QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Hughes v Fogarty & Anor [2024] QCATA 21
PARTIES:
MERRYN HUGHES (applicant/appellant)
v
MARY ANN FOGARTY (first respondent)
and
KERRY PARKER
(second respondent)
APPLICATION NO/S:
APL030-24
ORIGINATING APPLICATION NO/S:
MCDT1468/20 (Southport)
MATTER TYPE:
Appeals
DELIVERED ON:
27 February 2024
HEARD AT:
Brisbane
DECISION OF:
Member Lember
ORDERS:
1. Time for filing the application for leave to appeal or appeal the decision made in MCDT1468/20 on 5 December 2023 is extended to 24 January 2024.
2. Leave to appeal the decision of 5 December 2023 is granted.
3. Appeal allowed.
4. The decision made in MCDT1468/20 on 5 December 2023 is set aside.
5. The Principal Registrar is requested to refund to the applicant the fee paid on the application for leave to appeal or appeal filed 24 January 2024.
6. The Principal Registrar is directed to:
(a) serve a copy of the application in a residential tenancy dispute (MCDT1468/20) upon Merryn Hughes within seven (7) days; and
(b) have the application in a residential tenancy dispute (MCDT1468/20) listed for rehearing in the Southport Registry as soon as practicable, but allowing at least thirty (30) days after the application in a residential tenancy dispute (MCDT1468/20) is served upon Merryn Hughes.
CATCHWORDS:
APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – residential tenancy dispute – where primary judgment entered for tenants in absence of lessor – where lessor not served with the application in a residential tenancy dispute – where primary proceedings void for want of due process – where on rehearing primary judgment was again entered in the absence of the lessor where the lessor had still not been served with the application – where second decision on rehearing void for want of due process
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 4, s 13, s 32, s 61, s 93, s 143
Body Corporate for No 9 Port Douglas Road v McEvoy [2011] QCATA 292
Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69
Cachia v Grech [2009] NSWCA 232
Crime and Misconduct Commission v Chapman [2011] QCAT 229
Etherton v Public Service Board of NSW [1983] 3 NSWLR 297
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Haoucher v Minister of Immigration and Ethnic Affairs (1990) 169 CLR 648 at 660-666
Hughes v Fogarty [2022] QCATA 190
Johnson v Miller (1937) 59 CLR 467
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
The Pot Man Pty Ltd v Reoch [2011] QCATA 318
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
What is the application about?
Twice now, a residential tenancy dispute has been decided in the minor civil disputes ‘MCD’) jurisdiction in the absence of the respondent lessor, in…
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- Case
- [2024] QCATA 21
- Decision Date
CaseChat Overview and Summary
The legal issues before the court centred on the validity of the primary judgment and the rehearing, both of which were conducted without the applicant being served. The court had to determine whether the failure to serve the application rendered the proceedings void and if the rehearing, where the applicant was again absent, was similarly flawed. Additionally, the court needed to consider whether the applicant had a valid reason for not being served and if the application for leave to appeal was made within a reasonable time.
The court found that the primary judgment was indeed void due to the lack of service on the applicant, and the rehearing was also void for the same reason. Despite the applicant's absence, the court acknowledged the procedural error and granted the application for leave to appeal. The appeal was subsequently allowed, and the decision of 5 December 2023 was set aside. The court also ordered the refund of the application fee to the applicant and directed the Principal Registrar to serve the application on the landlord and to list the matter for rehearing once the application had been served.
In conclusion, the court's decision highlighted the importance of ensuring all parties are served in residential tenancy disputes to maintain the integrity of the proceedings. The court ordered a rehearing of the matter, with proper service to the landlord, and set aside the previous decisions due to the procedural errors.
Orders
Orders of the court
1. Time for filing the application for leave to appeal or appeal the decision made in MCDT1468/20 on 5 December 2023 is extended to 24 January 2024.
2. Leave to appeal the decision of 5 December 2023 is granted.
3. Appeal allowed.
4. The decision made in MCDT1468/20 on 5 December 2023 is set aside.
5. The Principal Registrar is requested to refund to the applicant the fee paid on the application for leave to appeal or appeal filed 24 January 2024.
6. The Principal Registrar is directed to:
(a) serve a copy of the application in a residential tenancy dispute (MCDT1468/20) upon Merryn Hughes within seven (7) days; and
(b) have the application in a residential tenancy dispute (MCDT1468/20) listed for rehearing in the Southport Registry as soon as practicable, but allowing at least thirty (30) days after the application in a residential tenancy dispute (MCDT1468/20) is served upon Merryn Hughes.
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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