Hawash v Anich
[2010] QCATA 124
•16 December 2010
| CITATION: | Hawash v Anich [2010] QCATA 124 |
| PARTIES: | Ghassan Hawash (Applicant/Appellant) |
| v | |
| Vladimir Anich (Respondent) |
APPLICATION NUMBER: APL161-10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President |
DELIVERED ON: 16 December 2010
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal refused
| CATCHWORDS : | MINOR CIVIL DISPUTE – where applicant became bankrupt before the final hearing –whether bankruptcy invalidated the decision. Bankruptcy Act (Cth) 1966, s 60 Cachia v Grech [2009] NSWCA 232, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
On 19 July 2010 a Magistrate in Cains made an order that Mr Hawash pay to Mr Anich the sum of $1,035.00 for arrears of rent in respect of rental premises at Flat 3, 167 Grafton St,. Cairns.
On 9 August 2010 Mr Hawash filed an application for leave to appeal or appeal in QCAT. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i).
The grounds of appeal are that, firstly, there was an agreement with Mr Anich that he would discount the weekly rent until Mr Hawash found another tenant with whom to share the flat and, secondly, Mr Hawash became a bankrupt on 4 June 2010, and because of that, he was “protected”. There is on the file a document “Notification of Bankruptcy – Debtors Petition” which confirms that Mr Hawash is in fact a bankrupt. There is also a letter on the file dated 23 June 2010 advising the registry of the bankruptcy.
The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at [13].
[3] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[4]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.
As such, my sole duty in considering this application for leave to appeal is to determine whether there is an error in the primary decision. It is not my task to decide where the truth lay as between the competing versions given by the parties.[5]
[5] Fox v Percy [2003] HCA 22 at [32] per Gleeson CJ, Gummow and Kirby JJ.
Mr Hawash did not appear at the original hearing to contest the case or present evidence that an agreement of the kind referred to in the application had been reached between himself and Mr Anich. The learned Magistrate made the order on the material before him and, presumably, from what he was told by Mr Anich. It is reasonable to assume that he was aware of the bankruptcy because of the documents on the file.
In respect of the factual matter that Mr Hawash now wishes to agitate, that is the agreement, the evidence he now seeks to rely upon was not presented to the Magistrate. It is not a matter of such importance that a substantial injustice would be caused if leave was not granted for him to now argue that case, either in the appeal or on a rehearing.
It can be inferred from his application that he contends that, by reason of his bankruptcy, the matter should not have proceeded to finality before the Magistrate. The submission is wrong: s 60 of the Bankruptcy Act does make provision for a stay of proceedings against a bankrupt, but only upon the application of a party or perhaps of the court’s own volition. Section 60 provides:
The Court may, at any time after the presentation of a petition, upon such terms and conditions as it thinks fit:
…………………..
(b) stay any legal process, whether civil or criminal and whether instituted before or after the commencement of this subsection, against the person or property of the debtor
As no stay had been granted by any Court, there was no impediment to the learned Magistrate moving to a final determination of the application before him. Now that Mr Hawash is bankrupt the judgment debt may not be immediately enforced in the usual way, but that is not material here.
No error has been demonstrated, and none is apparent, and leave to appeal is refused.
0