Gorohova v Rangecrest Admin & Bookkeeping Pty Ltd t/as the Real Estate People

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gorohova v Rangecrest Admin & Bookkeeping Pty Ltd t/as The Real Estate People [2023] QCATA 100

PARTIES:

HANNAH GOROHOVA

(applicant)

v

RANGECREST ADMIN & BOOKKEEPING PTY LTD T/AS THE REAL ESTATE PEOPLE

(respondent)

APPLICATION NO/S:

APL227-22

ORIGINATING APPLICATION NO/S:

MCDT122/22 (Toowoomba)

MATTER TYPE:

Appeals

DELIVERED ON:

16 May 2023 (ex tempore)

HEARING DATES:

15 May 2023; 16 May 2023

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D Reid

ORDERS:

1. Pursuant to section 143A(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), I order that the matter be referred to the Magistrates Court at Toowoomba, exercising its QCAT jurisdiction, to decide if the proceeding ought to be reopened.

2.     Direct that notice of this referral, and of the reasons, are given to:

(a)     each party to the proceeding;

(b)     Ms Melissa Cross at c/o TASC, PO Box 594, Toowoomba 4350;

(c)     the Magistrates Court at Toowoomba.

CATCHWORDS:

PROCEDURE – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – REFERRAL OF PROCEEDINGS WITHIN TRIBUNAL TO CONSIDER REOPENING – where the tribunal at first instance determined a tenancy dispute in the absence of the applicant – where the applicant tendered medical certificates to explain her absence – whether the circumstances justified the appeal tribunal’s intervention

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143A

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

R Burton, Principal of the respondent; C Flynn, Property Manager of the respondent

