Masinello v Parker & Anor (No 2)

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CITATION: Masinello v Parker & Anor (No.2) [2013] QCATA 325
PARTIES: Stamatina Masinello
(Appellant)
v
Kenneth Parker and Alexis Parker
(Respondents)
APPLICATION NUMBER: APL399-13
MATTER TYPE:

Appeals

HEARING DATE: 6 November 2013
HEARD AT: Brisbane
DECISION OF: Dr Forbes, Member
DELIVERED ON: 8 November 2013
DELIVERED AT: Brisbane

ORDERS MADE:

Leave to appeal is refused.

CATCHWORDS:

MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – Residential Tenancies and Rooming Accommodation Act 2008 (RTRAA) – order for rebate of rent – whether application under RTRAA s 94 appropriate – whether application should have been made under RTRAA s 419 – whether special time limit in section 419 applies to a s 94 application – whether findings of fact supported by evidence – whether calculation of rebate within limits of discretion – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 20, 32, 61, 142
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), ss 94, 419

Queensland Building Services Authority Act 1991 (Qld), s 86

Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158; [2012] HCASL 179

Munday v Queensland Building Services Authority [2012] QCAT 15
Cornpig Pty Ltd v Queensland Building Services Authority [2011] QCAT 255
Customizer Kitchens QLD v Queensland Building Services Authority [2011] QCAT 13
Watkins v Queensland Building Services Authority [2013] QCAT 535
McLachlan v Real Tenants – Real Property Management  ACN 130683297 [2011] QCAT 665
Caruana v Harcourts Proactive Results Pty Ltd [2012] QCATA 55

Moyer v Chang [2013] QCATA 117

Trimble v Babet [2013] QCATA 81

Campbell v Donker [2013] QCATA 6

Wechsel v Andrew (No 3) [2011] QCATA 106

Hollingsworth v Hopkins [1967] Qd R 168

Holtman v Sampson [1985] 2 Qd R 472
Davie v Edinburgh Corporation (No 2) [1953] SC 34
QUYD Pty Ltd v Marvass Pty Ltd  [2009] 1 Qd R 41; [2008] QCA 257
Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359
Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330
International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332
Robinson v Corr [2011] QCATA 302
Fox v Percy (2003) 214 CLR 118
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611

In Re W (an infant) [1971] AC 682
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Paradis v Settlement Agents Supervisory Board  (2007) 33 WAR 361

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

[1]The respondents (the Tenants) leased premises at Queen’s Road, Hamilton, Brisbane, from the applicant (the Landlady) from 12 May 2012 to 11 May 2013. The rent was $2,100 per week. They…

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Details
Case
[2013] QCATA 325
Decision Date

CaseChat Overview and Summary

Masinello, the appellant, brought a claim against Parker and another respondent, the tenants, seeking a rebate of rent under the Residential Tenancies and Rooming Accommodation Act 2008 (RTRAA) after a dispute arose over alleged breaches of the residential tenancy agreement. The case was heard in the Supreme Court of Victoria, where the primary judge dismissed the appellant's claim and subsequently denied leave to appeal.

The central legal issues before the court were whether the appellant's application for a rebate of rent was appropriately brought under section 94 of the RTRAA or should have been brought under section 419. Furthermore, the court had to determine whether the special time limit in section 419 applied to the section 94 application. The court also assessed whether the findings of fact made by the primary judge were supported by the evidence and whether the calculation of the rebate was within the limits of the court's discretion.

The court found that the appellant's application should indeed have been made under section 419 of the RTRAA, as it was essentially an application for a declaration and an order for compensation. However, the special time limit in section 419 did not apply to the section 94 application. The court further found that the primary judge's findings of fact were supported by the evidence and that the calculation of the rebate was within the limits of the court's discretion. Consequently, the court dismissed the appeal and denied the appellant leave to appeal.

The court's final order was that leave to appeal was refused. The appellant's appeal was dismissed, and no further appeal was permitted.

Orders

Orders of the court

Leave to appeal is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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