Scholefield v High Surf Resorts Pty Ltd

CITATION: Scholefield v High Surf Resorts Pty Ltd [2013] QCATA 157

PARTIES:	Ms Sarah Scholefield (Applicant/Appellant)
V
High Surf Resorts Pty Ltd (Respondent)

APPLICATION NUMBER: APL021 -13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 29 May 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Leave to appeal granted.

2.    Appeal allowed.

3.    The decision of 19 November 2012 is set aside.

4.    The proceeding is remitted to the tribunal in its minor civil dispute jurisdiction at Southport for hearing.

CATCHWORDS:

MINOR CIVIL DISPUTE – where tenant signed holiday let for 3 months – whether holiday let – whether Residential Tenancies and Rooming Accommodation Act applied to tenancy agreement – where application to Residential Tenancy Authority made shortly after alleged breach – where application to tribunal made more than 6 months after alleged breach – whether application within time.

Residential Tenancies and Rooming Accommodation Act 2008 ss 31(1), 417(2), 419

Dearman v Dearman (1908) 7 CLR 549;
Fox v Percy (2003) 214 CLR 118.

Chambers v Jobling (1986) 7 NSWLR 1

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

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

1. Ms Scholefield signed a three month holiday let for an apartment in Surfers Paradise. High Surf Resorts Pty Ltd managed the apartment. At some stage, Ms Scholefield left the apartment. High Surf changed the locks and put her goods into storage. She collected some of them but the balance went missing. Ms Scholefield filed a claim in the tribunal claiming damages for the loss of the goods. She also claimed return of a $1,400 bond. The tribunal dismissed Ms Scholefield’s claim.

2. Ms Scholefield wants to appeal that decision. She says the learned Adjudicator erred in finding that the tenancy agreement was not within the tribunal’s jurisdiction. She also says that the learned Adjudicator erred in finding that she had not made a claim within six months of becoming aware of High Surf’s breach of the tenancy agreement.

3. 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…