REASONS FOR DECISION

This is an application for leave to appeal from a decision of a magistrate sitting in QCAT on 6 July 2022. The learned Magistrate entered judgment against Ms Gorohova in a tenancy dispute when she failed to appear at the hearing. It was ordered that Ms Gorohova pay Rangecrest Admin and Bookkeeping Pty Ltd trading as the Real Estate People the sum of $1,822.59.
Ms Gorohova had rented a house at 199 Campbell Street, Newtown in Toowoomba for six years. The rental agreement was extended a number of times but, on 10 January 2022, she was given notice to leave. She was required to vacate by 28 March 2022.
A dispute arose about whether Ms Gorohova had cared for the property appropriately and whether she was liable for the cost of putting the premises into a state of reasonable repair. There was also some alleged indebtedness in relation to water charges and back rental.
There are a number of unusual features of the case.
On the day of the hearing Ms Gorohova did not attend and the learned Magistrate proceeded to enter judgment in her absence.
Whilst Ms Gorohova did not attend, she had sent a medical certificate to the Tribunal which the Magistrate had read. Ms Gorohova had not provided it to the agent but Christina Flynn, who represented the agent, was shown it in Court.
As is common with medical certificates, it lacked significant detail. It appears to be from Ms Gorohova’s GP and was dated 4 July 2022, so seems clearly to have been prepared for the Court hearing two days later. It says:
Ms Hanna Gorohova has been hospitalised on 02/06/2022 due to lung disease and will be unfit for normal duties from 04/07/22 to 25/07/22 inclusive.
One does not know from the certificate what illness Ms Gorohova had or how sick she was at the time of the hearing on 6 July. It is probably, however, reasonable to conclude that if she was then unfit for normal duties, she may well have had significant difficulty preparing and presenting a case in QCAT about her tenancy.
The learned Magistrate appears from the transcript to have attempted to have Ms Gorohova contacted prior to the matter being heard. She says in her judgment:
There was no ability to speak to her, so I have proceeded in her absence. I am not satisfied that the medical certificate sets out sufficiently enough information for me to accept that as a reason for non-attendance.
In the transcript it appears the Magistrate in fact had a clerk try to call Ms Gorohova “this morning” but was unable to make contact. I note that no other attempt was made to contact Ms Gorohova during the hearing of the court proceedings themselves or to contact her GP to ascertain the extent of her illness.
I note also that there seems to have been no evidence of any prior non-attendance by Ms Gorohova during the course of the matter.
The learned Magistrate then proceeded to determine the matter in her absence. In arriving at the judgment sum of $1,822.59, the learned Magistrate:
(a)determined that a claim for the cost of damage to the bedroom carpet in the sum of $1,400 should be allowed only in the sum of $700. The transcript reveals no proper factual basis for determining that that was the proper loss, and it seems in my view to have been an arbitrary decision to moderate the claim a little without regard to whether it was in fact claimable at all, or what was the proper sum to be allowed;
(b)determined that claims for $775 for a yard clean and $1,265 for a house clean, described as a bond clean, should also be reduced arbitrarily to figures of $387.50 and $422 respectively. There appears to have been no finding about the state of the house at the commencement of the tenancy or whether damage may have been due to permissible wear and tear.
There was so far as I can see no proper factual findings about these matters.
In short, it is my view that there was a strongly arguable case, in determining whether or not leave to appeal ought to be granted, that the judgment contains significant errors. An applicant must generally provide a basis for its grant directed to there being arguable error and also to there being substantial injustice arising from that error.
It is often the case also that the application for leave to appeal and the appeal are conducted together since the arguments on the appeal against the determination of those two central issues have many common features.
In the course of this case, I had significant concern about whether or not there was substantial injustice in circumstances where a sum of only $1,822 was involved and where it appears from the material Ms Gorohova accepted some liability, at least in respect of water rates.
In the course of reading material filed from her, I came across an email of 27 April 2022 from the respondent to the applicant advising her that her personal details had been lodged on a tenancy database, TICA Data Solutions Pty Ltd. The notice to the applicant said the lodgment would remain there for three years, unless the claimed sum was paid. In the email the respondent advised the applicant “this letter will show up on your records every time you apply for a property. The only way to get removal from TICA is to pay your debt.” The amount said to be due was $3,525.59.
In that circumstance the judgment has significantly greater importance it seems to me than the mere sum of $1,822.59. The finding might effectively preclude Ms Gorohova from being able to rent accommodation.
In the circumstances, I indicated that I would probably be prepared to allow the application for leave to appeal to the representatives for The Real Estate People when they were before me.
I should also say that during the course of the hearing it became clear that Ms Gorohova had in fact contacted an advocacy group in Toowoomba, and had there spoken with a woman who she identified as Melissa Cross. On the first day of the hearing before me, the Tribunal had the hearing support officer contact the advocacy group, described as TASC, but was advised that that was Melissa Cross’s day off. Ms Gorohova indicated to me in the course of the hearing that Melissa Cross was to represent her in this matter. Ms Flynn indicated that they knew Ms Cross, but had no contact from her in relation to this matter.
In the circumstances I determined to adjourn the matter to the following day, gave all of the parties leave to appear by telephone, and indicated that Melissa Cross should also be asked to attend by telephone so I could ascertain whether or not she was to act for Ms Gorohova.
The following day when the matter was called on, Ms Cross was contacted. She told the Tribunal that she had had contact with Ms Gorohova on a number of occasions and that, when she had seen her most recently on the Wednesday prior to the Tribunal hearing she had observed that she had fairly observable facial injuries. Ms Gorohova told Ms Cross, as she told me, that she had been assaulted and admitted to hospital. Moreover, Ms Cross indicated that she would be prepared to act for Ms Gorohova in this matter.
In circumstances where I had indicated that it was my preliminary view that Ms Gorohova may have a strong case in support of an application for leave to appeal, I had discussions with Ms Gorohova and with Ms Flynn, and with Ms Cross, about the appropriate way to proceed. In my view the provisions of s 143A of the Queensland Civil and Administrative Tribunal Act 2009 are apposite. Subsection 1 provides that that section applies if an application for leave to appeal is filed under s 143 and the Tribunal considers that the reasons for the application may constitute a reopening ground for the applicant in the proceedings to which the application relates. The requirement of s 143A is that the application for leave to appeal could be more effectively or conveniently dealt with it were taken to be an application under Pt 7, Div 7 of the Act for a proceeding to be reopened. That division deals with reopening.
In my view this is a case that is more appropriately dealt with as a reopening. Indeed, in the course of submissions before me, Ms Gorohova indicated to me that this was a reopening and not an appeal. I do not accept that to be the case, since the application for a reopening ought originally to have been made to the Magistrates Court to explain her absence from the hearing on 6 July.
Nevertheless, having regard to the provisions of s 143A(1), it is my view that that section applies and furthermore, pursuant to subsection 2 of that section, I am empowered to refer the matter to the Tribunal to decide whether the proceeding should be reopened. In my view this is the appropriate remedy. In my view it is appropriate that the matter be referred to the learned Magistrate who determined the matter so that her Honour can determine whether or not to reopen the proceedings. In doing so, it seems likely she will have the benefit of submissions on behalf of Ms Gorohova from Ms Cross. No doubt an explanation for her failure to appear on that day will be given. A more fulsome report might perhaps be obtained from the general practitioner in support of her non-attendance. In that circumstance, it is likely that the Magistrate will then proceed to determine the matter afresh, having regard to the evidence in the case. I say that having regard to the observations I have made about the inadequacy of the evidentiary basis for the allowances the learned Magistrate made at the initial hearing.
An alternative course is that Ms Cross on the one hand and Ms Flynn and Ms Burton on the other may be able to satisfactorily resolve the matter.

Orders

In the circumstances, the orders I make are set out at the commencement of these written reasons.

[2023] QCATA 100

16 May 2023 (ex tempore)