Johal v McDonald
[2012] QCATA 30
•20 February 2012
| CITATION: | Johal v McDonald [2012] QCATA 30 |
| PARTIES: | Sonvir Johal (Applicant/Appellant) |
| v | |
| Kristy McDonald (Respondent) |
| APPLICATION NUMBER: | APL358-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 20 February 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS: | Minor Civil Dispute – Tenancy matter – where applicant failed to attend the hearing – where applicant failed to apply for a reopening – appeal the decision made in default of appearance Queensland Civil and Administrative Tribunal Act2009, ss 137, 142 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Mr Johal and Mr Jawanda are the owners of a property at 256 Green Camp Road, Wakerly. The property was rented to Ms McDonald. At the conclusion of the tenancy, Ms McDonald alleged that she was owed $1,450.00 being an overpayment of rent, and was also entitled to a refund of the rental bond of $2,000.00.
To recover the overpayment of rent and the bond, she commenced an application in the minor civil dispute jurisdiction of the Tribunal on 9 September 2011. Both Ms McDonald and Mr Johal attended mediation but the matter was not resolved. Mr Johal knew that the next step was a hearing.
The application came on for hearing on 22 September 2011. Mr Johal did not appear. The Tribunal Member who heard the application was satisfied that he had been served with a copy of the application because Ms McDonald said she delivered it to his mail box. The notice of hearing was sent to his address at 873 London Road, Chandler.
Being satisfied as to service of the notice of hearing the learned Member decided to proceed to hear the application.
Ms McDonald produced a number of deposits to Mr Johal’s account and gave evidence which confirmed that the total amount deposited into his account was $35,450.00, which included the bond of $2,000.00. The evidence before the learned Member established that there was indeed an overpayment of $1,450.00, and she was entitled to the bond. An order was made accordingly.
Mr Johal has filed an application for leave to appeal or appeal. His main contention is the application for leave to appeal is that he did not receive notice of the hearing which was mailed to him and secondly, that he does not owe Ms McDonald any money and in fact she owes him money.
If Mr Johal’s had good reason for not attending the hearing, e.g. he did not receive the notice of hearing, that is a reopening ground for having the proceeding reopened.[1] He did not apply for a reopening and sought instead, to appeal the decision. As this is an appeal from a minor civil dispute that, leave to appeal is necessary.[2] Having regard to Mr Johal’s submissions, he is seeking to have the Appeal Tribunal consider the matter afresh. Included with his appeal submissions, is a copy of various documents which include the general tenancy agreement, notices to remedy breach, bank statements and receipts. He contends that from a calculation of those documents there is rental arrears of $1,407.14.
[1] QCAT Act, section 137(b).
[2] QCAT Act, section 142(3).
For Mr Johal to obtain the Appeal Tribunal’s leave to appeal, he must show that there is an error on the part of the original decision maker, or there is an error of law. 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?[3] Is there a reasonable prospect that the applicant will obtain substantive relief?[4] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[5] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[6]
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4] Cachia v Grech [2009] NSWCA 232 at 2.
[5] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6]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.
Mr Johal, other than his contention that he did not receive the Notice of Hearing has not identified any error in the process adopted by the learned Member. The learned Member satisfied himself about service of the Notice of Hearing and then when on to satisfy himself that there was sufficient evidence to prove the claim made.
[10] However, despite that I have checked the receipts produced by Ms McDonald. They in fact show that she has paid the amount of $35,450.00 over the 64 week period and therefore the overpayment of rent has been substantiated. She had satisfactorily proved her case to the learned Member. This evidence suggests that Mr Johal is unlikely to obtain substantive relief. There is here no question of general importance.
[11] Had Mr Johal applied for a reopening, and it was granted then he could then have put his evidence before the Tribunal and the merits of the case could have been determined. It is not function of the Appeal Tribunal to undertake this task.
[12] I am not satisfied that error has been established to warrant the grant of leave and the facts put before the learned Adjudicator were of sufficient probative value for him to make the decision that he did. Leave to appeal is refused.
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