Powell v Kang

[2014] QCAT 46

CITATION: Powell & Anor v Kang [2014] QCAT 46

PARTIES:	Justin Powell Melissa Leigh West (Applicants)
v
Eva Kang (Respondent)

APPLICATION NUMBER: MCDT2339/13

MATTER TYPE: Residential tenancy matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Adjudicator Gordon

DELIVERED ON: 9 January 2014

DELIVERED AT: Brisbane

ORDERS MADE: The application for reopening is refused.

CATCHWORDS: Residential tenancy matter – Application to reopen

APPEARANCES and REPRESENTATION (if any):

The tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. In a Form 43 received by the Tribunal on 24 December 2013, the Applicants (Mr Powell and Ms West) applied for reopening of the proceedings. In accordance with section 139 of the Queensland Civil and Administrative Tribunal Act 2009 the parties were given an opportunity to make representations on the application to reopen. On 9 January 2014 I considered the application to reopen “on the papers” and refused it. The Applicants now ask for written reasons for this decision.

2. The proceedings had been heard in Brisbane at 9.30am on 26 November 2013.  At that hearing only the Respondent appeared.

3. In the application for reopening the reason for non-attendance at the hearing was given as:-

   Due to starting a new job on the day of the proceedings, we were not able to attend.

4. The Applicants were claiming an order from the Tribunal for termination of their lease due to an ongoing mould problem. This application was made under section 309 of the Residential Tenancies and Rooming Accommodation Act 2008 (the RTRAA). That section entitles a tenant to apply to the Tribunal for a termination of the tenancy if the lessor has failed to comply with a notice to remedy breach.

5. To be dealt with properly, such an application would have required the attendance of the Applicants at the hearing in order to prove to the satisfaction of the Tribunal that the notice to remedy breach had not been complied with.  Therefore at the hearing on 26 November 2013 due to the absence of the Applicants, the application for termination was dismissed.

6. By Division 7 of the QCAT Act a party may apply to the tribunal for a reopening if they have a reopening ground. One of the reopening grounds (seemingly relied on here) is that the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing.

7. Was there a reasonable excuse for not attending the hearing?  The notice of hearing was sent out on 4 November 2013.  There is nothing on the file to suggest that the Applicants had contacted the Tribunal, or the Respondent, to say that there was any difficulty attending the hearing.  The Applicants do not explain why neither of them was able to attend the hearing.  There is no proof provided of what they say about the job.  It seems possible that they both started new jobs on 26 November 2013.  If as if more likely, only one of them started a job on that day then the other could have attended.  Appearance by telephone could have been requested.

8. I must conclude therefore that there was no reasonable excuse for not attending the hearing.  It follows that there is no re-opening ground, and the decision made on 26 November 2013 must stand.

9. Even if a reopening ground is proved, it does not necessarily follow that the matter should be reopened. By section 139(4) of the QCAT Act, the tribunal may make a reopening order.  And it can only do so if the ground relied on could effectively or conveniently be dealt with by reopening the proceedings.

10. Here, even if the Applicants had a reasonable excuse for not attending the hearing, it would be pointless to reopen the proceedings.  This is because it appears that the tenancy has already terminated.  The Respondent states in submissions made in the reopening application that this has happened.  There is no detail explaining how this may have happened, but there may have been a written agreement between the two sides under section 277 of the RTRAA.  Even if there was no written agreement, the Applicants’ had already vacated the premises and their one year fixed term ended in mid December 2013 so at the very latest the tenancy came to an end at that time.  In those circumstances, if there were a fresh hearing of the matter, the Tribunal would not make an order for termination anyway because it would not be needed. 

11. The Applicants may well have money claims against the lessor, but these were not before the Tribunal on 26 November 2013.  Only the termination application was before it.  This is because the Applicants ticked the “urgent application” box on the claim form.  That box only applies to termination applications and certain other types of applications and not to money claims.  In any case the Tribunal has no jurisdiction over money claims unless the parties have sought conciliation of such claims with the Residential Tenancies Authority.  There is nothing on the file showing that this has been done.