SBT v Bernats Lewis Real Estate - [2022] QCATA 71

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION

SBT v Bernats Lewis Real Estate & Ors [2022] QCATA 71

PARTIES: SBT

(applicant)

v

bernats lewis real estate, roxanne wagner and jose navas

(respondents)

APPLICATION NO:

APL279-21

MATTER TYPE:

Residential tenancy matters

DELIVERED ON:

3 June 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

The application for leave to appeal is dismissed

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where claim for compensation by lessor – where lessor alleges damage to premises by tenant – where cross-claim by tenant alleging premises unfit for habitation – where lessor’s claim reduced – where lessor’s evidence defective for want of entry report and claim substantially reduced - where tenant’s cross claim dismissed as out of time - where tenant seeks leave to appeal dismissal of her cross claim – whether jurisdiction to hear and determine cross claim

Queensland Building and Construction Commission Act 1991 (Qld) s 77
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 61, s 143
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 419
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Baxter v NSW Clickers Association (1909) 10 CLR 114
David Grant & Co Pty Ltd v Westpac Banking Corporation & Anor (1995) 184 CLR 265

Drew v Bundaberg Regional Council [2011] QCA 359

Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330

Hope v Brisbane City Council [2013] QCA 198

McGarry v Coates [2013] QCATA 32
MW v CGW (1982) 151 CLR 491
Nunn v Baker (1987) 518 So Jo 711
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369
Queensland Building Services Authority v Robuild Pty Ltd [2013] QCATA 238
Queensland Building and Construction Commission v Watkins [2014] QCA 142

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113
Thorpe v Charles Sturt City Corporation (1999) 103 LGERA 395
Wall v the Queen; Ex parte King Won (No 1) (1927) 39 CLR 245
Watkins v Queensland Building Services Authority [2013] QCAT 535

Wickson v Hunter Builders Pty Ltd [2019] QCATA 154

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

Introduction

In 2020-2021 the applicant (`SBT’) was lessee of a residence at Beenleigh (`the property’) owned by the respondents Wagner and Navas and managed by estate agents Bernats Lewis Real Estate. For convenience I shall refer to the respondents collectively as `Bernats’.
The landlord-tenant relationship was not particularly amicable. In August 2021 Bernats began action against SBT, claiming $1,280[1] for neglect of and damage to the property.[2]
[1]The full amount of the rental bond.
[2]Application by Bernats for minor civil dispute (residential tenancy…

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.

Keep reading for free

Create a free CaseChat account to read SBT v Bernats Lewis Real Estate and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] QCATA 71
Decision Date: 3 June 2022

CaseChat Overview and Summary

The case before the court involved a dispute between SBT, the lessor, and Bernats Lewis Real Estate, the tenant, concerning damage to a residential property. The lessor had filed a claim for compensation, alleging that the tenant had caused damage to the premises. In response, the tenant filed a cross-claim asserting that the premises were unfit for habitation. The lessor's claim was reduced due to a lack of an entry report and other defective evidence, while the tenant's cross-claim was dismissed as untimely. The tenant then sought leave to appeal the dismissal of her cross-claim, raising the question of whether the court had jurisdiction to hear and determine the cross-claim.

The central legal issue before the court was whether it had the jurisdiction to hear and determine the tenant's cross-claim, which had been dismissed as out of time. The court needed to consider the procedural history of the case and the applicable statutory provisions governing the timeliness of cross-claims in minor civil disputes. Additionally, the court had to assess the impact of the lessor's defective evidence on the overall claim and the implications for the tenant's cross-claim.

The court found that it did not have jurisdiction to hear and determine the tenant's cross-claim, as it had been dismissed as out of time. The court held that the statutory provisions governing minor civil disputes did not permit the court to entertain a cross-claim that had not been properly filed within the prescribed time limits. The court also noted that the lessor's defective evidence had led to a substantial reduction in the claim, which further supported the dismissal of the tenant's cross-claim. Consequently, the court dismissed the application for leave to appeal.

The court dismissed the application for leave to appeal, confirming that it did not have jurisdiction to hear and determine the tenant's cross-claim, which had been dismissed as out of time. The court also confirmed that the statutory provisions governing minor civil disputes did not permit the court to entertain a cross-claim that had not been properly filed within the prescribed time limits. The court further noted that the lessor's defective evidence had led to a substantial reduction in the claim, which supported the dismissal of the tenant's cross-claim.

Orders

Orders of the court

The application for leave to appeal is dismissed

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	SBT v Bernats Lewis Real Estate & Ors [2022] QCATA 71
PARTIES:	SBT
(applicant)
v
bernats lewis real estate, roxanne wagner and jose navas
(respondents)
APPLICATION NO:	APL279-21
MATTER TYPE:	Residential tenancy matters
DELIVERED ON:	3 June 2022
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Dr J R Forbes
ORDERS:	The application for leave to appeal is dismissed
CATCHWORDS:	APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where claim for compensation by lessor – where lessor alleges damage to premises by tenant – where cross-claim by tenant alleging premises unfit for habitation – where lessor’s claim reduced – where lessor’s evidence defective for want of entry report and claim substantially reduced - where tenant’s cross claim dismissed as out of time - where tenant seeks leave to appeal dismissal of her cross claim – whether jurisdiction to hear and determine cross claim Queensland Building and Construction Commission Act 1991 (Qld) s 77 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 61, s 143 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 419 Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Baxter v NSW Clickers Association (1909) 10 CLR 114 David Grant & Co Pty Ltd v Westpac Banking Corporation & Anor (1995) 184 CLR 265 Drew v Bundaberg Regional Council [2011] QCA 359 Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330 Hope v Brisbane City Council [2013] QCA 198 McGarry v Coates [2013] QCATA 32 MW v CGW (1982) 151 CLR 491 Nunn v Baker (1987) 518 So Jo 711 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 Queensland Building Services Authority v Robuild Pty Ltd [2013] QCATA 238 Queensland Building and Construction Commission v Watkins [2014] QCA 142 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113 Thorpe v Charles Sturt City Corporation (1999) 103 LGERA 395 Wall v the Queen; Ex parte King Won (No 1) (1927) 39 CLR 245 Watkins v Queensland Building Services Authority [2013] QCAT 535 Wickson v Hunter Builders Pty Ltd [2019] QCATA 154
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)