Lovel v Uribe - [2013] QCATA 347

CITATION:

Lovel v Uribe [2013] QCATA 347

PARTIES:	James Lovel (Applicant/Appellant)
v
Juan Uribe (Respondent)

APPLICATION NUMBER:

APL289 -13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

3 December 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for an oral hearing is refused.

2. The application for leave to appeal granted.

3. The Appeal is allowed.

4. The decision of 8 July 2013 is set aside.

5. The notice to leave dated 23 May 2013 is set aside.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where notice to leave without grounds – where period of notice one day short of time required – whether tribunal had power to waive compliance with notice period

PROCEDURE – where application for oral hearing of application for leave to appeal – whether appropriate to consider application for leave to appeal on the papers

Queensland Civil and Administrative Tribunal Act 2009 ss 4(c), 32(2)
Residential Tenancies and Rooming Accommodation Act 2008 s 349

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Lowe v Aspley [2010] QCATA 59

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

Mr Lovel filed an application to set aside a notice to leave without grounds. An Adjudicator dismissed his application. Mr Lovel has filed an application for leave to appeal that decision.

Request for an oral hearing

The tribunal normally deals with applications for leave to appeal minor civil dispute decisions on the papers. Mr Lovel wanted an oral hearing. He submitted that Mr Uribe’s submissions were extensive and were prepared by a lawyer and that would give him an unfair advantage. He says that Mr Uribe has filed fresh evidence and that procedural fairness requires that he have an opportunity to address the tribunal about that fresh evidence.
There is nothing in the Queensland Civil and Administrative Tribunal Act 2009 that prevents a party engaging a lawyer to assist in drafting submissions or preparing material for the tribunal. That, in itself, is not a reason to grant an oral hearing.
Mr Lovel’s submissions are thorough and well written. Mr Uribe’s lawyers submit that Mr Lovel has a degree in law, as has his sister and co-tenant. Mr Lovel is at no disadvantage in the quality of his written submissions.
The tribunal may conduct a hearing entirely on the basis of documents.[1] The tribunal has an obligation to ensure proceedings are conducted in a way that is as quick as is consistent with achieving justice.[2] The tribunal has limited resources and there is some delay in dates for oral hearings. I am confident that the issues are sufficiently identified so that I can make a decision on the papers without the need for an oral hearing. I am also confident that this is a quick, cost…

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 Lovel v Uribe

Details

AGLC: Lovel v Uribe [2013] QCATA 347
Case: [2013] QCATA 347
Decision Date: 3 December 2013

CaseChat Overview and Summary

In the case of Lovel v Uribe, the dispute before the court involved a minor civil matter regarding the validity of a notice to leave served by the landlord to the tenant. The case was heard in the Supreme Court of the relevant jurisdiction, where the tenant, Lovel, sought to challenge the notice served by Uribe, the landlord. The central issue before the court was whether the tribunal had the power to waive compliance with the statutory notice period, given that the notice to leave was one day short of the required period. The tenant argued that the notice was invalid due to this technicality, and the landlord contended that the tribunal's decision should be upheld.

The legal issues that the court was required to decide included whether the tribunal had the authority to waive compliance with the statutory notice period under the applicable legislation and whether the court should grant leave to appeal based on the arguments presented. The court needed to consider the statutory framework governing the notice to leave, the discretion of the tribunal in enforcing the notice period, and the principles of judicial review applicable to decisions made by tribunals.

In its reasoning, the court examined the statutory provisions and found that the tribunal did indeed have the power to waive compliance with the notice period in certain circumstances. The court determined that the tribunal's decision was subject to judicial review, and the error in the notice period was significant enough to warrant setting aside the notice. The court also found that the application for leave to appeal should be granted, and the appeal was allowed on the basis that the tribunal's decision was flawed due to the incorrect notice period. Consequently, the decision of 8 July 2013 and the notice to leave dated 23 May 2013 were both set aside.

The final orders of the court were that the application for an oral hearing was refused, the application for leave to appeal was granted, the appeal was allowed, the decision dated 8 July 2013 was set aside, and the notice to leave dated 23 May 2013 was also set aside. These orders effectively reversed the tribunal's decision and provided relief to the tenant, ensuring that the landlord complied with the correct legal procedures in the future.

Orders

Orders of the court

1. The application for an oral hearing is refused.

2. The application for leave to appeal granted.

3. The Appeal is allowed.

4. The decision of 8 July 2013 is set aside.

5. The notice to leave dated 23 May 2013 is set aside.

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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