Martin v Chadia Chalmers Realty Pty Ltd

Link copied
Case Copied 24 min read

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Martin & Anor v Chadia Chalmers Realty Pty Ltd [2020] QCATA 164

PARTIES:

ARJAY RASE MARTIN

JANICA JOHANNA LEPPANEN

(applicant)             

v

CHADIA CHALMERS REALTY PTY LTD

(respondent)

APPLICATION NO/S:

APL011-20

ORIGINATING APPLICATION NO/S:

MCDT1537/19

MATTER TYPE:

Appeals

DELIVERED ON:

8 December 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

1.   The application for miscellaneous matters filed by the applicant on 12 March 2020 is dismissed.

2.   The application for miscellaneous matters filed by the applicant on 19 March 2020 is dismissed.

3.   Leave to appeal is refused.

4.   The stay of the decision is lifted.

5.   The Warrant of Possession issued on 9 December 2019 is re-instated to take effect on 28 January 2021 and remain in effect for 14 days, to expire at 6.00pm on 12 February 2021.

6.   The Warrant of Possession is to be executed as soon as reasonably practicable after taking effect.

7.   Entry under the Warrant of Possession shall only be between the hours of 8.00am and 6.00pm.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – OTHER CASES – whether Tribunal erred in not allowing discovery of documents - where Tribunal refused to adjourn urgent tenancy hearing - where allegation of denial of natural justice – where Tribunal has mandate to deal with matters quickly – where applicant was given opportunity to present case and rebut respondent’s case – where appellant had obligation to prove its case – where appellant was given natural justice within context of Tribunal’s minor civil disputes jurisdiction

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – interference with findings of Tribunal below – functions of appellate tribunal – where no valid ground of appeal raised – where findings open on evidence – where no reasonably arguable case of Tribunal in error – where no reasonable prospect of substantive relief on appeal – where speculative allegation of bias

LANDLORD AND TENANT - TERMINATION OF  THE TENANCY – GENERALLY - where residential tenancy terminated for failure to leave – where Tribunal has broad discretionary power – where no appellable error shown

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 13, s 28, s 121
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 43
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 206, s 292, s 293, s 341, s 349

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Armstrong v Kawana Island Retirement Village [2011] QCATA 324
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39
Brownie & Anor v Penfold [2013] QCATA 182
Cachia v Grech [2009] NSWCA 232
Cavalliotis v Rizio & Anor [2013] QCATA 201
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Martin v Chadia Chalmers Realty Pty Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2020] QCATA 164
Decision Date

CaseChat Overview and Summary

In Martin v Chadia Chalmers Realty Pty Ltd, the respondent sought to appeal a decision of the Queensland Civil and Administrative Tribunal (QCAT) that terminated a residential tenancy for the failure of the tenants to vacate the premises. The appeal centred on the alleged denial of natural justice and the refusal to allow discovery of documents. The appellants, the tenants, argued that the QCAT Tribunal had denied them procedural fairness by refusing to adjourn the hearing to allow for discovery and by not permitting the tenants to present their case fully. The appellants also sought to adduce fresh evidence, which the Tribunal had rejected.

The appeal court examined whether the Tribunal had erred in refusing to allow discovery of documents and whether it had denied natural justice by not adjourning the hearing. The court considered that QCAT has a mandate to deal with minor civil disputes quickly and that the appellants had been given an opportunity to present their case and rebut the respondent's case. The court noted that the appellants had an obligation to prove their case and that the Tribunal had provided them with natural justice within the context of its jurisdiction. The appeal court found that there was no valid ground of appeal and that the findings of the Tribunal were open on the evidence. The court also concluded that there was no reasonably arguable case of error by the Tribunal and no reasonable prospect of substantive relief on appeal.

In light of the findings, the appeal was dismissed, and leave to appeal was refused. The court lifted the stay of the decision and reinstated the Warrant of Possession. The Warrant of Possession was to take effect on a specified date and remain in effect for a period of 14 days, with entry to be executed between specified hours. The tenants were required to vacate the premises within the timeframe set out in the Warrant.

Orders

Orders of the court

1. The application for miscellaneous matters filed by the applicant on 12 March 2020 is dismissed.

2. The application for miscellaneous matters filed by the applicant on 19 March 2020 is dismissed.

3. Leave to appeal is refused.

4. The stay of the decision is lifted.

5. The Warrant of Possession issued on 9 December 2019 is re-instated to take effect on 28 January 2021 and remain in effect for 14 days, to expire at 6.00pm on 12 February 2021.

6. The Warrant of Possession is to be executed as soon as reasonably practicable after taking effect.

7. Entry under the Warrant of Possession shall only be between the hours of 8.00am and 6.00pm.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The application for joinder is dismissed.Should the Tribunal admit fresh evidence? The tenants filed an application to file fresh evidence.[20] [20]Application for miscellaneous matters filed 19 March 2020. The application is misconceived. The tenants did not identify or file the specific evidence they were seeking to adduce as fresh evidence. It is not for the Tribunal to determine the evidence a party will require. Regardless, there is no basis to allow the tenants another opportunity to file evidence, whatever it might be. The onus was always upon the tenants to present their own case, including providing all evidence relevant to why the tenancy should not be terminated for their failure to leave. The tenants had an obligation to act in their own best interests: The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, “… the public as a whole, not merely the parties to the proceedings”. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[21] [21]Creek v Raine & Horne Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217. The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce fresh evidence must satisfy three tests:[22] (a)Could the parties have obtained the evidence with reasonable diligence for use at the trial? (b)If allowed, would the evidence probably have an important impact on the result of the case? (c)Is the evidence credible?[22]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. The tenants’ application[23] relevantly states:QCAT original jurisdiction did not require the normal serving of documents, reply, response to the reply, response to the response.Besides ones generated after the original hearing, most of the documents were with myself (sic) (Arjay) or with Janica, ready to be presented, but not allowed to be by the Adjudicator’s conduct…Things like affidavits were not required for oral testimony, this appeal is ‘on the papers’ so is (sic) now required.This evidence is important to allow justice to be done, and seen to be done; for a fair hearing, natural justice, procedural fairness, etc. Therefore anything QCAT deems ‘fresh evidence’ should be accepted.It is hard to determine what QCAT might consider fresh evidence, obviously legal arguments are not evidence, the other party also had most of these documents eg emails to and from them. These documents were already provided, so are not attached here, it is unknown what, if anything will be deemed by QCAT as fresh when Adjudicator Mewing prevented submissions and arguments, including what was available.[23]Application for miscellaneous matters filed 19 March 2020, Part C2.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.