Jenwen Pty Ltd t/as LJ Hooker Jimboomba v Englebrecht
[2013] QCATA 334
•26 November 2013
| CITATION: | Jenwen Pty Ltd t/as LJ Hooker Jimboomba v Englebrecht & Anor [2013] QCATA 334 |
| PARTIES: | Jenwen Pty Ltd t/as LJ Hooker Jimboomba (Applicant) |
| v | |
| Mr Sebastine Englebrecht Mrs Gail Englebrecht (Respondents) |
| APPLICATION NUMBER: | APL383 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 26 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where application to terminate for excessive hardship – where lessor claim for compensation – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr and Mrs Englebrecht were tenants in a house managed by Jenwen Pty Ltd. Mrs Englebrecht lost her job. She had to find another job within 28 days as a condition of her visa, so that she could stay in Australia. She found another job in Mudgee so applied to the tribunal to terminate the tenancy agreement on the grounds of excessive hardship. The tribunal granted the application.
Jenwen wants to appeal that decision. It says the decision was unjust and unfair. It says that the learned Member made a decision without giving the agent, Ms Calhoun, an adequate opportunity to fully present a response.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. 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 caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals 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 2.
[3]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[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.
It is not enough to file an application for leave to appeal simply saying that a decision is unfair and unjust. An applicant must point to an error by the tribunal that created the unfair or unjust decision. Jenwen has failed to do this. It is not for the appeal tribunal to go looking for an error because of a vague allegation from a dissatisfied party.
Ms Englebrecht’s evidence runs for just over one page of transcript[5]. Ms Calhoun’s evidence runs for just under one page[6]. There is no substance to the submission that Ms Calhoun was not given an opportunity to present her case.
[5]Transcript page 1-3, line 39 to page 1-5, line 6.
[6]Transcript page 1-5, line 11 to page 1-6, line 5.
It is apparent from the transcript that Jenwen did not understand the nature of the Englebrecht’s application. It was an application for termination for excessive hardship. As the learned Member explained[7], it was not an application for compensation. The learned Member had no jurisdiction to consider any claim for compensation.
[7]Transcript page 1-6, lines 16 – 19.
It is also apparent that Jenwen still does not understand the nature of the application. In its application for leave to appeal, Jenwen refers the appeal tribunal to issues of compensation and says, ‘The owners are happy for the rent arrears and repair costs to be paid…’ If Jenwen wants to claim compensation from the Englebrechts, it should follow the requirements of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) and then make the necessary application. Jenwen cannot circumvent these requirements by filing an appeal against a termination order.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Member was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
0