Capital & Harvest Pty Ltd v Bae - [2023] QCATA 94

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Capital & Harvest Pty Ltd v Bae & Anor [2023] QCATA 94

PARTIES:

CAPITAL & HARVEST PTY LTD

(applicant/appellant)

v

SEONG-SAN BAE

(first respondent)

And

CHARLOTTE MAREE WHITEHOUSE

(second respondent)

APPLICATION NO/S:

APL097-23

ORIGINATING APPLICATION NO/S:

MCDT 2496/22 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

10 July 2023

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

IT IS THE DECISION OF THE APPEAL TRIBNAL THAT:

1.     Leave to appeal granted.

2.     Appeal allowed.

3.     The decision of 9 March 2023 is set aside.

4.     The proceedings are remitted to the minor civil dispute jurisdiction for rehearing.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where application in a residential tenancy dispute was filed within seven days of notice of unresolved dispute – where tribunal erred in calculating dates due to a public holiday – where application dismissed – whether seven-day limit for bringing an application to claim the bond goes to jurisdiction

Acts Interpretation Act 1954 (Qld) s 14A, s 38
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 12, s 32

Residential Tenancies and Rooming Accomodation Act 2008 (Qld) s 5, s 136B, s 136C, s 136D, s 137, s 188, s 397, s 417, s 419, s 420, s 429

Cachia v Grech [2009] NSWCA 232

Define Property Agents v Sanderson [2021] QCATA 129
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Khromeenkova v PRD Robina Nationwide [2021] QCATA 35
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

Smolcic v Ray White Rockhampton [2021] QCATA 136

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

What is this application about?

On 4 October 2022 the applicants filed an application in a residential tenancy dispute (MCDT 2496/22) against their former tenants seeking orders that the respondents pay the applicants the sum of $6,744.70 as compensation for damages arising from the condition in which the applicants say the respondents vacated the tenancy when it ended.[1]
[1]Section 188 of the Residential Tenancies and Rooming Accomodation Act 2008 (Qld) (RTRAA).
At the time of the application, and when the matter was heard by the Tribunal on 9 March 2023, the Residential Tenancies Authority (RTA) held a bond for the tenancy in the sum of $2,240 which the applicants proposed be paid to them towards the claim amount.
For their part, the respondent tenants brought a counter-application filed 18 January 2023 denying any breach that would give rise to a compensation claim and seeking the return of their bond.
The parties had completed dispute resolution procedures before the RTA and filed a Notice of Unresolved…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] QCATA 94
Decision Date: 10 July 2023

CaseChat Overview and Summary

In the matter of Capital & Harvest Pty Ltd v Bae, the dispute arose in the context of a residential tenancy where the tenant, Bae, sought the return of her bond. The case was heard by the Civil and Administrative Tribunal of New South Wales, and subsequently appealed to the Appeal Tribunal. The appeal centred on the timeliness of the application and the calculation of the seven-day period within which Bae was required to lodge her application for the return of her bond.

The key legal issue before the Appeal Tribunal was whether the seven-day limit for lodging an application for the return of a bond constituted a jurisdictional error. The tribunal had previously dismissed Bae's application on the basis that it was not lodged within the required timeframe. Bae argued that the tribunal had erred in its calculation of the dates due to the inclusion of a public holiday, which should have extended the period within which she could file her application.

The Appeal Tribunal considered the nature of the seven-day period as a statutory requirement. It found that while the period was mandatory, it did not go to the tribunal's jurisdiction. Instead, it was a limitation period that, if not adhered to, would result in the application being dismissed. The tribunal concluded that the error in calculating the dates, which included a public holiday, meant that Bae's application was in fact timely. Consequently, the tribunal found that the original decision was flawed and set it aside.

The Appeal Tribunal allowed Bae's appeal and remitted the proceedings to the minor civil dispute jurisdiction for rehearing. This decision recognised the importance of accurately calculating statutory timeframes and the impact of public holidays on such periods.

Orders

Orders of the court

IT IS THE DECISION OF THE APPEAL TRIBNAL THAT:

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of 9 March 2023 is set aside.

4. The proceedings are remitted to the minor civil dispute jurisdiction for rehearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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