Hessey-Tenny & Anor v Jones

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hessey-Tenny & Anor v Jones [2018] QCATA 131

PARTIES:

RICHARD HESSEY-TENNY
SADIE HESSEY-TENNY
(applicants/appellants)

v

HEATH JONES

(respondent)

APPLICATION NO/S:

APL094-18

ORIGINATING APPLICATION NO/S:

MCDT339/17

MATTER TYPE:

Appeals

DELIVERED ON:

20 September 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

ORDERS:

The application for a stay of the learned Magistrate’s decision of 4 April 2018 be refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where stay is sought to preserve the subject matter of the appeal – where the subject matter is payment from the applicant to the respondent – where submitted that refusal of the stay would render the applicant subject to enforcement proceedings – whether a stay can be granted when leave to appeal has not yet been granted

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

1. These are the reasons for my decision, made on 12 September 2018, that the applicants’ application for a stay pending appeal be refused.

2. The primary dispute between the parties arises out of the applicants’ tenancy from the landlord respondent of certain residential premises at Forest Glen.  The tenancy agreement commenced on 31 March 2017 and was due to end on 30 March 2018.

3. Prior to the expiration of the tenancy agreement, relations between the parties soured as a result of the applicants’ dissatisfaction with various aspects of the amenities in the property.  The applicants vacated the property before the nominated expiration date of the tenancy.

4. It appears on the material before me that the applicants and the respondent attempted unsuccessfully to agree to terms for the applicants’ early vacation of the premises. The applicants then made a “dispute resolution request” to the Residential Tenancies Authority (“RTA”) pursuant to s 402 of the Residential Tenancies and Rooming Accommodation Act 2008 (“RTRA”). The RTA then gave the parties notice under s 403(2) of the RTRA that the dispute was not suitable for conciliation. 

5. The applicants then commenced proceedings in the Tribunal in the form of a minor civil dispute against the respondent claiming, in effect, for the repayment of bond clean, certain costs and a claim for a 50 per cent reduction in rent already paid.  The total claimed by the applicants was $11,115.30. 

6. The respondent lodged a counter-application seeking loss of rent and various other costs, totalling $9,065. 

7. The matters came on for hearing on 7 March 2018 before a Magistrate sitting at Maroochydore.  On 4 April 2018, the Magistrate delivered the Tribunal’s decision together with written reasons.  The learned Magistrate:

   -rejected a preliminary point which had been argued to the effect that the Tribunal lacked jurisdiction because the conciliation process under the RTRA had not been completed;

   -rejected a preliminary argument that the respondent’s counter-application had been made…