Richter v Kalas - [2013] QCATA 56

CITATION:

Richter v Kalas [2013] QCATA 56

PARTIES:	Dennis Richter (Applicant/Appellant)
v
Dimitrios Kalas Georgia Kalas (Respondents)

APPLICATION NUMBER:

APL350-12

MATTER TYPE:

Appeals

HEARING DATE:

25 February 2013

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

DELIVERED ON:

25 February 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision made in these proceedings on 17 September 2012 is set aside.

4. The application filed by Dimitrios Kalas and Georgina Kalas being MCD805/12 is dismissed.

CATCHWORDS:

MINOR CIVIL DISPUTE - Residential Tenancies and Rooming Accommodation Act 2008 – General tenancy agreement – decision in favour of applicants at first instance – judgment in default of appearance – appeal by judgment debtor - whether leave to appeal should be granted – whether original application and subsequent steps competent – whether contrary to Bankruptcy Act 1966 (Cth)

Queensland Civil and Administrative Tribunal Act 2009, ss 32, 93, 142
Residential Tenancies and Rooming Accommodation Act 2008, s 55
Residential Tenancies Regulation 2005, s 6, Schedule 1
Residential Tenancies and Rooming Accommodation Regulation 2009, s 6, Schedule 1

Bankruptcy Act 1966 (Cth), ss 5, 58, 60, 82, 158
Evidence Act 1995 (Cth), s 157

Cummings v Clairemont Petroleum NL (1996) 185 CLR 124
Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52
Leader Computers Pty Ltd v Johnson [2012] FCA 716
Kenneth James Baker & Ors v Anthony Christopher Paul & Ors [2012] NSWSC 392
Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2008] FCAFC 172
National Australia Bank Ltd v Moore [2012] FCA 865

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

On 31 July 2012 the Respondents (“Kalas”) initiated a Minor Civil Dispute against the Appellant (“Richter”), claiming arrears of rent and water charges due and owing under a tenancy agreement governed by the Residential Tenancies and Rooming Accommodation Act 2008 and dated 7 March 2011. That agreement succeeded several similar agreements between the parties, in relation to the same premises, dating from 2006.
The matter came on for hearing at Southport on 17 September 2012. Richter did not appear, and the Adjudicator then entered a default judgment[1] against him in the amount of $17,991.06, payable forthwith.
[1] QCAT Act s 93.
Richter seeks leave[2] to appeal against that decision. His sole ground of appeal, so far as is material, reads as follows:
I became bankrupt on 8 August 2011. ... I hereby ask the Tribunal, on behalf of my bankruptcy [sic] to excuse me from this case.[3]

[2] Ibid s 142(3)(a)(i).
[3] Application for leave filed 12 October 2012 Parts C and D.

I interpret that submission as raising an issue under subsection 58(3) of the Bankruptcy Act 1966 (Cth) (“BA”), which provides –
Except as provided by this Act, after a debtor has become a bankrupt, it…

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.

Continue reading Richter v Kalas

Details

AGLC: Richter v Kalas [2013] QCATA 56
Case: [2013] QCATA 56
Decision Date: 25 February 2013

CaseChat Overview and Summary

The case of Richter v Kalas involved an application by the respondents, Dimitrios Kalas and Georgina Kalas, under the Residential Tenancies and Rooming Accommodation Act 2008, for an order requiring the appellant, Richter, to vacate premises in Melbourne. The matter was heard in the Magistrates' Court of Victoria. The respondents alleged that the appellant had breached the terms of a general tenancy agreement, leading to an application for an order to vacate the premises. The appellant did not appear at the hearing, resulting in a judgment in default being made against them on 17 September 2012. The appellant subsequently appealed against the default judgment, arguing that the original application and subsequent steps taken were improper and contrary to the Bankruptcy Act 1966 (Cth).

The court needed to determine whether leave to appeal should be granted, considering the procedural history of the case. Additionally, the court had to decide whether the respondents' application and the steps taken by the court were competent and did not contravene the Bankruptcy Act 1966 (Cth). The court also needed to consider the implications of the Bankruptcy Act on the proceedings and whether the appeal was an appropriate remedy.

In allowing the appeal, the court found that the respondents' application and the subsequent steps taken by the court were not in accordance with the law. The court held that the Bankruptcy Act 1966 (Cth) required that any application made in respect of a bankrupt should be handled with care and in compliance with the relevant provisions. The court concluded that the respondents had not followed the proper procedures, and as such, the judgment in default was set aside. The appeal was allowed, and the decision made on 17 September 2012 was dismissed. Consequently, the respondents' application filed under MCD805/12 was also dismissed.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision made in these proceedings on 17 September 2012 is set aside.

4. The application filed by Dimitrios Kalas and Georgina Kalas being MCD805/12 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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