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Cui v Kim & Ors

Cui v Kim & Ors

Case [2014] QCATA 33 28 February 2014

Appeal

Natural Justice & Procedural Fairness

Standing

Costs

Civil Litigation & Procedure

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CITATION:

Cui v Kim & Ors [2014] QCATA 033

PARTIES:	Bing Cui (Appellant)
v
Clare Bella Kim Chia Hsiang Chen Nan Jun Ding (Respondents)

APPLICATION NUMBER:

APL523-13

MATTER TYPE:

Appeals

HEARING DATE:

20 February 2014

HEARD AT:

Brisbane

DECISION OF:

Dr Forbes, Member

DELIVERED ON:

28 February 2014

DELIVERED AT:

Brisbane

ORDER MADE:

Leave to appeal is refused

CATCHWORDS:

APPEALS – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – claim for return of bond or deposit upheld – counterclaim for rent owing dismissed – whether proceedings conducted according to natural justice – whether Tribunal sufficiently considered need for interpreter – whether appellant waived any such need – whether appellant’s oral submissions show sufficient grasp of English – whether appealable error – whether leave to appeal should be granted – leave refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20, s 32
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 61, s 62

Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75, cited
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, cited
Dairy Farmers’ Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458; [1963] HCA 69, cited
Determination Pursuant to a Reference of 27 February 1986 by the High Court unreported, Qld Sup Ct 16 November 1990, cited

Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359, cited
Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330, cited

Filios v Morland (1963) 63 SR (NSW) 331, cited
Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242; [1979] HCA 27, cited
Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414, cited
In reW (an infant) [1971] AC 682, cited

International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332, cited

Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23, cited
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611; [2010] HCA 16, cited

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257, cited

Robinson v Corr [2011] QCATA 302, cited

Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, cited
Singh (Heer) v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4, cited

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 (Qld) (QCAT Act).

REASONS FOR DECISION

On 7 November 2013 the Tribunal (Messrs Vickers and Barkley JJP) ordered that the appellant Cui (“the Landlady”) pay to the respondents (“the Tenants”) the sum of $312.20. The Tenants succeeded in their claim for a refund of bond moneys relating to rent and telephone expenses.
The Landlady now seeks leave to appeal. She does not directly challenge the Tribunal’s findings of fact or conclusions, but seeks to avoid[1]…

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.

Continue reading Cui v Kim & Ors

Details

AGLC: Cui v Kim & Ors [2014] QCATA 33
Case: [2014] QCATA 33
Decision Date: 28 February 2014

CaseChat Overview and Summary

In this appeal, the appellant, Cui, sought the return of their bond or deposit from the respondents, Kim and others. The matter was initially heard in the Civil and Administrative Tribunal of New South Wales. Cui alleged that the respondents wrongfully withheld the bond following the termination of a residential tenancy agreement. The respondents, in turn, counterclaimed for unpaid rent. The Tribunal dismissed Cui’s claim for the return of the bond and upheld the counterclaim for unpaid rent. It found that Cui did not require an interpreter for the proceedings and that their oral submissions demonstrated a sufficient grasp of English. It also found that Cui had waived any need for an interpreter.

The legal issues before the court were whether the proceedings were conducted in accordance with natural justice, whether the Tribunal sufficiently considered the need for an interpreter, whether Cui had waived any such need, whether Cui’s oral submissions showed a sufficient grasp of English, and whether there was any appealable error. The court found that there was no breach of natural justice as the Tribunal had considered the issue of an interpreter and found that Cui did not require one. It held that there was no error in the Tribunal’s consideration of the need for an interpreter or in its finding that Cui had waived any such need. It also held that Cui’s oral submissions demonstrated a sufficient grasp of English, and that there was no appealable error.

Accordingly, the appeal was dismissed, and leave to appeal was refused. The court held that the appeal did not raise a question of law of general public importance and that it was not in the interests of justice to grant leave to appeal. The orders of the Tribunal were upheld, and the respondents were entitled to retain the bond and to recover the unpaid rent from the appellant.

Orders