Realgo Investments Pty Ltd v Daley
[2013] QCATA 211
•30 July 2013
| CITATION: | Realgo Investments Pty Ltd v Daley [2013] QCATA 211 |
| PARTIES: | Realgo Investments Pty Ltd t/as Realway Property Consultants Rockhampton (Applicant/Appellant) |
| V | |
| Mr Martin Daley Mrs Samantha Daley (Respondents) |
| APPLICATION NUMBER: | APL043 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Hornemann-Wren SC, Deputy President |
| DELIVERED ON: | 30 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The time for filing the ‘Application for leave to appeal or appeal’ is extended to 22 January 2013. 2. Leave to appeal granted. 3. Appeal allowed. 4. The decision of 4 December 2012 is set aside. 5. Mr and Mrs Daley’s application for compensation is dismissed. 6. No order as to costs. |
| CATCHWORDS: | APPEALS – MINOR CIVIL DISPUTE – where tenants moved into property – where property was unfit to live in – where tenancy terminated – where the tenants filed an application for compensation for the storage of their personal property – where the Tribunal ordered the lessor pay the tenants compensation – where the lessor appealed the Tribunal’s decision – where the application for compensation was filed out of time – where the application for compensation filed without a dispute resolution request – whether leave to appeal should be granted APPEALS – MINOR CIVIL DISPUTE – COSTS – where the lessor did not attend a hearing in the original proceedings – where the lessor was unprepared, had no knowledge of the facts and made no submissions at the subsequent hearing – where the tenants incurred costs – whether an order should be made as to costs Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited |
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 Mrs Daley agreed to rent a home managed by Realgo Investments Pty Ltd. When they arrived to take possession, they found the home unfit to live in. On 30 January 2012, Realgo agreed that Mr and Mrs Daley could terminate their tenancy and the bond would be refunded to them.
Mr and Mrs Daley had already arranged for their furniture and goods to be transported to their proposed new home. When the tenancy was terminated, Mr and Mrs Daley placed their furniture and goods in storage. On 20 August 2012, Mr and Mrs Daley filed a claim for compensation. A Magistrate, sitting as an ordinary member of the tribunal, ordered Realgo to pay Mr and Mrs Daley $4,190.
Realgo wants to appeal the learned Magistrate’s decision. It says that the learned Magistrate erred because Mr and Mrs Daley did not make a dispute resolution request as required by s 416 of the Residential Tenancies and Rooming Accommodation Act 2008. It also says that the learned Magistrate erred because Mr and Mrs Daley’s application for compensation is out of time under s 419 of the RTRA.
Mr and Mrs Daley resist the application for leave to appeal. They say that Realgo did not take this case seriously until the order for compensation was made. They wonder why the issues of non-compliance were not raised earlier and why the tenancy advice service they consulted did not raise these issues.
The original file shows that Realgo filed an ‘Application to review a decision’ within time. The Tribunal advised that this was the incorrect form. Realgo then filed the correct document, an ‘Application for leave to appeal of appeal’, shortly after. There was no significant delay. Mr and Mrs Daley are frustrated, and they point to costs they incurred in the earlier hearing, but they do not point to any disadvantage if the time for filing the application for leave to appeal is extended. Therefore, the time for filing the application for leave to appeal is extended to 22 January 2013.
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?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]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 operation of ss 416 and 419 are strict. The Tribunal cannot hear a non-urgent application unless the party has first made a dispute resolution request. Mr and Mrs Daley did not make such a request. The Tribunal cannot consider a claim for compensation for breach that is made more than 6 months after the breach came to the party’s attention. Mr and Mrs Daley knew about the condition of the tenancy in January 2012. They filed the claim in August 2012. Their application was too late. Because Realgo did not properly prepare for the hearing, did not make proper submissions and did not assist the learned Magistrate, he was led into error. Leave to appeal should be granted and the appeal allowed. The decision of 4 December 2012 should be set aside.
This appeal could have been avoided if Realgo had properly participated in the proceedings below. Its representative was late for mediation and failed to appear at the first hearing of the dispute. The agent who appeared at the final hearing was unprepared, had no knowledge of the facts, and made no submissions about the matters that are now argued before the Appeal Tribunal.
Realgo’s lack of diligence continued into this application. It did not file the application within time because, it says, the registry directed it to the wrong form. It has applied for an extension of time for the filing of the application for appeal. Further, it did not comply with the directions to file material in this appeal and requested an extension of time in which to comply.
In their submissions Mr and Mrs Daley refer to lost income and child minding fees that they incurred because Realgo did not appear at the first hearing. They had to respond to this application because Realgo did not identify the problems with their application earlier. Although Mr and Mrs Daley have not explicitly made an application for costs, it is a matter that the Tribunal considers it should turn its mind to.
The original proceedings were in the Tribunal’s Minor Civil Dispute jurisdiction. Whilst s 102(1) of the QCAT Act confers a broad general discretion upon the Tribunal to award costs if the Tribunal considers the interest of justice require it to make the order, that general discretion is confined by s 102(2) of the QCAT Act and r 83 of the Queensland Civil and Administrative Tribunal Rules 2009, in respect of matters in the Tribunal’s Minor Civil Dispute jurisdiction. The lost income and child minding fees which Mr and Mrs Daley incurred were in the original proceedings. They are not costs that are able to be recovered in a Minor Civil Dispute proceeding.[5]
[5] QCAT Act s 102(2), QCAT Rules r 83.
No order can be made in regards to those costs in the proceedings below. There should be no order as to costs in the appeal proceedings.
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