Real Estate Network Pty Ltd t/as LJ Hooker Ipswich v Brecknell
[2013] QCATA 332
•8 November 2013
| CITATION: | Real Estate Network Pty Ltd t/as LJ Hooker Ipswich & Ors v Brecknell & Anor [2013] QCATA 332 |
| PARTIES: | Real Estate Network Pty Ltd t/as LJ Hooker Ipswich Mr Rob Oberg Mrs Karen Oberg (Applicants) |
| v | |
| Leanne Brecknell Nathan Brecknell (Respondents) |
| APPLICATION NUMBER: | APL356 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 8 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is granted. 2. Appeal is allowed. 3. The decision of 17 July 2013 is set aside. 4. Leanne and Nathan Brecknell shall pay Rob Oberg and Kane Oberg $1,580 by 4:00pm on 25 November 2013. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where decision by earlier tribunal – where basis of earlier decision affected the decision of current tribunal – where current tribunal not informed of basis for decision - whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal 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
Mr and Ms Brecknell rented a home through Real Estate Network Pty Ltd trading as LJ Hooker Ipswich. Mr and Mrs Oberg are the lessors and LJ Hooker has been acting as their agent.
Mr and Ms Brecknell left the home before the end of the tenancy agreement. In March 2013, they filed a claim in relation to the bond. An Adjudicator ordered that Mr and Ms Brecknell pay LJ Hooker $1,174.50 ‘after [LJ Hooker] take the bond’[1].
[1]Transcript 7 May 2013, page 1-20, lines 1 – 9.
On 2 July 2013, LJ Hooker filed a claim for the bond. Two Justices of the Peace, sitting as the tribunal in its minor civil disputes jurisdiction, ordered the bond to be paid to the Brecknells.
Mr and Mrs Oberg want to appeal that decision. They say the learned JPs could not make that decision because it was already the subject of a decision by the Adjudicator.
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?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appeals 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 at 2.
[4]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The learned JPs were misled at the July hearing. They knew that there was an earlier order[6] but they did not know, because no one told them, the basis of the earlier order.
[6] Transcript 17 July 2013, page 1-2, lines 22 – 26, page 1-3, lines 20 – 21.
The Brecknells told the learned JPs about their complaints, all of which had been ventilated before the Adjudicator. Although the learned JPs invited LJ Hooker’s representative to speak to the issues the Brecknells raised, for some reason, she did not tell the learned JPs why the earlier order was made.
The Appeal Tribunal will not normally grant leave to appeal just because a party forgot to make a point during the earlier hearing. Here, however, the learned JPs simply had no jurisdiction to hear argument about the Brecknells’ complaints because the tribunal had already heard those complaints and come to a decision. If the Brecknells were unhappy with that decision, their remedy was to appeal it, not to reargue it before the tribunal differently constituted.
The interests of justice require the grant of leave to appeal, for the appeal to be allowed, and the decision of 17 July 2013 to be set aside. As the bond was distributed, the appropriate order is for Mr and Ms Brecknell to pay Mr and Mrs Oberg $1,580 within [21 days].
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