Hughes v Fogarty - [2022] QCATA 190

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION

Hughes v Fogarty [2022] QCATA 190

PARTIES: MERRYN HUGHES

(applicant)

v

MARY ANN KARLA FOGARTY AND KERRY PARKER

(respondents)

APPLICATION NO:

APL128-21

ORIGINATING APPLICATION NO/S:

MCDT 1468/20

MATTER TYPE

Appeals

DELIVERED ON:

8 July 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

1.     Leave to appeal is granted.

2.     The appeal is allowed.

3.     The decision and orders made herein on 13 April 2021 are set aside.

4.     The proceedings are remitted to the registry for rehearing on a date to be fixed, by a different adjudicator.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – residential tenancy dispute – where order made for joinder of party and removal of another - where tenants vacated premises prior to expiry of lease – where lessor demanded and received rent to date of expiry – where tenants subsequently sought refund of that amount – whether lessor installed another occupant for the remainder of the lease – where primary judgment entered for tenants - where lessor seeks leave to appeal against that decision – where lessor alleges she was not served with amended primary application or date of second and definitive hearing – whether primary proceedings void for want of due process

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 42, s 142
Queensland Civil and Administrative Tribunal Rules 2009 Qld) R 35(3).
The Pot Man Pty Ltd v Reoch [2011] QCATA 318

Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69
Etherton v Public Service Board of NSW [1983] 3 NSWLR 297
Johnson v Miller (1937) 59 CLR 467
Haoucher v Minister of Immigration and Ethnic Affairs (1990) 169 CLR 648

APPEARANCES & REPRESENTATION:

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

INTRODUCTION

In this tenancy dispute Fogarty and Parker (`the tenants”) seek to recover $3,400, being rent paid to Hughes (`the lessor’) for 40 days after their premature departure from a unit at Main Beach (`the premises’).[1] This matter began as a residential tenancy dispute entitled Fogarty and Parker v Jamesimone Pty Ltd on 24 November 2020.
[1]Transcript of first hearing 3 February 2021 (`T 1’) page 4 line 27.
The tenants’ lease commenced on 21 August 2019 and was due to expire on 20 August 2020. It records Merryn Hughes[2] as the lessor, and James Hall, trading as The Waratah Main Beach Apartments as agent. Subsequently Hall retired as agent, to be replaced by an entity described in the original application[3] as Jamessimone Pty Ltd, of 22 Montgomery Avenue Main Beach.
[2]Misnamed in some documents as `Marryn” Hughes.
[3]Filed 24 November 2020
The tenants are citizens of New Zealand. They vacated the premises informally[4] on or about 11 July 2020[5], when amid the Covid emergency, New Zealand was about to close its borders.
[4]T 1 page 3 line…

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 Hughes v Fogarty

Details

AGLC: Hughes v Fogarty [2022] QCATA 190
Case: [2022] QCATA 190
Decision Date: 8 July 2022

CaseChat Overview and Summary

In the matter of Hughes v Fogarty, the dispute centred around a residential tenancy agreement and subsequent actions taken by both the lessor and the tenants. The case was heard and decided in the Civil and Administrative Tribunal of New South Wales. The tenants, the respondents, vacated the premises before the lease expired, and the lessor, the applicant, demanded and received the remaining rent. The tenants later sought a refund of the amount paid. They also alleged that the lessor had installed another occupant for the remainder of the lease term. The primary decision was entered in favour of the tenants, and the lessor sought leave to appeal against that decision.

The central legal issue before the court was whether the primary proceedings were void for want of due process, as the lessor claimed she was not served with an amended primary application or the date of the second and definitive hearing. The court was required to determine whether the lack of proper service rendered the primary proceedings invalid and, if so, whether this defect necessitated a rehearing of the matter.

In examining the issue, the court noted that the lessor's failure to receive proper notification of the amended application and the hearing date could indeed be considered a significant procedural defect. The court held that the primary proceedings were void for want of due process due to this deficiency. Consequently, the court granted the lessor leave to appeal and allowed the appeal. The decision and orders made on 13 April 2021 were set aside, and the proceedings were remitted to the registry for rehearing on a date to be fixed, by a different adjudicator.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The decision and orders made herein on 13 April 2021 are set aside.

4. The proceedings are remitted to the registry for rehearing on a date to be fixed, by a different adjudicator.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION	Hughes v Fogarty [2022] QCATA 190
PARTIES:	MERRYN HUGHES
(applicant)
v
MARY ANN KARLA FOGARTY AND KERRY PARKER
(respondents)
APPLICATION NO:	APL128-21
ORIGINATING APPLICATION NO/S:	MCDT 1468/20
MATTER TYPE	Appeals
DELIVERED ON:	8 July 2022
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Dr J R Forbes
ORDERS:	1. Leave to appeal is granted. 2. The appeal is allowed. 3. The decision and orders made herein on 13 April 2021 are set aside. 4. The proceedings are remitted to the registry for rehearing on a date to be fixed, by a different adjudicator.
CATCHWORDS:	APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – residential tenancy dispute – where order made for joinder of party and removal of another - where tenants vacated premises prior to expiry of lease – where lessor demanded and received rent to date of expiry – where tenants subsequently sought refund of that amount – whether lessor installed another occupant for the remainder of the lease – where primary judgment entered for tenants - where lessor seeks leave to appeal against that decision – where lessor alleges she was not served with amended primary application or date of second and definitive hearing – whether primary proceedings void for want of due process Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 42, s 142 Queensland Civil and Administrative Tribunal Rules 2009 Qld) R 35(3). The Pot Man Pty Ltd v Reoch [2011] QCATA 318 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 Etherton v Public Service Board of NSW [1983] 3 NSWLR 297 Johnson v Miller (1937) 59 CLR 467 Haoucher v Minister of Immigration and Ethnic Affairs (1990) 169 CLR 648
APPEARANCES & REPRESENTATION:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)