Mark Coker v Ray White Moranbah

CITATION: Mark Coker v Ray White Moranbah [2011] QCATA 206

PARTIES:	Mark Coker
v
Ray White Moranbah

APPLICATION NUMBER:   APL168-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President

DELIVERED ON: 1 August 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

1.    Leave to appeal is granted.

2.    The appeal is upheld.

3.    The decision of the Tribunal to dismiss the application made on 11 April 2011 is set aside.

4.   Moranbah Minor Civil Dispute claim 8/11 is listed for rehearing in Moranbah at a date and time to be advised by the Registrar.

CATCHWORDS : 

APPEAL – Minor Civil Dispute – Natural Justice – whether party properly heard

APPEAL – Minor Civil Dispute – Residential Tenancy – where rent increase for new fixed term tenancy – whether Tribunal had jurisdiction to hear an application objecting to the increase

Queensland Civil and Administrative Tribunal Act 2009 ss 3, 11, 28, 29, 43, 142(3)(a)(i), sch 3 (definition of ‘minor civil dispute’).

Residential Tenancies and Rooming Accommodation Act 2008 ss 71, 92

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Ray White Moranbah is the agent-lessor of a property in Moranbah. Mr Coker is their tenant.  On 11 April 2011 Mr Coker lodged an application in the Minor Civil Dispute jurisdiction of QCAT to have an increase ($250 per week) in his rent declared excessive, and for an order that the rent be reduced.

1. On 21 April 2011 a Magistrate in Moranbah, acting in his capacity as a QCAT Member, struck out Mr Coker’s application for lack of jurisdiction. On his application, Mr Coker had ticked a box to indicate his application was brought under s 91 of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA Act).  The Magistrate, correctly, determined that Mr Coker could not proceed under that section.

1. Leave to appeal is required to appeal from a decision arising from a Minor Civil Dispute.[1]  Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

   [1]        Queensland Civil and Administrative Tribunal Act 2009 s 142(3)(a)(i).

1. The Tribunal has jurisdiction to hear certain residential tenancy disputes.[2] Rent increases can be challenged under the RTRA Act. Which section confers jurisdiction is determined by the nature of the tenancy. If the increase relates to a periodic tenancy or is made during a fixed term tenancy, the application may be brought under s 92. If the increase relates to a new fixed term tenancy agreement entered…