Green v Hatchy Investments Pty Ltd - [2013] QCATA 274

CITATION:

Green v Hatchy Investments Pty Ltd [2013] QCATA 274

PARTIES:	Mr Martin John Green
v
Hatchy Investments Pty Ltd

APPLICATION NUMBER:

APL115-13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice A Wilson, President
Senior Member P Stilgoe, OAM

DELIVERED ON:

10 October 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of 7 January 2013 is set aside.

4. The application filed 2 October 2012 is dismissed.

CATCHWORDS:

MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where application for compensation – where no dispute resolution request to Residential Tenancies Authority – where no conciliation – where member conducted conciliation at hearing – whether grounds for leave to appeal

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 402, 416
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3(b), 4(b), 4(c)

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118

Chambers v Jobling (1986) 7 NSWLR 1

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277

APPEARANCES and REPRESENTATION (if any):

The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Mr Green was a tenant in a unit owned by Hatchy Investments Pty Ltd. The tenancy ended and Hatchy filed a claim for compensation. Mr Green filed an application to strike out Hatchy’s claim, because the parties had not attended conciliation as required by s 416 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). The learned Member told the parties[1] that he would conduct a conciliation, which would comply with the Act, and that he would proceed to a hearing if conciliation was unsuccessful.
[1] Transcript at 3:34.
The learned Member went off the record. The file then records that the learned Member ordered Mr Green pay Hatchy $1,285.
Mr Green wants to appeal that decision. He says that the Principal Registrar should not have accepted Hatchy’s application. He says that the learned Member had no jurisdiction to hear the dispute, and that he had no power to conduct conciliation that would comply with s 416. He says that the conciliation process did not comply with s 402 of the Act. He says that, if there was an agreement, it did not comply with s 408 of the Act. He says that, if the order was the learned Member’s decision, he did not consider s 362 of the Act.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted…

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.

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Details

Case: [2013] QCATA 274
Decision Date: 10 October 2013

CaseChat Overview and Summary

The matter before the court involved a dispute between Green and Hatchy Investments Pty Ltd, concerning compensation under a residential tenancy. The matter was heard in the Civil and Administrative Tribunal of New South Wales. Green, the tenant, sought compensation from Hatchy Investments, the landlord, after vacating the premises. The landlord contested the claim, and the matter proceeded to a hearing before a member of the Tribunal, who conducted conciliation during the hearing. However, no conciliation was achieved.

The primary legal issue before the court was whether the absence of a prior dispute resolution request to the Residential Tenancies Authority and the failure to conduct conciliation prior to the hearing constituted grounds for leave to appeal the decision of the Tribunal member. The court had to determine if these procedural irregularities were sufficient to warrant the granting of leave to appeal and whether they affected the fairness and correctness of the decision made by the Tribunal.

The court found that the procedural irregularities did indeed constitute grounds for leave to appeal. The absence of a prior dispute resolution request to the Residential Tenancies Authority, as required by law, was a significant procedural error. Additionally, the failure to conduct conciliation prior to the hearing also impacted the fairness of the process. The court held that these irregularities were substantial enough to warrant the granting of leave to appeal. Consequently, the appeal was allowed, the decision of 7 January 2013 was set aside, and the application filed on 2 October 2012 was dismissed.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of 7 January 2013 is set aside.

4. The application filed 2 October 2012 is dismissed.

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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