Gibson v Bordeaux Red Pty Ltd t/a Elders Coomera

[2010] QCATA 72

CITATION: Gibson v Bordeaux Red Pty Ltd t/a Elders Coomera  [2010] QCATA 72

PARTIES:	Kellie Jacinta Gibson (Applicant)
v
Bordeaux Red Pty Ltd t/a Elders Coomera (Respondent)

APPLICATION NUMBER:            APL094-10               

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON:   8 November 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Application for leave to appeal refused         

CATCHWORDS : 

PROCEDURE – LEAVE TO APPEAL – RELIEF FROM PROCEDURAL REQUIREMENTS – where adjudicator ordered tenant to pay arrears in rent and compensation for cleaning expenses – where tenant seeks leave to appeal the decision – where tenant has applied outside the prescribed time period – where the tenant did not apply for extension of time or provide reasons for delay – whether time limit for application for leave to appeal should be extended

Queensland Civil and Administrative Tribunal Act 2009, ss 61, 142(3)

REASONS FOR DECISION

[1]      Ms Kellie Jacinta Gibson was a tenant in premises located on Anna Drive in Raceview managed, on behalf of the owners, by Bordeaux Red Pty Ltd t/a Elders Coomera. Ms Gibson has now vacated the premises.

[2]      Elders Coomera commenced proceedings in QCAT seeking compensation for arrears of rent and cleaning expenses in the amount of $4,349.45.

[3]      The matter was heard by a QCAT adjudicator on 27 January 2010. Mr Peter O’Donnell, a Property Manager, appeared for Elders Coomera. Both parties gave oral evidence on oath and tendered documents.

[4]      On the evidence before him the learned adjudicator found that Ms Gibson was in arrears with her rent and liable for some cleaning and repair expenses, and calculated the total amount owing to be $2,508.57. He ordered that the Residential Tenancy Authority pay out the $1300 bond to the owners in part satisfaction of the claim and that Ms Gibson pay off the remaining balance by weekly instalments, capped at $40.00 per week.

[5]      In an unusual turn of events, Ms Gibson commenced new proceedings on 21 April 2010 by way of an attempt to reopen the same case. The adjudicator, aware of the fact that the matter had already been determined, dismissed the application and properly informed Ms Gibson that the appropriate course of action to challenge the decision was to seek leave to appeal.

[6]      On 19 May 2010 Ms Gibson filed an application for leave to appeal. Leave is necessary for a decision from a minor civil dispute proceeding: Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s142(3)(a)(i).

[7]      Ms Gibson alleges that the decision was not just or equitable because the adjudicator gave excess weight to the evidence of the agents. She also claims to have significant new evidence, not previously available, but has not provided any details about it.

[8]      Ms Gibson’s first problem is that her application was filed well outside the prescribed 28 day period to seek leave to appeal a primary decision of the Tribunal[1]. QCAT has the discretion to extend the time limit to lodge an application, in appropriate circumstances[2]. Ms Gibson did not file an application for an extension of time; nor did she provide any reason for the considerable delay in bringing her application. There being nothing otherwise to explain or excuse the delay, any application to extend time ought to be refused.

[1] QCAT Act, s 143(3)

[2] QCAT Act, s 61(3)

[9]      Even if an extension was granted she would still need to satisfy the usual tests for granting leave to appeal. The transcript of proceedings and the decision show that the learned adjudicator carefully weighed and examined the evidence touching the factual disputes between the parties, and nothing in Ms Gibson’s submissions suggests those findings were made without sufficient evidence, or against the weight of evidence, or were plainly unjust.  No appellable error of any kind is, then, apparent.

1. Nor is there any question of general importance upon which further argument, and a decision of the appellate tribunal, would be to the public advantage[3]. The application is refused.

   [3]        Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk   Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.