Hicks v Bell Estate Agents - [2021] QCAT 313

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hicks v Bell Estate Agents & Anor [2021] QCAT 313

PARTIES: ANDREW HICKS

(applicant)

v

BELL ESTATE AGENTS

(first respondent)

SHELLSTON HOLDINGS PTY LTD ACN 168 055 874 (second respondent)

APPLICATION NO/S:

MCDT 712/21

MATTER TYPE:

Residential tenancy matters

DELIVERED ON:

1 September 2021

HEARING DATE:

1 September 2021

HEARD AT:

Southport

DECISION OF:

Adjudicator Alan Walsh

ORDERS:

1. Application MCDT712/21 (Southport) is transferred to the Magistrates Court at Southport as the relevant Court having jurisdiction to determine the matter.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where applicant filed initiating application for residential tenancy dispute claiming bond refund and compensation for breach of residential tenancy agreement – where counterapplication filed – where tribunal gave directions for affidavit evidence and statement of agreed facts to narrow issues in dispute

PROCEDURE – CIVIL PROCEDURE IN STATE AND TERRITORY COURTS AND TRIBUNALS – JURISDICTION – where applicant applied to transfer proceedings to Magistrates Court of Queensland for hearing – where amended claim filed - where rent refund and compensation claims total $36,699.80 – where cross-application by owner against agent for indemnity – whether amended claim within jurisdiction subject to section 12(3) of QCAT Act – whether transfer order ought be ordered

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12, s 13, s 52

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 94, s 516

Avery & Ors v Pahwa & Anor [2018] QCATA 53

Champion & Anor v Laterma Pty Ltd & Ors [2018] QCAT 392
Gould v Mazheiko & Gill [2020] QCATA 10
Hough v Department of Housing and Public Works [2012] QCAT 579

North South Real Estate & Anor v Kavvadas [2017] QCAT 306

APPEARANCES & REPRESENTATION:

Applicant:

Ms R Purcell, OMB Solicitors

Respondent:

Ms J Sorbello, ALF Lawyers

Mr B Guo, Auslaw Partners

REASONS FOR DECISION

Solicitors for Shellston Holdings Pty Ltd have asked for reasons for the transfer of this matter to the Magistrates Court.
These non-urgent proceedings commenced in the Minor Civil Dispute residential tenancy jurisdiction of the Tribunal by Mr Hicks filing a Form 2 Application on 21 May 2021. Amongst other things, he claimed refund of his tenancy bond of $8,000, compensation of $17,697.23, and (originally) some amounts “TBA” for lessor’s breach of a residential tenancy agreement and re-imbursement of rent paid. There is some complexity to the facts and legal issues raised.
Shellston Holdings Pty Ltd (Shellston) is the owner of the rental property at Paradise Point on the Gold Coast which it leased to Mr Hicks. On 21 June 2021, it filed a counterapplication to Mr Hicks’ application and claims payment of outstanding rent and recovery of his bond. Shellston also claims indemnity from the (then) managing agent of the rental property, Bell Estate Agents, against any liability of Shellston to Mr Hicks attributable to the agents’ alleged negligence.
The parties earlier applied to be legally represented. An order for…

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.

Continue reading Hicks v Bell Estate Agents

Details

AGLC: Hicks v Bell Estate Agents [2021] QCAT 313
Case: [2021] QCAT 313
Decision Date

CaseChat Overview and Summary

The applicant, Mr Andrew Hicks, filed a claim for a bond refund and compensation for breach of a residential tenancy agreement against Bell Estate Agents, the managing agent of the property, and Shellston Holdings Pty Ltd, the owner of the property. Shellston also filed a counterapplication for payment of outstanding rent and recovery of the bond, and a cross-application against Bell Estate Agents for indemnity against any liability of Shellston to Mr Hicks attributable to the agents’ alleged negligence. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT) which has monetary jurisdiction to $25,000 in claims of this character. Mr Hicks later filed an amended claim with the Tribunal for $36,699.80 which exceeds the Tribunal’s monetary jurisdiction. He applied to transfer the proceeding to the Magistrates Court of Queensland for a hearing. The Tribunal made an order for a transfer of the proceeding to the Magistrates Court on 1 September 2021. The Tribunal held that it did not have jurisdiction to hear the matter because Mr Hicks’ amended claim for $36,699.80 exceeded the Tribunal’s monetary jurisdiction of $25,000. The Tribunal also held that the Magistrates Court had jurisdiction to hear the entire residential tenancy dispute, including the counter and cross applications. The Tribunal recommended that an Acting Senior Member make the transfer order. The order made is as follows.

The Tribunal transferred the matter to the Magistrates Court at Southport as the relevant Court having jurisdiction to determine the matter. The Tribunal found that it did not have jurisdiction to hear the matter because Mr Hicks’ amended claim for $36,699.80 exceeded the Tribunal’s monetary jurisdiction of $25,000. The Tribunal also found that the Magistrates Court had jurisdiction to hear the entire residential tenancy dispute, including the counter and cross applications. The Tribunal held that it was in the interests of justice to transfer the matter to the Magistrates Court to avoid a multiplicity of proceedings in different jurisdictions arising out of the same underlying facts and issues.

Orders