Rental HQ v Sanghera
[2023] QCATA 150
•27 November 2023
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Rental HQ v Sanghera [2023] QCATA 150
PARTIES:
RENTAL HQ (applicant/appellant)
v
MALKIT SINGH SANGHERA (respondent)
APPLICATION NO/S:
APL111-22
ORIGINATING APPLICATION NO/S:
T 084 of 2022
MATTER TYPE:
Appeals
DELIVERED ON:
27 November 2023
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Judicial Member WA Isdale
ORDERS:
Application for leave to appeal is dismissed.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where an application was made disputing costs associated with finalising a residential tenancy – where the Adjudicator ordered the rental agency to return to the tenant rent overcharges of $840 within 21 days – where the rental agency seeks leave to appeal on the grounds of fresh evidence – where the parties were non-compliant with directions ordered by the Tribunal related to fresh evidence
APPEARANCES & REPRESENTATION:
This 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
This is an appeal by Rental HQ from a decision of an Adjudicator given ex tempore after a hearing conducted using a telephone link on 13 April 2022.
After hearing the parties, the Adjudicator gave the decision and the reasons for that decision. Orders were made and put in writing by the Tribunal.
The applicant, Malkit Singh Sanghera, had brought a claim against the respondent, the name of which was corrected to Rental HQ during the hearing, in connection with the costs of finalising a residential tenancy.
The claim had several aspects. Firstly, there was a claim for a $500 bond refund in respect of the property at 74 Ridgewood Road, Algester. Secondly, there was a claim for loss of amenity and, thirdly, a claim for a refund of some rental.
There was no dispute at the hearing that the order substituting the correct respondent should be made and it was agreed that the order that the $500 rental bond be refunded should be made.
The Adjudicator found that the claim for loss of amenity was made outside of the allowable time in which to do so. Accordingly, that claim was dismissed.
The Adjudicator made a further order, that the respondent pay the applicant $840 within 21 days.
It is in relation to this last order only that Rental HQ seeks leave to appeal.
The Adjudicator found that rent for two weeks was claimed by Rental HQ for the period after Mr Sanghera left the premises. During this period a friend of Mr Sanghera was staying in the property. The Adjudicator found that there was an agreement that the friend, Mr Govinda, could stay for the two weeks. Mr Sanghera was not a party to this agreement and did not consent to it. The Adjudicator also found that Mr Sanghera did not return the keys to Rental HQ so had not handed over vacant possession of the property.
The Adjudicator found that, despite the failure to provide vacant possession, the agreement to which Mr Sanghera was not a party showed that there was a waiver by Rental HQ of the right to insist on the payment of rent by Mr Sanghera during this period. Accordingly, the $840 which Rental HQ had obtained from him in respect of it must be repaid to him.
Rental HQ seeks to appeal this order. The key aspect of the grounds of appeal is that Mr Sanghera was actually aware of the two-week extension.
In support of this, Rental HQ has provided a copy of an e-mail from it to Malkit Sanghera at 5:18pm on 13 January 2022.
This e-mail states that “…your lease has been extended to 02/02/2022…” It states that the rent owing to vacate is $840, and there is also the amount of a water invoice.
Also provided is a copy of a “Tenant History” accounting record which shows the payment on 20 January 2022 of rent up to 2 February 2022 as well as the amount of the water invoice.
An e-mail to QCAT from Mr Sanghera, and dated 16 June 2022, contains some submissions. Relevantly, he submits that the did not request any extension of the term of the tenancy.
The material provided by Rental HQ in support of its application for leave to appeal was not put before the Adjudicator at the hearing. There is no explanation for why that did not occur. The e-mail is dated 13 January 2022 and the Tenant History has the last entry dated 20 January 2022. The hearing took place on 13 April 2022.
The directions given for the conduct of this application for leave to appeal were given on 20 May 2022. Direction 7 is relevant for present purposes. It provides that:
(a)If either party seeks leave to rely upon evidence or a document that was not before the Tribunal below (‘fresh evidence’), they shall file in the Tribunal one (1) copy and serve on the other party one (1) copy of an application for leave to rely upon fresh evidence, together with a copy of the fresh evidence. The application shall include submissions about:
i. why the fresh evidence was not available to the Tribunal below;
ii. why the fresh evidence is important; and
iii. why the fresh evidence should be accepted.
(b)If an application for leave to rely upon fresh evidence is filed, [the/each] other party may file and serve written submissions in response within 21 days of the date the application for leave to rely upon fresh evidence is filed.
(c)Unless otherwise ordered, any application for leave to rely upon fresh evidence will be heard and determined together with the application for leave to appeal or appeal.
The above direction, designed to ensure a fair process, was not complied with in that the application and submissions required for Directions 7(a)(i), (ii), and (iii) have not been provided. Accordingly, this application for leave to appeal falls to be determined without reference to the material which was not before the Adjudicator. The applicant, not having complied with Direction 7, must accept the consequences of that.
Accordingly, no basis has been shown upon which the decision of the Adjudicator could be found to be incorrect so the application for leave to appeal must be dismissed. There is no material able to be relied on to support the ground of appeal as the necessary process to rely on fresh evidence was not followed.
Order
Application for leave to appeal is dismissed.
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