Mayer v Holmes
[2014] QCATA 121
•12 May 2014
| CITATION: | Mayer v Holmes [2014] QCATA 121 |
| PARTIES: | Andrew John Mayer (Applicant/Appellant) |
| v | |
| Michelle Holmes (Respondent) |
| APPLICATION NUMBER: | APL435-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 12 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where application for compensation for breach of tenancy – where no dispute resolution request – whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 416 Pickering v McArthur [2005] QCA 294 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr Mayer rented a home from Ms Holmes. He ran a business from the home but he says, the business suffered because the telephone lines to, and ‘Hills Hub system’ supplied with, the home were defective. Mr Mayer filed a claim for $18,740 compensation, most of which was a claim for lost wages. The tribunal dismissed Mr Mayer’s application.
Mr Mayer wants to appeal that decision. He says the learned Member erred in her findings of fact. He also says he was not given a ‘fair go’.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:
There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
[1][2005] QCA 294 at [3].
Mr Mayer’s application has an insuperable difficulty. A person may make a non-urgent application to the tribunal about a breach of a tenancy agreement only if the person has first made a dispute resolution request and the conciliation process has ended[2].
[2]Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 416.
Mr Mayer filed a non-urgent application. Part C on page 6 of the application asks whether conciliation has been attempted. Mr Mayer placed a cross in the ‘no’ box. I have considered the material filed in this dispute. There is no evidence of a dispute resolution request. There is no evidence of a Notice of Unresolved Dispute from the Residential Tenancies Authority. On that evidence, I can only conclude that there was no dispute resolution request.
The tribunal has no jurisdiction to hear the dispute if there has been no attempt at conciliation. The tribunal cannot waive compliance with the requirement to make a dispute resolution request[3].
[3]Green v Hatchy Investments Pty Ltd [2013] QCATA 274.
Leave to appeal must be refused.
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