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Harcourts Rental Management Solutions v Vio[2020] QCATA 56

Harcourts Rental Management Solutions v Vio[2020] QCATA 56

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Harcourts Rental Management Solutions & Anor v Vio & Anor [2020] QCATA 56

PARTIES:

HARCOURTS RENTAL MANAGEMENT SOLUTIONS

(first applicant\appellant)

Christina Lowe

(second applicant\appellant)

v

CAROLINA VIO

(first respondent)

PATRICK CARMON

(second respondent)

APPLICATION NO/S:

APL206-19

ORIGINATING

APPLICATION NO/S:

MCDT140/19 (Pine Rivers)

MATTER TYPE:

Appeals

DELIVERED ON:

23 April 2020

HEARING DATE:

6 March 2020

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

Application for leave to appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – INTERLOCUTORY APPLICATION – APPLICATION FOR AND EXTENSION OF TIME – where applicant failed to attend the original hearing of the residential tenancy dispute – where  application for leave to appeal or appeal sought a re-heating – whether grounds for leave to appeal – whether the primary decision was open on the evidence before the  of the original decision maker – where no error of law identified – where no grounds to grant leave to appeal.

Queensland Civil and Administrative Tribunal Act 142(3)(a)(i)

Terera & Anor v Clifford [2017] QCA 181;

Pickering v McArthur [2005] QCA 294, [3].

Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39.

APPEARANCES &

REPRESENTATION:

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]
    On 23 April 2019 Harcourts Rental Management Solutions (the Applicant) filed an Application for a Minor Civil Dispute – Residential Tenancy Dispute in the Tribunal claiming a total of $2,293.61 from the respondents who were the tenants of premises at North Lakes in Brisbane. There was a rental bond of $2,340 lodged with the Residential Tenancy Authority. In the application, the applicant set out the particulars of the claim being:

 Carpet cleaning - $100;

 Rent arrears - $500

 Flyscreen replacement - $176

 Gardening - $280

 Plumbing repairs - $121

  1. [2]
    The basis for the rental arrears claim was particularised in the application as follows:

Upon being issued a Notice to Leave expiring 13 January 2019, the tenant failed to vacate the home. The lessor kindly gave an additional weeks extension however the tenants again did not vacate. Upon submitting an application to QCAT, the tenants vacated on 25.02.2019 just prior to the QCAT hearing being held. The tenant paid up to including 07.02.2019 however ceased all payments from then.

  1. [3]
    The application came on for hearing in the Tribunal on 30 July 2019 but the applicant failed to attend the hearing. The learned Adjudicator satisfied herself from the file that Notice of Hearing had been given the applicant notice and then proceeded to hear the application.
  2. [4]
    The respondents were represented by Ms Vio in person who then put forward the respondents’ position with respect to the claims made by the applicant. She made concessions about monies claimed in the application which included the cost of replacement of flyscreens, gardening and water charges totalling $722.95.
  3. [5]
    During the course of the hearing, Ms Vio was expressly asked by the learned Adjudicator whether or not there were any rent arrears payable, to which she replied there was not. The learned Adjudicator referred to the material filed and noted that there was no rental ledger on the file to indicate any arrears rent up to the end of February 2019. The only reference to rental, from the material before her, is that which appears in the application where it refers to an October ledger. During the course of the hearing learned adjudicator said:

But what I am warning you is, I can make these orders today, but it doesn’t mean that Harcourts won’t come and will be another hearing, and they may establish that you do owe them all that rent, and then you’ll have to pay it.

  1. [6]
    Because of the lack of any evidence to support the claim for rental arrears, the only conclusion open to her was to accept the evidence of Ms Vio and make orders that the tenant should recover $1,617.05 and the landlord be paid $722.95.
  2. [7]
    Subsequent to the hearing of the application the applicant filed an application for leave to appeal or appeal. The application seeks orders that the Respondents pay outstanding rental arrears of $1,177.11. The grounds of appeal are that:

We are seeking an appeal based on the rent arrears as per the claim being heard.

  1. [8]
    The applicant seems to be proceeding on the basis that this application for leave to appeal or appeal is just a reconsideration/re-hearing of the original application that was before the learned Adjudicator.
  2. [9]
    However, an appeal from an MCD is not as of right. Section 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act (“QCAT Act”) provides that an appeal against the decision can only be made if the party has obtained the appeal tribunal’s leave to appeal.
  3. [10]
    Leave to appeal will usually only be granted when there is a reasonable argument that the decision was attended by error, and an appeal is necessary to correct a substantial injustice caused by the error. [1] An application for leave to appeal and, if successful, the appeal is not simply an opportunity to reiterate the arguments made at the hearing in the hope of obtaining a different outcome.[2] The appellant must identify an error and consequent substantial injustice that must be corrected on appeal.
  4. [11]
    The ground of appeal is not that, on the evidence before her, the learned Adjudicator came to the wrong result but because the applicant failed to attend the original hearing because of a mix up of dates and therefore did not present its whole case. It does seem clear in this case that the question of arrears of rent was ventilated before the Tribunal however, as the Applicant failed to attend the learned Adjudicator proceeded to hear and determine the matter on the evidence before her as she was entitled to do. She considered the particulars of the rental arrears but this was referenced to an October ledger which did not seem to have any relevance to the actual claim made then or now.
  1. [12]
    The QCAT Act makes provision for when parties have a good reason for not attending a tribunal hearing. It is because of the failure to attend that this issue arose for the applicant. The proper recourse was to file an application for a reopening under Part 7, Division 7 of the QCAT Act. A reopening ground referred to in s.138 of the QCAT Act includes, under the definition in Schedule 3, that a party did not appear at the proceeding and had a reasonable excusive for not attending. Another reopening ground is that either party would suffer a substantial injustice if the proceeding was reopened.
  2. [13]
    On the material that was before the original Tribunal, there is no obvious error of law and the orders made reflected the matters the Tribunal considered on the evidence before it. There is no basis upon which leave to appeal could be granted and therefore the application for leave to appeal must be refused.

Footnotes

[1] Terera & Anor v Clifford [2017] QCA 181; Pickering v McArthur [2005] QCA 294, [3].

[2] Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39.

Close

Editorial Notes

  • Published Case Name:

    Harcourts Rental Management Solutions & Lowe v Vio & Carmon

  • Shortened Case Name:

    Harcourts Rental Management Solutions v Vio

  • MNC:

    [2020] QCATA 56

  • Court:

    QCATA

  • Judge(s):

    Member Richard Oliver

  • Date:

    23 Apr 2020

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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