SORENSON

(first respondent)

STEVIE-LEIGH SORENSON

(second respondent)

APPLICATION NO/S:

APL129-18

ORIGINATING APPLICATION NO/S:

MCDT61-18 (Beenleigh)

MATTER TYPE:

Appeals

DELIVERED ON:

3 June 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

  1. The matter is referred back to the Tribunal to decide whether the proceeding should be reopened.
  2. Notice of the referral back to the Tribunal be given to each party to the proceeding.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – where parties given notice to attend hearing – where a party attends late – where hearing of the matter proceed in the party’s absence – where judgment given against the absent party – whether the appeal is more appropriately able to be determined as a reopening application in the Tribunal below

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143A

Pickering v McArthur [2005] QCA 294

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. [1]
    The respondents rented a home at Boronia Heights. The appellant was the lessor’s agent. There was a written tenancy agreement which was due to expire on 19 January 2018. Prior to that date however, the respondents left.
  2. [2]
    The respondents filed an application in the Tribunal seeking recovery of their bond. The appellant maintained the respondents had broken the terms of the tenancy and claimed the bond (and possibly more though no counter application was filed).
  3. [3]
    The matter was listed for hearing before an Adjudicator at Beenleigh on 21 May 2018 at 11am. Notice to that effect was given to both parties.
  4. [4]
    The respondents attended on time. The appellant (its representative or representatives) came late. The matter commenced at 11am. It was heard in the absence of the appellant. The appellant thought the listed time was 11:30am. The appellant says the appellant arrived at Beenleigh Magistrates Court at 11:10am. The appellant waited to be called on. At approximately 12:30pm they were made aware the matter had been heard in their absence. They were told, apparently by Tribunal staff, to return at 2pm.
  5. [5]
    They returned at 2pm but the respondents were not there. They were told an order had been made that the bond be returned to the respondents and the appellant pay the respondents’ filing fee.
  6. [6]
    The appellant has filed an application for leave to appeal or appeal the decision made against them.
  7. [7]
    Given this is an appeal from a decision made in the Tribunal’s Minor Civil Dispute jurisdiction, the appellant must apply for leave to appeal before any appeal proceeds.[1]
  8. [8]
    The basic facts claimed by the appellant are not disputed by the respondents, although they say they did not see the appellant at the courthouse on the day. They say it was not hard to find the courtroom and the appellant should have been there on time.
  9. [9]
    They concede that they were advised that day at the court that a “rehearing” was scheduled for 2pm, however they were not available for that but were prepared to attend by phone. They were never telephoned however.
  10. [10]
    The appropriate course for the appellant to take when it was clear a decision had been made against the appellant was to apply to have the matter reopened. The appellant says when they attended before the Adjudicator they were advised to appeal. That seems doubtful given the more usual reopening process was clearly appropriate for them in the circumstances.
  11. [11]
    A reopening ground is defined in schedule 3 to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) to mean a party did not appear at the hearing of a proceeding and has a reasonable excuse for that.
  12. [12]
    By s 143A of the QCAT Act, if an application for leave to appeal or appeal is filed and the Appeal Tribunal considers the reasons for the application or appeal may constitute a reopening ground for the applicant or appellant in the proceeding to which the application or appeal relates, and the application or appeal could be more effectively or conveniently dealt with if it were taken to be an application for a reopening, the Appeal Tribunal may refer the matter to the Tribunal to decide the reopening.
  13. [13]
    I conclude the reasons given by the appellant for its failure to attend may constitute a reopening ground.
  14. [14]
    I conclude this matter is an appropriate matter to refer back to the Tribunal to decide whether the proceeding should be reopened. Given that conclusion, notice must be given of the referral back to the Tribunal to all parties to the proceeding.

Footnotes

[1]  QCAT Act, s 142(3)(a)(i).

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Editorial Notes

  • Published Case Name:

    Ray White Browns Plains v Andre Sorenson and Stevie-Leigh Sorenson

  • Shortened Case Name:

    Ray White Browns Plains v Sorenson

  • MNC:

    [2019] QCATA 76

  • Court:

    QCATA

  • Judge(s):

    Member Howe

  • Date:

    03 Jun 2019

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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