Beasley v Diggles

[2013] QCATA 71

CITATION: Beasley v Diggles [2013] QCATA 71

PARTIES:	Dathan Beasley (Appellant)
v
Diane Marie Diggles (Respondent)

APPLICATION NUMBER: APL254-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Mr. Richard Oliver, Senior Member
Mr. David Paratz, Member

DELIVERED ON: 8 March 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1. Leave to Appeal is refused.

CATCHWORDS:

APPEAL - Residential tenancy – tenant issued notice to remedy breach - application by lessor to dismiss notice by tenant – underlying issues considered in another application – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009 s.47

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 (QCAT Act).

REASONS FOR DECISION

Mr Oliver, Senior Member

1. In this matter the Appeal Tribunal consisted of Mr. Paratz, QCAT Member, and me. I have had the benefit of reading his reasons in draft. I agree with his reasons, and his conclusions, and the order he proposes.

Mr. Paratz, Member

1. This is appeal APL254-12. It is related to another appeal in this Tribunal, APL247-12.

1. Both appeals relate to Applications arising from the tenancy of a townhouse at Drane Street, Clayfield, Brisbane, and an incident that occurred on 14 November 2010.

1. In Appeal APL247-12, the Lessor was seeking leave to appeal the decision of an Adjudicator on application 3403/10 to order compensation for the loss of use of a cooktop. That appeal has been considered, and in a separate decision, leave to appeal has been refused.

1. This appeal is from application 062/11 which was filed by Dathan Beasley as Lessor, and sought to have the tenants notice to remedy breach set aside.

1. Both application 3403/10 and 062/11 were heard together. In the transcript of the hearing of 9 March 2012 the learned Adjudicator made the following comments at page 5 of the transcript:-

Just one further point. I notice that subsequently the entity Ray White Ascot did file an application 62 of 11. On the last occasion the matter came before me the tribunal it doesn’t seem to be recorded in any particular order sent out to the parties but certainly the Adjudicator on the last occasion made it clear that application 62 of 11 was to be heard with this application today. That’s an application by the agent that the breach, as the agent put it, that is the breach of the applicant here today be remedied by the applicant. That consequentially must fail obviously. It will simply be endorsed application dismissed. Do you understand that?

1. The application had been filed naming Dathan Beasley as the Applicant care of Ray White Ascot. I note however that one Notice in the matter named Ray White Ascot as the Applicant, and that an application for reopening in the same matter named Dathan Beasley and Lisa Lister-Browne as Applicants.

1. The learned Adjudicator went on to briefly discuss application 062/11 and made the following comments also at page 5 of the transcript:-

It was a bit convoluted and frankly it was a bit hard to follow but it seems to say that the tenants notice does not allege any breach of an actual term.

1. I agree with the comment of the learned Adjudicator, and his obvious frustration as to this application. The application is convoluted and confusing, and does not have any probative value. The Lessor has taken a legalistic and technical approach which does not appear to be well-founded.

1. If an application had been made to strike out the application as being misconceived or lacking in substance under Section 47 of the Queensland Civil and Administrative Tribunal Act 2009, I would have thought it would have been considered seriously and have had a good chance of success.

1. The substantive issues have been considered in application 3403/10 and appeal APL247-12. This application is grounded in the same issues. There is no value in discussing whether an issue as to the Notice of Breach by the tenant (which is irrelevant to the claim for compensation in any event) was proper, when the Adjudicator has found, and the Appeal Tribunal has not disturbed, a finding that the tenant is entitled to compensation quite apart from the Notice to remedy breach.

1. Because this is an appeal from a decision of the Tribunal in its Minor Civil Dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. There is no question of general importance that should be determined by the Appeals Tribunal in this matter; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.