Southbank Property Pty Ltd v Begley
[2011] QCATA 327
•29 November 2011
| CITATION: | Southbank Property Pty Ltd v Begley and Anor [2011] QCATA 327 |
| PARTIES: | Southbank Property Pty Ltd trading as Harcourts Proactive Results (Applicant/Appellant) |
| v | |
| Ms Diana Begley Mr David Begley (Respondents) |
| APPLICATION NUMBER: | APL272-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 29 November 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS: | Minor Civil Dispute – tenancy matter – where applicant contends it did not have notice of the hearing – where Tribunal satisfied that as to service of the notice of hearing – where responsibility on party to a proceeding to monitor the progress of the proceeding – no error established Queensland Civil and Administrative Tribunal Act2009, s 142(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
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 Act2009 (QCAT Act).
REASONS FOR DECISION
Harcourts is the managing agent for a rental property at 51 Ormadale Road, Yeronga. The Begleys commenced renting the property in December 2010. The weekly rent was $705 per week.
On the commencement of the tenancy the Begleys had experienced problems with the property because of its age and condition which included a possum infestation. Those problems were compounded with the Brisbane floods in January 2011 when the lower part of the house, it being a two storey dwelling, was inundated with flood waters. The Begleys had to move out for a period but did return to the property and ultimately vacated it completely in early March 2011.
They sought to negotiate a return of the bond from Harcourts but the parties were unable to agree and therefore, the Begleys commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal claiming a return of the bond money, reimbursement of expenses, rent adjustment and reimbursement of excess rent paid. The total claim was $13,100. This included the application fee.
In the usual way the Begleys and Harcourts tried to resolve the issues in dispute through mediation with the assistance of the Residential Tenancies Authority. The matter was not resolved and the application was then listed for hearing.
The minor civil disputes file indicates on 30 May 2011 the hearing notice was sent to Harcourts, at the address stipulated in the appeal application, at 1/162 Boundary Street, West End. The hearing notice was not returned to the Tribunal.
When the matter came on for hearing on 11 July 2011 there was no appearance by Harcourts. The learned Adjudicator who heard the matter satisfied herself that service had been effected and made specific reference to the certificate of service which was on the file. She in fact asked the Begleys whether they had had any contact with Harcourts subsequent to the mediation to which they replied they had not. Being satisfied as to service, and the fact that Harcourts were aware of the proceeding that was on foot, she then decided to proceed to hear the matter.
The claim was amended with a significant reduction of the amount claimed which was relief of rent and over payment of rent together with the return of the bond. The learned Adjudicator considered the evidence that was placed before her, gave reasons for her decision and made an order that the bond be returned, the overpaid rent be refunded and the Begleys be compensated by way of a reduction in rent due to the flooding.
On receipt of the decision, Harcourts applied for a reopening on the grounds that they had not received a copy of the notice of hearing. They claim that the owner of the property was overseas and that the decision of the Tribunal had financial consequences for her. This is undoubtedly correct. A Tribunal Adjudicator considered the application to reopen, together with an application to stay the decision and on considering that material refused the application. Having reviewed the material put before that Adjudicator, there is nothing to suggest that the discretion to refuse the reopening miscarried. He specifically relied, as did the Adjudicator who conducted the hearing, on the fact that the notice of hearing had been served on Harcourts.
Harcourts then filed an application for leave to appeal or appeal the learned Adjudicator’s decision of 11 July 2011. Leave to appeal is necessary. The basis of the appeal is the same as that relied upon for the application to reopen, that is no notice of the hearing date. The orders sought are that the bond be paid to the owner and that the Begleys pay to the owner $3,430 in repairs made to the property.
[10] The only basis upon which leave to appeal could be granted is if there was in fact a denial of natural justice in that this Tribunal was satisfied that Harcourts did not have notice of the hearing. 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 to the applicant caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appellate court or 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.
[11] I have read the transcript of the proceeding before the learned Adjudicator on 11 July 2011. It is clear that she considered the question of service and made a decision to proceed being satisfied that Harcourts had been served with a notice of hearing. Harcourts have not put forward any arguments in this application for leave to appeal other than the assertion that they had not been served with the notice of hearing. This submission, given what has gone on before, does not warrant this Appeal Tribunal interfering with the decision by the learned Adjudicator to proceed with the hearing.
[12] This is reinforced by the fact that Harcourts were not only aware of the proceeding but it also engaged in a mediation process with the Residential Tenancies Authority. They are experienced property managers and would have been aware that the application would proceed to a hearing in the Tribunal and it was in their interest to monitor the progress of the proceeding. The notice of hearing was sent to the correct address, was not returned to the Tribunal and therefore it must have been received by Harcourts within sufficient time for it to attend to have notice of the hearing.
[13] The final decision by the learned Adjudicator was open to her to make on the evidence before her, which I have reviewed. Harcourts have not established any error on the part of the learned Adjudicator nor is any error apparent on reviewing the material that was placed before her.
[14] In the circumstances, leave to appeal should be refused.
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