Kda v Rong He as trustee - [2023] QCATA 5

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

KDA v Rong He as trustee & Anor [2023] QCATA 5

PARTIES: kda

(appellant)

v

rong he as trustee for ning family trust and michael wheatley

(respondent)

APPLICATION NO/S:

APL114-21 and APL115-21

MATTER TYPE:

Appeals

DELIVERED ON:

25 January 2023

HEARING DATE:

15 December 2022

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:
1.   Leave to appeal is granted.

2.   MCDT 89 of 2021 and MCDT 117 or 2021 are remitted to the minor civil disputes jurisdiction of the tribunal for hearing.

IT IS DIRECTED THAT:

1.   MCDDT 89 of 2021 and MCDT 117 of 2021 (“the applications”) be listed for hearing at the Southport Magistrates Court for a 2-hour hearing on a date to be advised to the parties but not before 28 February 2023.

2.   The applications to be listed for hearing before an adjudicator other than Adjudicator Walsh.

3.   The respondent is at liberty to attend the further hearing in person or remotely by telephone or video conference.

4.   This decision is to be delivered to the parties by email at the current email address held by the tribunal.

5.   The parties must exchange current email address, if different to those held by the tribunal, within 10 days of the receipt of this decision.

6.   The applicant must file and give to the respondent by email any further material she intends to rely at the hearing of the applications within 14 days of the receipt of this decision.

7.   The respondent must give to the applicant by email any further material he intends to rely on within 14 days of the receipt of any further submissions by the applicant.

8.   Subject to any further direction of the tribunal the hearing of the applications will be limited to the material already filed by the parties and any further material filed in accordance with this direction.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – PROCEDURAL FAIRNESS – RESIDENTIAL TENANCY – where applicant filed applications claiming compensation and rent relief – where applications listed for final hearing – where applicant served a quantity of material on the respondent the evening before the hearing – where applicant failed to attend the commencement of the hearing but subsequently appeared – where applications dismissed on the grounds of causing the respondent a disadvantage – whether the applicant was denied procedural fairness – whether the applicant given an opportunity to be heard on the proposed dismissal – whether any disadvantage could have been cured by an adjournment of the proceeding – whether error of law – whether exercise of discretion to dismiss miscarried

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 142(3)(a)(i)

Terera & Anor v Clifford [2017] QCA 181

House v R (1936) 55 CLR 499

Sasip Pty ltd v Ashe and Anor [2021] QCAT 99

Du v Batra & Anor [2017] QCATA 138

Tracey v Olinderidge Pty Ltd & Wagner [2015]…

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 Kda v Rong He as trustee

Details

AGLC: Kda v Rong He as trustee [2023] QCATA 5
Case: [2023] QCATA 5
Decision Date: 25 January 2023

CaseChat Overview and Summary

The applicant, Kda, filed applications against Rong He as trustee for compensation and rent relief. These applications were dismissed by the Magistrates Court of Queensland. Kda appealed the dismissal, claiming that she was denied procedural fairness because she was not given an opportunity to be heard before the dismissal. The appeal was heard by the Queensland Civil and Administrative Tribunal (QCAT).

The central legal issues in the appeal were whether the applicant was denied procedural fairness by the dismissal of her applications and if the disadvantage caused by the applicant's late service of material could have been cured by an adjournment. The court also considered whether the exercise of the tribunal's discretion to dismiss miscarried due to an error of law.

The tribunal found that the dismissal of the applications was not an error of law and that the applicant was given a reasonable opportunity to be heard. However, the tribunal also found that the disadvantage caused by the applicant's late service of material could have been cured by an adjournment. The tribunal concluded that the exercise of the tribunal's discretion to dismiss miscarried due to this error. The appeal was allowed, and the applications were remitted to the tribunal for a new hearing.

