Chateaux Property Management v Hannay & Swan

[2010] QCATA 106

CITATION: Chateaux Property Management v Hannay & Swan [2010] QCATA 106

APPELLANT:	Chateaux Property Management (Applicant/Appellant)
v
RESPONDENT:	Christopher Hannay and Julienne Swan (Respondents)

APPLICATION NUMBER:   APL196-10

MATTER TYPE: Appeals

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Justice Wilson, President

DELIVERED ON: 9 December 2010

DELIVERED AT:      Brisbane

ORDERS MADE: Application for leave to appeal refused

CATCHWORDS : 

RESIDENTIAL TENANCIES – BOND –  LEAVE TO APPEAL  – where appellants argue that the adjudicator erred in ordering them to repay the tenants – whether any error by adjudicator

Queensland Civil and Administrative Tribunal Act 2009, s 137, 139(5), 142(3)

APPEARANCES and REPRESENTATION:

By order of the Appeal Tribunal the application for leave to appeal (and appeal, if leave is granted) were directed to be determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. This is an application for leave to appeal a QCAT decision. It was filed in QCAT on 7 September 2010 by a Mr Gregory Swemmer on behalf of a company called CT Investments Pty Ltd, apparently trading as Chateaux Property Management.

1. The application shows the decision sought to be appealed was made by the Tribunal on 21 July 2010.

1. The only decision made by QCAT on that day was that of a QCAT Adjudicator refusing an application by Chateaux Property Management to reopen the decision of another QCAT Adjudicator, made after a hearing about a residential tenancies dispute on 5 May 2010. Under Chapter 2 Part 7 Division 7 of the QCAT Act a party may apply for a reopening if it can show that it did not appear at the hearing of the proceedings and had a reasonable excuse for not attending, or would suffer substantial injustice if the proceeding was not reopened because significant new evidence has arisen, and the evidence was not reasonably available when the proceeding was first heard and presided.

1. The application for a reopening brought by Chateaux Property Management does not address either of those issues. It records, as the grounds for reopening, that Chateaux Property Management was the subject of a QCAT judgement which should properly have been made against the landlords it represented.

1. Under s 139(5) the Tribunal’s decision on an application to reopen is final and cannot be challenged or appealed against or set aside. The provision is expressed in absolute terms and means an appeal here could never succeed, and leave to appeal should be therefore be refused.

1. Even it that were not the case, however, the history of the matter does not justify the granting of leave on any other grounds.

1. The original decision was, as already observed, made on 5 May 2010. An application for leave to appeal filed on 7 September was about three months out of time: QCAT Act, s 143(3).

1. Chateaux’s complaint is that it is the subject of an order to pay part of a rental bond to Mr Hannay and Ms Swan when it has already received the full bond from the Residential Tenancies Authority and paid it out to the landlords for whom it acted as agent. In its grounds of appeal here Chateaux says:

‘The order should have been made that the landlord (who have already been repaid the rental bond) be ordered to repay the rental bond to Hannay and Swan (the RTA authorised the refund of the rental bond to the landlord).’

1. As the transcript of the original proceedings before a QCAT Adjudicator at Southport Courthouse on 5 May 2010 shows, however, both Mr Hannay and a representative of Chateaux Property Management appeared and, on enquiry from the Adjudicator, Mr Hannay told her that the whole of the rental bond had already been disbursed to the agents. Ms McFarlane, who appeared on behalf of Chateaux , did not disagree or say anything to the effect that the bond had simply passed through the agents hands, and been paid to the landlord. Otherwise, the learned Adjudicator plainly gave the parties a fair hearing and gave immediate, coherent reasons for her decision which are, apparently, unchallenged.

1. The application to reopen was not filed by Chateaux until 1 June 2010 and, as previously discussed, correctly dealt with by another QCAT Adjudicator on 21 July 2010. 

1. All of the correspondence in the Minor Civil Disputes file shows that Chateaux Property Management was the landlord’s agent and, indeed, was a party to the dispute resolution process conducted by the RTA about the bond. Nothing in the materials suggest the tenants’ proceedings were out of time or that their conduct otherwise caused any prejudice to the agent. On its face the original decision was correct, and if the agent is embarrassed by the order which its own conduct allowed to be made, it obviously has recourse to recovery against its client, the landlords.

1. The application for leave to appeal is dismissed.