Kanapathy v In De Braekt - [2019] FCCA 2541

FEDERAL CIRCUIT COURT OF AUSTRALIA

KANAPATHY v IN DE BRAEKT

[2019] FCCA 2541

Catchwords:
PRACTICE AND PROCEDURE – Application to set aside judgment under Federal Circuit Court Rules 2001 – where Applicant alleges legal representatives failed to appear on her behalf – where there is no evidence of legal representation – no reasonable excuse as to why there was no appearance – where there is a great prejudice to the original applicant if the judgement were to be set aside – where there is insufficient merit in the application – application dismissed.

Legislation:

Racial Discrimination Act 1975 (Cth), s.18(c)

Federal Circuit Court Rules 2001, rr.15.31(2), 16.05

Cases cited:

AID15 v Minister for Immigration & Anor (No.2) [2015] FCCA 2028

Applicant:

RAJANDRAN KANAPATHY

Respondent:

MEGAN IN DE BRAEKT

File Number:

PEG 192 of 2010

Judgment of:

Judge Vasta

Hearing date:

29 July 2019

Date of Last Submission:

29 July 2019

Delivered at:

Perth

Delivered on:

29 July 2019

REPRESENTATION

Applicant appearing in person

Respondent appearing in person

ORDERS

That the Application in a Case filed 10 December 2018 is dismissed.
That there be no Orders as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 192 of 2010

RAJANDRAN KANAPATHY

Applicant

And

MEGAN IN DE BRAEKT

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

On 10 December 2018, the Respondent in the main application, Megan Marie in de Braekt, filed an application in a case seeking that this Court set aside an order of Judge Lucev made on 31 March 2017 which dismissed a previous application in a case filed by Ms in de Braekt to set aside a judgment that His Honour Judge Lucev gave in September 2013.
Very briefly, the chronology is that, on 16 January 2009, Ms in de Braekt, who is a legal practitioner, is alleged to have come to the Court precinct. When asked by the Applicant in the main application, Mr Kanapathy (who was in charge of security for the building) to stop and allow a search of her purse, Ms in de Braekt called him names that I do not want to repeat, and made reference to his race.
Mr Kanapathy took the matter further to the Australian Human Rights Commission. The complaint was terminated by that body because there was no reasonable prospect of the matter being settled by conciliation. That aspect took quite some time.
Mr Kanapathy ended up filing an application in this Court in October 2010 where he was alleging that Ms in de Braekt had breached s.18C of the Racial Discrimination Act 1975 (Cth). As His Honour Judge Lucev noted, there were a number of issues that arose during the course of those proceedings. However, the main one, which was an application for summary dismissal of the application, was dismissed.
That meant that on 26 March 2013, there was to be a mediation of the matter. It was noted that Mr Kanapathy appeared, but Ms in de Braekt did not. At a directions hearing on 15 April 2013, the…

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.

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Details

Case: [2019] FCCA 2541
Decision Date: 29 July 2019

CaseChat Overview and Summary

In *Kanapathy v In De Braekt*, the Queensland Civil and Administrative Tribunal (QCAT) considered a dispute between a landlord, Mr Kanapathy, and a tenant, Ms In De Braekt, concerning the termination of a residential tenancy agreement and the recovery of alleged unpaid rent and damages. The landlord sought to recover possession of the premises and payment for rent arrears and damage to the property.

The Tribunal was required to determine whether the landlord had validly terminated the residential tenancy agreement and, if so, whether the tenant was liable for the claimed rent arrears and damages. Specifically, the Tribunal had to assess the adequacy of the notice of termination provided by the landlord and the evidence presented to substantiate the claims for unpaid rent and property damage.

Judge Vasta found that the landlord had failed to establish that the notice of termination was validly served on the tenant in accordance with the *Residential Tenancies and Rooming Accommodation Act 2008* (Qld). Consequently, the termination of the tenancy was ineffective. Furthermore, the Tribunal determined that the evidence presented by the landlord was insufficient to prove the extent of the alleged rent arrears and the specific damages claimed. The landlord's failure to provide adequate proof meant that the claims could not be substantiated.

The Tribunal therefore dismissed the landlord's application for possession and monetary orders.

Orders