Du v Batra - [2017] QCATA 138

CITATION:	Du v Batra & Anor [2017] QCATA 138
PARTIES:	Binbin Du (Applicant/Appellant)
v
Kunal Batra Gurneet Batra (Respondents)
APPLICATION NUMBER:	APL208-17
MATTER TYPE:	Appeals
HEARING DATE:	22 November 2017
HEARD AT:	Brisbane
DECISION OF:	Senior Member Howard
DELIVERED ON:	22 November 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The application for leave to appeal and appeal is dismissed pursuant to section 48 of the *Queensland Civil and Administrative Tribunal Act* 2009(Qld).
CATCHWORDS:	PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – OTHER MATTERS – where an applicant in appeal proceedings failed to attend hearing – whether forgetting about the hearing is a reasonable excuse – whether applicant acted in a way that unnecessarily disadvantaged the respondents – whether proceeding should be dismissed Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48, s 93, s 142 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 164, s 165 Breezeway Developments Pty Ltd v ADG Cachia v Grech [2009] NSWCA 232 Hydraulics Pty Ltd [2010] QCATA 069 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
APPEARANCES:
APPLICANT:	No appearance
RESPONDENT:	Kunal Batra and Gurneet Batra

REASONS FOR DECISION

Binbin Du (Mr Du or the lessor) is the owner of a house previously rented to Kunal and Gurneet Batra (the Batras or the tenants). A Member of the Tribunal heard and decided cross-applications in the Tribunal’s minor civil dispute (MCD) jurisdiction made by Mr Du and the Batras following the ending of the tenancy.
The Batras’ claim against Mr Du was primarily for the costs of pool cleaning at the premises, consequent upon his alleged failure to appropriately maintain the property, and a further small amount in relation to water costs as a result of a water leak that had not been fixed by the lessor. Mr Du’s claim was for water charges, damage to the garage wall and monies allegedly owing in accordance with a special condition in the tenancy agreement relating to payments required to be made by the tenants to him (in addition to payment of all electricity charges) for the solar credits accruing as a result of the installation of solar power.
A Tribunal Member made orders requiring that Mr Du pay Mr and Mrs Batra the sum of $150.00 by 9 July 2017. Mr Du applied for leave to appeal the decision.

Mr Du’s application for leave to appeal and appeal

The application for leave to appeal is made in essence on the following bases:
1.The Tribunal erred in refusing the lessor’s claim for compensation for damage without referring to the relevant legislative provisions, and despite the tenants’ admission of fault;
2.The Tribunal erred in denying the lessor’s claim for compensation with respect to the solar credit arrangement agreed between the parties; and
3.The Tribunal erred in denying the claim that any unpaid past, present or future water bills should be shared equally between the parties and making a decision prejudicial to his interests.

Events at the hearing of the application for leave to…

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 Du v Batra

Details

AGLC: Du v Batra [2017] QCATA 138
Case: [2017] QCATA 138
Decision Date: 22 November 2017

CaseChat Overview and Summary

In the matter of Du v Batra, the Queensland Court of Appeal considered the procedural consequences of the applicant's non-attendance at a scheduled hearing in the appeal proceedings. The applicant had failed to appear at the hearing, citing forgetfulness as the reason for their absence. The court was required to determine whether this constituted a reasonable excuse under the relevant procedural rules and whether the applicant's actions had unnecessarily disadvantaged the respondents.

The court examined the circumstances leading to the applicant's absence and the potential impact on the proceedings. It considered the applicant's explanation of forgetting about the hearing and assessed whether such an excuse could be deemed reasonable. Furthermore, the court evaluated whether the applicant's failure to attend had caused undue hardship or disadvantage to the respondents, potentially warranting severe procedural consequences.

The court found that the applicant's excuse of forgetfulness was not reasonable, as it failed to demonstrate any mitigating circumstances or extraordinary reasons that could excuse their absence. The court also concluded that the applicant's actions had unnecessarily disadvantaged the respondents, as they were forced to proceed without the applicant's participation. Consequently, the court exercised its discretion under section 48 of the Queensland Civil and Administrative Tribunal Act 2009 and dismissed the application for leave to appeal and the appeal itself.

The dismissal of the appeal and application for leave to appeal was the final outcome of the case, reflecting the court's stringent approach to procedural requirements and the necessity of participants fulfilling their obligations in judicial proceedings.

Orders

Orders of the court

1. The application for leave to appeal and appeal is dismissed pursuant to section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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