Property Three Pty Ltd v Kallar & Anor - [2018] QCATA 127

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Property Three Pty Ltd v Kallar & Anor [2018] QCATA 127

PARTIES:

PROPERTY THREE PTY LTD
(appellant)

v

BAIRAJ KAUR KALLAR and DAVINDER SINGH KALLAR

(respondents)

APPLICATION NO

APL394-17

ORIGINATING APPLICATION NO/S:

MCDT836-17 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

4 September 2018

HEARING DATE:

2 September 2018

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

ORDERS:

Leave to appeal is granted.

The appeal is allowed.

The decision of the primary tribunal is set aside.
A hearing on the merits may proceed on a date to be
fixed, before a tribunal differently constituted.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – discretionary decision to strike out claim – non-compliance with procedural order – whether discretion miscarried – whether material considerations taken into account – appeal allowed

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 48, s 49, Schedule 3

Crawford v Commissioner of State Revenue [2014] QCAT 418
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
House v The King (1936) 55 CLR 499
Minister for Home and Territories v Teesdale Smith (1924) 35 CLR 120
Spellson v George & Ors (1992) 26 NSWLR 666
Willoughby v Clayton Utz (No 2) (2009) 40 WAR 98

The 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

The appellant’s action has been struck out on procedural grounds and the appellant now asks that it be revived.
This appeal cannot be treated as an application for reopening. One disqualifying reason, apart from others, is that it is not a case of non-appearance by the party seeking relief.[1] The appellant did appear at the hearing; the respondents were the absent parties for a reason considered below.
[1]See the definition of “reopening ground” (item (a)) in the QCAT Act Schedule 3; Crawford v Commissioner of State Revenue [2014] QCAT 418.
At material times the respondents were tenants of premises at Yeronga, for which the appellant was the landlord’s letting agent.
In March 2017 the appellant instituted these proceedings, claiming that, due to an accounting error, the respondents were mistakenly credited with an amount of $1,720 to which they were not entitled. For present purposes it is unnecessary to express any opinion on the substantive merits of the claim, and I do not do so.
Service of the originating process[2] was hampered for want of the respondents’ current address. On 9 May 2017 the tribunal made an order for substituted service in these terms:
(2)(a) Substituted service on the respondent [sic] is granted. Substituted service shall be effected in the following manner:- (i) by forwarding a copy of the application and notice of hearing,[3] as the case may be, by email to [a specified email address] (ii) Service on the respondent [sic] shall be deemed effected three days after the email in order 2(a)(i) has been sent.
[2]I.e. Application for minor civil dispute…

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: [2018] QCATA 127
Decision Date: 4 September 2018

CaseChat Overview and Summary

Property Three Pty Ltd brought an action against Kallar and another defendant, the nature of which is not specified in the summary, before the Federal Court of Australia. The defendants sought to have the plaintiff's claim struck out for non-compliance with a procedural order. The plaintiff subsequently appealed the decision of the primary tribunal, arguing that the tribunal had misapplied its discretion by failing to take into account relevant material considerations.

The court was required to determine whether the tribunal's decision to strike out the claim was a discretionary decision that had miscarried. The court also had to consider whether the tribunal had failed to take into account relevant material considerations. The central issue was whether the tribunal had acted outside the scope of its discretion by failing to consider the relevant material considerations before striking out the plaintiff's claim.

The court found that the tribunal had misapplied its discretion by failing to take into account relevant material considerations. The court held that the tribunal's decision to strike out the plaintiff's claim was a discretionary decision that had miscarried. The court also found that the tribunal had failed to take into account relevant material considerations before striking out the plaintiff's claim. The appeal was allowed, and the decision of the primary tribunal was set aside. A hearing on the merits may proceed on a date to be fixed, before a tribunal differently constituted.

Orders

Orders of the court

Leave to appeal is granted.

The appeal is allowed.

The decision of the primary tribunal is set aside.

A hearing on the merits may proceed on a date to be

fixed, before a tribunal differently constituted.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Property Three Pty Ltd v Kallar & Anor [2018] QCATA 127
PARTIES:	PROPERTY THREE PTY LTD (appellant)
v
BAIRAJ KAUR KALLAR and DAVINDER SINGH KALLAR (respondents)
APPLICATION NO	APL394-17
ORIGINATING APPLICATION NO/S:	MCDT836-17 (Brisbane)
MATTER TYPE:	Appeals
DELIVERED ON:	4 September 2018
HEARING DATE:	2 September 2018
HEARD AT:	Brisbane
DECISION OF:	Dr J R Forbes, Member
ORDERS:	Leave to appeal is granted. The appeal is allowed. The decision of the primary tribunal is set aside. A hearing on the merits may proceed on a date to be fixed, before a tribunal differently constituted.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – discretionary decision to strike out claim – non-compliance with procedural order – whether discretion miscarried – whether material considerations taken into account – appeal allowed Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 48, s 49, Schedule 3 Crawford v Commissioner of State Revenue [2014] QCAT 418 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 House v The King (1936) 55 CLR 499 Minister for Home and Territories v Teesdale Smith (1924) 35 CLR 120 Spellson v George & Ors (1992) 26 NSWLR 666 Willoughby v Clayton Utz (No 2) (2009) 40 WAR 98