McGrath Real Estate Surfers Paradise v von Allmen (No. 2)

[2021] QCAT 41

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

McGrath Real Estate – Surfers Paradise v von Allmen (No. 2) [2021] QCAT 41

PARTIES:

MCGRATH REAL ESTATE – SURFERS PARADISE

(applicant)

v

NATASHA VON ALLMEN

(respondent)

APPLICATION NO/S:

MCD/T000722-20

MATTER TYPE:

Residential tenancy matters

DELIVERED ON:

19 January 2021

HEARING DATE:

On the papers

HEARD AT:

Southport

DECISION OF:

Adjudicator Lember

ORDERS:

The respondent’s application for re-opening is refused.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor civil dispute – residential tenancy dispute – where re-opening application refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b), s 4(b), s 4(c), s 138, s 139, Schedule 3.

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) s 92, s 93

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 429

Bruce v Ridgway [2020] QCATA 95

McGrath Real Estate – Surfers Paradise v von Allmen [2021] QCAT 12

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

Background

1. By an Application filed 1 June 2020 the applicant sought compensation orders under s 429 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“RTRAA”) on account of (in summary) break lease and advertising fees and rent arising from an alleged early termination of the lease by the respondent.

2. The application and notice of a hearing set down for 2 December 2020 were sent to the respondent by email on 4 November 2020. 

3. On 5 November 2020 the respondent replied by email with a suggestion that the Tribunal “will have to get this matter dealt with urgently”.

4. On 1 December 2020, by emails sent at 1.12am and 6.29pm respectively the respondent requested an adjournment of the hearing on grounds that included the following:

   (a)that, referring to a medical certificate dated 24 November 2020, the respondent is terminally ill and is not allowed to engage in any matters except those of medical necessity;

   (b)that she lives interstate and cannot participate in person or by phone on medical grounds;

   (c)that the issues are complex, and she requires more time to prepare for the hearing; and

   (d)that she cannot self-advocate and there are no advocates available to assist her.  

5. An adjournment was requested by the respondent until she was “well enough and physically able” but she reiterated that she “may die” and could not give a time frame as to when she might be available to participate in a hearing. 

6. At the hearing on 2 December 2020, the learned adjudicator ordered that:

   1. Application for adjournment is refused.

   2. Within 21 days, the Respondent pay the Applicant $1,720.00.

7. On 5 January 2021 the applicant filed an application to reopen the decision of 2 December 2020, and for it to be stayed pending the reopening.  

8. The application for a stay was refused[1] and notice of that given to the respondent on 5 January 2021, together with notice that the reopening would be considered on the papers on 19 January 2021 and that submissions on that were due by 4pm on 18 January 2021.

   [1]McGrath Real Estate – Surfers Paradise v von Allmen [2021] QCAT 12.

9. The grounds of her application to reopen were (in summary) as follows:

   (a)that she was pressured to participate in the hearing against strict medical advice;

   (b)that she was unable to prepare for the hearing due to medical reasons;

   (c)that when she received the call for her hearing, she was with her doctor receiving medical treatment;

   (d)that the adjudicator tried to make her feel obliged and pressured to participate in the hearing by phone without prior consultation or notice and was dismissive of the respondent’s illness; and

   (e)that she was denied natural justice.

10. The respondent made further submissions by email on 18 January 2021 that:

    I was not allowed any stress or to be dealing with QCAT as I clearly and explicitly explained in the original hearing on the 2/12/2020, in which the adjudicator made me feel forced to participate without any prior notice or consultation.

11. The application for reopening came before me on the papers on 19 January 2021 and I refused the application for the reasons set out below.

Law

1. The objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”)[2] include to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick, and, to that end, section 4 of the QCAT Act requires the Tribunal, among other things, to:

   (a)encourage the early and economical resolution of disputes before the Tribunal;[3] and

   (b)ensure proceedings are conducted in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice.[4]

   [2]Section 3(b) of the QCAT Act.

   [3]Ibid, section 4(b).

   [4]Ibid, section 4(c).

2. Section 138 of the QCAT Act allows a party to a proceeding to apply to reopen the proceeding if a “reopening ground” exists.

3. Reopening grounds include:

   (a)that a party did not appear at the hearing and had reasonable excuse for failing to do so; or

   (b)that a party would suffer substantial hardship if the proceeding was not reopened because significant new evidence not available at the hearing has arisen[5].

   [5]Defined in Schedule 3 of the QCAT Act.

4. Under Rule 92 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) an application for reopening must be filed within 28 days of the relevant decision – the respondent’s application was - and under Rule 93 each party must be given an opportunity to make submissions on the application – they were.

5. Under section 139 of the QCAT Act the Tribunal can reopen if a reopening ground exists, and if satisfied the ground could be dealt with by reopening the proceeding.

6. In deciding whether to reopen, the Tribunal must consider delay, wasted costs, the legitimate concerns of proper case management and the proper use of public resources.[6]

   [6]Bruce v Ridgway [2020] QCATA 95, [5].

Findings

1. I am not satisfied on balance that a reopening ground exists because:

   (a)on her own admission, the respondent did appear at the hearing, even though it was by telephone, and, according to the respondent, under protest; and  

   (b)because the respondent did not offer in her submissions for reopening significant new evidence that was not available at the time of the hearing.

2. In the absence of a reopening ground existing, the application for reopening must be refused.

Orders

The respondent’s application for re-opening is refused.