Toledo v Etienne

[2012] QCATA 146

CITATION: Toledo v Etienne [2012] QCATA 146

PARTIES:	Manuel Toledo (Applicant/Appellant)
v
Siegfried Etienne (Respondent)

APPLICATION NUMBER: APL042-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 16 August 2012

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal refused.

CATCHWORDS:

Minor Civil Dispute – tenancy matter – where applicant seeks to raise issues not before the original tribunal

Queensland Civil and Administrative Tribunal Act2009, ss 138, 142(3)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Etienne filed an application in the minor civil disputes jurisdiction of the Tribunal seeking to recover a bond paid in respect of rented premises at Ahern Street in Labrador.  Mr Toledo is the lessor. 

1. The application came on for hearing before a Tribunal Adjudicator on 16 August 2011.  Mr Toledo did not appear.  He did however write to the Tribunal advising that he could not attend because of a medical appointment.  The learned Adjudicator, in the exercise of discretion, refused to adjourn the matter because Mr Toledo did not provide any further information about his medical appointment, nor did he apply to attend by telephone which, she considered, he could easily have done.  Mr Toledo lives in New South Wales and leave to attend by telephone would have been granted. 

1. The matter proceeded and the learned Adjudicator was satisfied that Mr Etienne was entitled to a return of part of the bond money of $650.00 and an order was made accordingly. 

1. From that decision Mr Toledo has filed an application for leave to appeal or appeal.  In that application he relies on a number of matters to show that the Tribunal decision on 16 August 2011 was made in error.  He relies on certain factual matters that he contends that Mr Etienne was in arrears of rent from 30 April 2011 to 3 June 2012.  In addition, he claims advertising, carpet cleaning, stolen crockery and key replacement all because Mr Etienne left the rented premises before the expiration date of the residential tenancy being 20 July 2011.  He relied on the terms and conditions of the tenancy agreement to justify the recovery of cleaning costs.

1. It is interesting that through the appeal process Mr Toledo has sought to agitate new matters that were not brought up in the hearing below by way of a response to the respondent’s claim. Had Mr Toledo had a legitimate and reasonable excuse for not attending the Tribunal on the date of the hearing he could have applied for a reopening of the proceeding under section 138 of the QCAT Act. Instead, he has chosen to proceed by way of appeal. That being the case, and because this is an appeal from the minor civil disputes jurisdiction, leave to appeal is necessary. Leave will not be granted lightly particularly where it is sought to agitate those factual matters that ought to have been agitated in the hearing at first instance. For leave to be granted, the applicant must identify some error on the part of the original decision maker or alternatively convince the Appeal Tribunal there has been a substantial injustice.

1. Here, the learned Member acted properly and fairly in the absence of Mr Toledo, bearing in mind that the application had already been adjourned on one previous occasion when he did not attend.  The learned Adjudicator ensured that there was a proper assessment of the claim made by Mr Etienne and made orders to reflect that process by reducing the amount of the bond payable to him.

1. Mr Toledo has not been able to identify any error on the part of the learned Adjudicator in proceeding as she did and if he has a legitimate claim for arrears of rent, damage to property, cleaning etc, he is at liberty to bring a fresh application to recover those sums.  The Appeal Tribunal is not the place to pursue that claim.

1. In the circumstances leave to appeal is refused.