Love v Burleigh Lakes Real Estate
[2013] QCATA 92
•27 March 2013
| CITATION: | Love v Burleigh Lakes Real Estate [2013] QCATA 92 |
| PARTIES: | Mrs Amy Love (Applicant/Appellant) |
| V | |
| Burleigh Lakes Real Estate (Respondent) |
| APPLICATION NUMBER: | APL144 -12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 27 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 28 March 2012 is set aside. 4. The proceeding is remitted to the tribunal at Coolangatta for re-hearing. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – where no reasons for decision available – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 s121(1) 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
Mrs Love rented a home through Burleigh Lakes Real Estate in October 2011. In February 2012, she issued a notice to remedy breach and then a notice of intention to leave. She said that the home was unliveable because of mould that covered the home and contents. She filed an application in the tribunal claiming $13,569 for damage to her property. The tribunal terminated the tenancy agreement but did not accept Mrs Love’s claim for damages.
Mrs Love wants to appeal that decision. She says that the learned Adjudicator did not consider her evidence when he made the decision.
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.
The tribunal is unable to provide a transcript of the learned Adjudicator’s reasons for decision. That failure breaches the tribunal’s statutory requirement to give reasons[5] and is a denial of justice.[6] For that reason, leave to appeal should be granted.
[5] Queensland Civil and Administrative Tribunal Act 2009 s121(1)
[6] Edwards v Laraby Pty Ltd t/as Cruising Car Rental (No 2) [2010] QCAT 30
Both parties have filed new evidence about the cause of the mould. Because there is no transcript for the second part of the hearing, I cannot determine what the parties said about the evidence they presented at the hearing. Therefore, I am unable to determine whether the learned Adjudicator was in error.
The appeal is allowed and the decision of 28 March 2012 is set aside.
Unfortunately, the only sensible course is to return this dispute to the tribunal at Coolangatta for a re-hearing. The appeal tribunal will send the parties’ new evidence to the tribunal member who will determine the issue. If the parties want to file further material, they should do so as soon as possible and give copies to the other side.
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