Moyer v Chang - [2013] QCATA 117

CITATION:

Moyer v Chang [2013] QCATA 117

PARTIES:	Ms Marie Moyer (Applicant)
v
Ms Li Ling Chang (Respondent)

APPLICATION NUMBER:

APL039-13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Peta Stilgoe, Senior Member

DELIVERED ON:

22 April 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of 3 January 2013 is set aside.

4. The application in MCD2467/12 is dismissed.

CATCHWORDS:

MINOR CIVIL DISPUTE – where application for compensation on abandonment – whether truly an abandonment – whether dispute resolution request required – whether claim out of time – whether grounds for leave to appeal

Residential Tenancies and Rooming Accommodation Act 2008, s 359, s 415, s 416, s 419

Cachia v Grech [2009] NSWCA 232

Chambers v Jobling (1986) 7 NSWLR 1

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
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
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

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

On 15 March 2012, Raine & Horne Robertson, acting for Ms Chang and Mr Kuroda, issued a Form 15 Abandonment Termination Notice to Ms Moyer. On 4 December 2012, Raine & Horne filed an application for compensation on abandonment. The tribunal largely accepted Raine & Horne’s submissions and ordered Ms Moyer pay Ms Chang and Mr Kuroda $1,963.20.
Ms Moyer wants to appeal that decision. She says that the learned Adjudicator could not make the order for two reasons. Firstly, Raine & Horne did not make a dispute resolution request as required.[1] Secondly, My Moyer says that the claim is out of time, as it was not made within six months of the end of the tenancy.[2]
[1] Residential Tenancies and Rooming Accommodation Act 2008, s 416.
[2] Residential Tenancies and Rooming Accommodation Act 2008, s 419.
Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[3] Is there a reasonable prospect that the applicant will obtain substantive relief?[4] Is leave necessary to correct a substantial injustice caused by some error?[5] Is there a question of general importance upon which further argument, and a decision of the Appeals Tribunal, would be to the public advantage?[6]
[3]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]        Cachia v Grech [2009] NSWCA 232 at 2.
[5]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6]Glenwood Properties Pty Ltd v Delmoss…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] QCATA 117
Decision Date: 22 April 2013

CaseChat Overview and Summary

The parties involved in the case were Moyer and Chang. Moyer filed an application for compensation on the grounds of abandonment. The matter was brought before the court to determine if the abandonment was genuine, whether a dispute resolution request was necessary, if the claim was out of time, and if there were grounds for leave to appeal. The court had to decide if the application for compensation was valid and if the abandonment was indeed genuine. The court also had to consider whether the dispute resolution process was properly followed and if the claim was within the prescribed time limit. Additionally, the court needed to assess if there were sufficient grounds to grant leave to appeal the decision made on 3 January 2013.

The court found that the abandonment was not genuine, as there was no valid reason for the termination of the tenancy. The court also ruled that a dispute resolution request was necessary but was not properly followed. Furthermore, the court determined that the claim was out of time, as it was not filed within the prescribed period. Finally, the court found that there were grounds for leave to appeal, as the decision made on 3 January 2013 was flawed.

Based on the findings, the court granted leave to appeal and allowed the appeal. The decision of 3 January 2013 was set aside, and the application in MCD2467/12 was dismissed. The court's decision was based on the evidence presented and the legal principles applicable to the case. The court concluded that the abandonment was not genuine, and the dispute resolution process was not properly followed. Additionally, the claim was out of time, and there were sufficient grounds for leave to appeal. The decision highlights the importance of following proper legal procedures and filing claims within the prescribed time limit.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of 3 January 2013 is set aside.

4. The application in MCD2467/12 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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