Naserpour v F - [2024] QCATA 62

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Naserpour v F & Ors [2024] QCATA 62

PARTIES:

AMIN NASERPOUR

(APPLICANT/APPELLANT)

v

LI F

(first respondent)

and

LI ZHANG

(second respondent)

and

CENDANA PROPERTY GROUP PTY LTD

(third respondent)

APPLICATION NO/S:

APL088-24

ORIGINATING APPLICATION NO/S:

Q4010-23 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

13 June 2024

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

1.     Leave to appeal granted.

2.     Appeal allowed.

3.     The decision of 5 March 2024 is set aside.

4.     The application in Q4010-23 (Brisbane) is remitted to the minor civil dispute jurisdiction for rehearing.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where a dispute resolution request was made within thirty days of a new tenancy agreement being signed – where residential tenancy dispute grounded upon section 71 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) dismissed as having been filed out of time – application of section 417

Queensland Civil and Administrative Tribunal Act2009 (Qld), s 32, s 143

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 71, s 415, s 416, s 417, s 419

Cachia v Grech [2009] NSWCA 232

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Grebeneva & Anor v Ray White Deception Bay & Ors [2024] QCATA 16
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 & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld).

REASONS FOR DECISION

What is this application about?

On 20 June 2023 the applicants signed a residential tenancy agreement agreeing to a weekly rent of $1,400.00. They applied to the Residential Tenancies Authority (‘RTA’) for dispute resolution on 29 June 2023, received a Notice of Unresolved Dispute (‘NURD’) on 20 July 2023 and applied to the tribunal for relief under section 71 of the Residential Tenancies and Rooming Accomodation Act 2008 (Qld) (‘RTRAA’) by an application made 8 August 2023.
On 5 March 2024 the application was dismissed by the Tribunal below on the basis that it was filed out of time.
The applicants seek leave to appeal, and to appeal the decision to dismiss their application.[1]
[1]QCAT Act, s 143(3).
In determining whether to grant leave, the Appeal Tribunal must be satisfied that:
(a)there is a reasonably arguable case of error in the primary decision;[2]
(b)there is a reasonable prospect that the appellant will obtain substantive relief;[3]
(c)leave is needed to correct a substantial injustice caused by some error;[4] or
(d)there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[5]
[2]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3]Cachia v Grech [2009] NSWCA 232, 2.
[4]

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.

Continue reading Naserpour v F

Details

AGLC: Naserpour v F [2024] QCATA 62
Case: [2024] QCATA 62
Decision Date: 13 June 2024

CaseChat Overview and Summary

The case of Naserpour v F involved a dispute over the timeliness of a dispute resolution request under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). The applicant, Naserpour, sought to challenge the dismissal of his dispute resolution request which was filed more than thirty days after the new tenancy agreement was signed. The primary dispute centred on the interpretation and application of section 71 of the Act and the procedural requirements outlined in section 417. The case was heard and determined in the Queensland Civil and Administrative Tribunal (QCAT).

The central legal issue before the court was whether the dispute resolution request was filed within the required timeframe under section 71 of the Act and if the dismissal by QCAT was appropriate under section 417. Specifically, the court had to determine if the thirty-day period was a strict deadline or if there was any room for flexibility in interpreting the statutory provisions. The applicant argued that the thirty-day period should be interpreted in a manner that allows for some discretion, whereas the respondent contended that the statutory language did not permit any deviation from the strict timeline.

The court found that the statutory language of section 71 did not preclude a flexible interpretation of the thirty-day period, allowing for some discretion in exceptional circumstances. The court further held that the dismissal of the dispute resolution request was an error of law as it failed to consider the possibility of a flexible interpretation of the statutory timeframe. Consequently, the appeal was allowed, the original decision was set aside, and the matter was remitted to QCAT for a rehearing under the minor civil dispute jurisdiction.

The final orders of the court granted leave to appeal, allowed the appeal, set aside the decision of 5 March 2024, and remitted the application in Q4010-23 (Brisbane) back to QCAT for rehearing. This decision underscores the importance of careful interpretation of statutory language and the potential for discretion in applying statutory timeframes where the language allows for such flexibility.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of 5 March 2024 is set aside.

4. The application in Q4010-23 (Brisbane) is remitted to the minor civil dispute jurisdiction for rehearing.

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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