Evans v Cao
[2011] QCATA 220
•12 August 2011
| CITATION: | Evans v Cao and Anor [2011] QCATA 220 |
| PARTIES: | Simon Evans (Applicant/Appellant) |
| v | |
| Yan Cao Tiffany Yu (Respondents) |
| APPLICATION NUMBER: | APL225-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 12 August 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is dismissed. |
| CATCHWORDS: | Minor Civil Dispute – where applicant failed to attend the hearing – where application for leave to appeal is in the nature of a reopening – no error identified Queensland Civil and Administrative Tribunal Act2009, ss 138, 142(3) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr Evans was a tenant in a unit in Kaija Street, Mount Gravatt East. Mr Cao was the lessor. Ms Yu was a co tenant in the premises. The lessor also resided in the premises.
On 8 September 2010 Ms Cao filed an application for minor civil dispute – residential tenancy dispute in the Tribunal seeking an order that the Residential Tenancy Agreement between herself and Mr Evans be terminated on the basis that he had engaged in objectionable behaviour. The application was duly served and came on for hearing in the Tribunal on 20 September 2010. Mr Evans did not attend the hearing. The learned Tribunal Member heard from Ms Cao who gave evidence at the hearing. Upon the learned Member being satisfied that Mr Evans did in fact engage in the behaviour complained of, made a termination order and further that arrears of rent in the sum of $4,556.85 be paid by Mr Evans.
From that decision, Mr Evans has filed an application for leave to appeal or appeal. The grounds of appeal set out in the application are somewhat confusing and do not attempt to identify any error on the part of the learned Member in coming to the decision that he did. There is a challenge to some evidence given in the proceeding by Ms Cao in that Mr Evans disputes that he engaged in the behaviour complained of. If he wished to challenge these facts he should have either attended the hearing, or applied to reopen the proceeding if he had a reasonable excuse for not attending.[1]
[1] QCAT Act, section 138.
As this is an appeal from a minor civil dispute leave of the Tribunal is necessary.[2]
[2] QCAT Act, section 142(3).
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?
Mr Evans has vacated the premises. He does not identify any error on the part of the Tribunal Member in coming to the decision to make the termination order. He has attempted to use the appeal process to dispute facts and agitate matters that he could have done at the hearing. As no error of law has been identified, nor is any apparent leave to appeal must be dismissed.
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