Daminato v Ingle and Ors

[2012] QCATA 233

CITATION: Daminato v Ingle and Ors [2012] QCATA 233

PARTIES:	Robert Brian Daminato (Applicant/Appellant)
v
Kylie Ingle Anthony Katsanevas Nick McSweeney (Respondents)

APPLICATION NUMBER: APL076-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 19 November 2012

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal refused.

CATCHWORDS:

Residential Tenancy – where claim for compensation – where compensation claim out of time – where applicant failed to attend hearing

Queensland Civil and Administrative Tribunal Act2009, s 142(3)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Daminato entered into a residential tenancy agreement with the respondents to rent a house at Pine Mountain Road on 13 August 2010.  He remained in the premises until the respondents decided to terminate the tenancy by giving a notice to leave requiring vacant possession on 16 August 2011. 

1. After vacating the premises Mr Daminato commenced a proceeding in the minor civil dispute jurisdiction of the Tribunal claiming compensation for a variety of items including emergency repairs, damage to property, excess he had to pay on an insurance claim, time off work and compensation for the pool not operating correctly.  The claim is more particularised in an appendix to the application which complains of broken security gates since February 2011, flooding of the property in the third week of the lease causing damage to private property; drinking of grey water for 10 months via the drinking water tap (separate to water tap in the sink) and using it in the dishwasher and washing machine.  There was also a contention that the entry inspection report was not correct. 

1. The matter initially came on for hearing before a Tribunal Adjudicator on 18 November 2011 but was adjourned essentially by agreement between the parties. On the further hearing date of 6 February 2012 Mr Daminato did not attend the Tribunal and an order was made in his absence that the application be dismissed. The Tribunal has power to deal with an application in the absence of the party under section 93 of the QCAT Act.

1. On 12 March 2012 Mr Daminato filed an application for leave to appeal or appeal.  In the grounds of appeal he sets out why he did not attend the hearing.  He was away from Brisbane between 6 February 2012 to 11 February 2012 and had not received notification of the hearing believing that the hearing was to be later in the month of February.  What he is asking the Appeal Tribunal to do is remit the matter back for adjudication by the original Tribunal based on the evidence he had produced to it and to the Appeal Tribunal.

1. The QCAT Act makes provision for reopening a proceeding if a party has a reasonable excuse for not attending the hearing or significant new evidence has arisen since the hearing that was not available at the time of the original hearing. However, Mr Daminato did not avail himself of the reopening provisions but rather he chose to appeal the decision. Unfortunately the Appeal Tribunal is not the appropriate forum to bring such an application in fact, the Appeal Tribunal’s powers are limited because before the substantive issues in the appeal can be considered leave to appeal must be granted[1] and that will only be done in certain circumstances.  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] QCAT Act, s 142(3).

1. The learned Adjudicator who dismissed the application was entitled to do so for a number of reasons firstly, because Mr Daminato did not attend the hearing and the QCAT Act makes specific provision to allow her to deal with the application in his absence. Secondly, Mr Daminato’s claim for compensation could not have succeeded in any event. Section 419 of the Residential Tenancies and Rooming Accommodation Act 2008 restricts an application for compensation for any breach of the residential tenancy agreement to within 6 months after the tenant becomes aware of the breach.  Mr Daminato commenced these proceedings in September 2011 and it is clear, on the face of the application that the breaches he complains of in the application occurred outside that 6 month limitation period.  In his submissions in support of the application for leave to appeal, it seems that the water connection to the rainwater tank (not grey water) had been that way since the commencement of the tenancy. 

1. In addition to these difficulties, the respondents have filed cogent evidence to dispute Mr Daminato’s complaints. 

1. It is not for the Appeal Tribunal to resolve factual disputes between the parties. For Mr Daminato to get leave to appeal he must identify some error on the part of the learned Member in making the decision she did to dismiss the application. She was well within her rights to do that and there is no basis for the Appeal Tribunal to interfere with that order. Mr Daminato’s proper remedy was to make application before the minor civil disputes Tribunal to have the proceeding reopened under section 138 of the QCAT Act.

1. In the circumstances leave to appeal must be refused.