LJ Hooker Robina v O'Neill - [2024] QCATA 80

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

LJ Hooker Robina and Anor v O’Neill and Anor [2024] QCATA 80

PARTIES:

LJ HOOKER ROBINA

(applicant/appellant)

JACQUELINE SIMONE MILNE

(applicant/appellant)

v

JOHN O’NEILL

(respondent)

MARK SMITH

(respondent)

APPLICATION NO/S:

APL055-23

ORIGINATING APPLICATION NO/S:

MCD 1262/22

MATTER TYPE:

Appeals

DELIVERED ON:

30 July 2024

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

1.     Leave to appeal is granted.

2.     Order 2 of the decision of the Tribunal dated 14 February 2023 is set aside.

3.     The application filed in the Tribunal on 28 November 2022 is dismissed.

4.     Leave to appeal in respect of the counter-claim filed 9 January 2023 is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – JURISDICTION – FRESH EVIDENCE – where respondent commenced a minor civil dispute proceeding claiming compensation under a tenancy agreement – where proceeding commenced before the parties engaged in conciliation – where tribunal’s jurisdiction derives from the enabling Act – where compliance with the requirements of the enabling Act to found jurisdiction – whether parties participated in the conciliation before proceedings commenced – whether jurisdiction conferred on the tribunal to determine the respondents’ claim for compensation – whether error of law – where applicants sought to lead fresh evidence – whether evidence available at the time of the primary hearing.

Queensland Civil and Administrative Tribunal Act2009, s 142(3)(a)(i)

Residential Tenancy and Rooming Accommodation Act 2008, s 415, s 416, s 424.

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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

On 22 March 2022 the appellants and the respondents entered into a tenancy agreement for a prestige residential property, on a canal, at Mermaid Waters on the Gold Coast. The tenancy was for a period of 12 months terminating on 23 March 2023. The rent was $1,350/wk with a rental bond of $5,400.00.
When the respondents moved into the tenancy, there were water damage issues with the ceilings in the spare room, laundry and garage. There was some discussion about this and the respondents were assured that they would be repaired by the owner. Further issues arose when the dishwasher broke down and its replacement protruded out from the bench and could not be safely pushed all the way back for fear of causing flooding from the pipes behind it. Other issues included: electrical faults with certain lights tripping out when turned on; the ceilings not getting repaired; a large hole in the runway to the jetty pontoon and carpet tearing on…

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 LJ Hooker Robina v O'Neill

Details

AGLC: LJ Hooker Robina v O'Neill [2024] QCATA 80
Case: [2024] QCATA 80
Decision Date: 30 July 2024

CaseChat Overview and Summary

LJ Hooker Robina was the appellant in a minor civil dispute proceeding against O'Neill, the respondent. The dispute arose from a tenancy agreement, and O'Neill claimed compensation from LJ Hooker Robina. The case was initially heard before the commencement of conciliation between the parties, as required by the enabling Act. The core issue before the court was whether the tribunal had the jurisdiction to determine O'Neill's claim for compensation, given that the conciliation had not yet occurred at the time the proceeding was commenced. Additionally, the court had to decide whether there had been an error of law and whether the applicants were permitted to introduce fresh evidence that was not available at the time of the primary hearing.

The court determined that the tribunal's jurisdiction was indeed derived from the enabling Act and that compliance with the Act's requirements was essential to establish that jurisdiction. The court found that since the parties had not participated in conciliation before the proceeding was initiated, the tribunal did not have the jurisdiction to decide on O'Neill's claim for compensation. Furthermore, the court held that there was no error of law, and the applicants were not allowed to lead fresh evidence that was not available at the time of the primary hearing. Consequently, the court granted leave to appeal, set aside a specific order of the tribunal, dismissed the application filed in the tribunal, and refused leave to appeal in respect of the counter-claim.

Orders

Orders of the court

1. Leave to appeal is granted.

2. Order 2 of the decision of the Tribunal dated 14 February 2023 is set aside.

3. The application filed in the Tribunal on 28 November 2022 is dismissed.

4. Leave to appeal in respect of the counter-claim filed 9 January 2023 is refused.

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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