The orders of the tribunal were that leave to appeal was granted, and the applications were remitted to the minor civil disputes jurisdiction of the tribunal for hearing. The applications were to be listed for a two-hour hearing at the Southport Magistrates Court. The respondent was at liberty to attend the hearing in person or remotely by telephone or video conference. The applicant and respondent were required to exchange their current email addresses with the tribunal and any further material they intended to rely on at the hearing of the applications. The hearing of the applications would be limited to the material already filed by the parties and any further material filed in accordance with the tribunal's direction.

Orders

Orders of the court

1. Leave to appeal is granted.

2. MCDT 89 of 2021 and MCDT 117 or 2021 are remitted to the minor civil disputes jurisdiction of the tribunal for hearing.

IT IS DIRECTED THAT:

1. MCDDT 89 of 2021 and MCDT 117 of 2021 (“the applications”) be listed for hearing at the Southport Magistrates Court for a 2-hour hearing on a date to be advised to the parties but not before 28 February 2023.

2. The applications to be listed for hearing before an adjudicator other than Adjudicator Walsh.

3. The respondent is at liberty to attend the further hearing in person or remotely by telephone or video conference.

4. This decision is to be delivered to the parties by email at the current email address held by the tribunal.

5. The parties must exchange current email address, if different to those held by the tribunal, within 10 days of the receipt of this decision.

6. The applicant must file and give to the respondent by email any further material she intends to rely at the hearing of the applications within 14 days of the receipt of this decision.

7. The respondent must give to the applicant by email any further material he intends to rely on within 14 days of the receipt of any further submissions by the applicant.

8. Subject to any further direction of the tribunal the hearing of the applications will be limited to the material already filed by the parties and any further material filed in accordance with this direction.

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:	KDA v Rong He as trustee & Anor [2023] QCATA 5
PARTIES:	kda
(appellant)
v
rong he as trustee for ning family trust and michael wheatley
(respondent)
APPLICATION NO/S:	APL114-21 and APL115-21
MATTER TYPE:	Appeals
DELIVERED ON:	25 January 2023
HEARING DATE:	15 December 2022
HEARD AT:	Brisbane
DECISION OF:	Member Richard Oliver
ORDERS:	1. Leave to appeal is granted. 2. MCDT 89 of 2021 and MCDT 117 or 2021 are remitted to the minor civil disputes jurisdiction of the tribunal for hearing. IT IS DIRECTED THAT: 1. MCDDT 89 of 2021 and MCDT 117 of 2021 (“the applications”) be listed for hearing at the Southport Magistrates Court for a 2-hour hearing on a date to be advised to the parties but not before 28 February 2023. 2. The applications to be listed for hearing before an adjudicator other than Adjudicator Walsh. 3. The respondent is at liberty to attend the further hearing in person or remotely by telephone or video conference. 4. This decision is to be delivered to the parties by email at the current email address held by the tribunal. 5. The parties must exchange current email address, if different to those held by the tribunal, within 10 days of the receipt of this decision. 6. The applicant must file and give to the respondent by email any further material she intends to rely at the hearing of the applications within 14 days of the receipt of this decision. 7. The respondent must give to the applicant by email any further material he intends to rely on within 14 days of the receipt of any further submissions by the applicant. 8. Subject to any further direction of the tribunal the hearing of the applications will be limited to the material already filed by the parties and any further material filed in accordance with this direction.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – PROCEDURAL FAIRNESS – RESIDENTIAL TENANCY – where applicant filed applications claiming compensation and rent relief – where applications listed for final hearing – where applicant served a quantity of material on the respondent the evening before the hearing – where applicant failed to attend the commencement of the hearing but subsequently appeared – where applications dismissed on the grounds of causing the respondent a disadvantage – whether the applicant was denied procedural fairness – whether the applicant given an opportunity to be heard on the proposed dismissal – whether any disadvantage could have been cured by an adjournment of the proceeding – whether error of law – whether exercise of discretion to dismiss miscarried Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 142(3)(a)(i) Terera & Anor v Clifford [2017] QCA 181 House v R (1936) 55 CLR 499 Sasip Pty ltd v Ashe and Anor [2021] QCAT 99 Du v Batra & Anor [2017] QCATA 138 Tracey v Olinderidge Pty Ltd & Wagner [2015]…