Body Corporate for White Lanterns v Prouten

[2013] QCATA 290

CITATION: Body Corporate for White Lanterns v Prouten [2013] QCATA 290

PARTIES:	Body Corporate for White Lanterns CTS 21388 (Applicant)
v
Mr Neville Prouten (Respondent)

APPLICATION NUMBER: APL121 -13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM

DELIVERED ON: 29 October 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The application for leave to appeal/appeal filed 18 March 2013 is to be treated as an application to reopen the proceedings.

2.    The application to reopen is granted.

3.    The proceeding is referred back to the tribunal in its original jurisdiction to be heard before Adjudicator Davern

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where applicant did not attend hearing – where applicant did not apply for reopening – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(2)

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118

Chambers v Jobling (1986) 7 NSWLR 1

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

APPEARANCES and REPRESENTATION (if any):

The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Mr Prouten owned a unit in the White Lanterns unit complex. He did not pay his levies so, on 31 October 2011, the tribunal ordered that he pay the body corporate $9,926.30 by 1 February 2012. Mr Prouten sold his unit.  At settlement on 8 December 2011, Mr Prouten’s lawyers sent the body corporate a cheque for $13,494.

2. Mr Prouten filed a claim for the difference between the amount his lawyer paid and the amount of the tribunal order. The tribunal heard argument on 10 December 2011 then adjourned the hearing so that the body corporate could provide further information. The body corporate did not attend the resumed hearing on 18 February 2012. The tribunal ordered that the body corporate refund $3,567 to Mr Prouten.

3. The body corporate wants to appeal that decision. It says that it did not receive notice of the resumed hearing. It says that the learned Adjudicator misconceived the body corporate’s defence to the claim.

4. It is clear that the body corporate did not receive notice of the resumed hearing because of a registry error. The body corporate should have applied for a reopening under s 138 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). However, it has applied for leave to appeal.

5. The tribunal must act fairly and according to the substantial merits of the case[1]. The objects of the Act are not achieved if a party is denied the opportunity to argue its case because of registry error. The tribunal has the flexibility waive compliance with procedural requirements[2]. I therefore propose to treat the application for leave to appeal as an application for a reopening and grant the reopening.

   [1]            Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(2).

   [2] QCAT Act s 61.