Zhao v Tatters - [2019] QCATA 10

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION: Zhao v Tatters & Ors [2019] QCATA 10

PARTIES:
WEI ZHAO

(appellant)

v

ROBYN TATTERS OLIETA POUHA

CENTENARY REAL ESTATE PTY LTD
(respondents)

APPLICATION NO/S: APL011-18

ORIGINATING APPLICATION NO/S: Claim T452-17 (Richlands)

MATTER TYPE: Appeals

DELIVERED ON: 29 January 2019

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Gordon

ORDERS:
Leave to appeal against the decision made on

13 December 2017 in Claim T452-17 Richlands is refused. The appeal therefore fails.

CATCHWORDS:
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – leave to

appeal – where applicant had English as a second language but there was no interpreter at the hearing as she had requested in her application – where a telephone interpreter was arranged for the hearing at short notice but left before the decision was delivered with oral reasons – where applicant was given the respondents material in response at the hearing rather than beforehand – whether there was a breach of procedural fairness – whether any reasonably arguable grounds of appeal

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – OTHER MATTERS –

where Rule 44 of the tribunal rules require a response to an application ‘other than a minor debt claim’ to be made within a stated period of time – whether this rule applies to a minor civil dispute like a tenancy matter – whether

presenting response material at the hearing of a tenancy matter was a breach of the rule

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 4(e), s 29, s 95, s 122(2), s 123

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 43, r 44

Chandra v Queensland Building and Construction Commission [2014] QCA 335

REPRESENTATION:

Appellant: Self-represented

Respondent:
Robyn Tatters: No appearance Olieta Pouha: No appearance

Centenary Real Estate Pty Ltd: Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the

Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

This is an appeal in a tenancy matter heard by an Adjudicator on 13 December 2017 sitting in Richlands. The claim before the Adjudicator was brought by Wei Zhao as lessor against her former tenants, Olieta Pouha and Robyn Tatters. The lessor also brought a claim against the agents, Centenary Real Estate.
The claim against the tenants was for compensation of $20,727.77 being:-
1. Unpaid rent and damages for the period until actual recovery of possession, totally amount of $4,760.

2. Compensation of water usage fee plus interest, totally amount of
$2,908.97.

3. Compensation of cleaning and repairing for $5,338.80.

4. Compensation of unleased loss for the period of the repair, totally $6,720.

5. Application fee and legal fee, approximately $1,000.

The basis of the claim was that the fixed term of the tenancy was to continue to 17 October 2017 but was terminated early following notices to remedy and a notice to leave issued…

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 Zhao v Tatters 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: [2019] QCATA 10
Decision Date: 29 January 2019

CaseChat Overview and Summary

Zhao filed an application for leave to appeal against a decision made by the Tribunal in a tenancy dispute. The Tribunal dismissed the applicant's appeal on the basis that there were no reasonably arguable grounds of appeal. The applicant argued that the Tribunal had breached the rules of natural justice and procedural fairness, and that the Tribunal's decision was wrong in law or on the facts. The primary judge found that the Tribunal's decision was open to the Tribunal and was not flawed by any procedural unfairness.

The primary issue in the case was whether the Tribunal's decision was open and whether there were any reasonably arguable grounds of appeal. The applicant argued that the Tribunal had breached procedural fairness by not providing an interpreter as requested, and by providing the respondent's material at the hearing rather than beforehand. The applicant also argued that the Tribunal erred in law by applying a rule that was not applicable to minor civil disputes like tenancy matters. The primary judge found that the Tribunal's decision was open and that there were no reasonably arguable grounds of appeal.

The primary judge found that the Tribunal's decision was open and not flawed by any procedural unfairness. The judge found that the applicant had not established that the absence of an interpreter at the hearing resulted in a breach of procedural fairness. The judge also found that the applicant had not established that the Tribunal erred in law by applying a rule that was not applicable to minor civil disputes. The judge found that the applicant had not established any reasonably arguable grounds of appeal.

Leave to appeal against the decision made on 13 December 2017 in Claim T452-17 Richlands is refused. The appeal therefore fails.

Orders

Orders of the court

Leave to appeal against the decision made on

13 December 2017 in Claim T452-17 Richlands is refused. The appeal therefore fails.

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:	Zhao v Tatters & Ors [2019] QCATA 10
PARTIES:	WEI ZHAO (appellant)
v
ROBYN TATTERS OLIETA POUHA CENTENARY REAL ESTATE PTY LTD (respondents)
APPLICATION NO/S:	APL011-18
ORIGINATING APPLICATION NO/S:	Claim T452-17 (Richlands)
MATTER TYPE:	Appeals
DELIVERED ON:	29 January 2019
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Gordon
ORDERS:	Leave to appeal against the decision made on 13 December 2017 in Claim T452-17 Richlands is refused. The appeal therefore fails.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – leave to appeal – where applicant had English as a second language but there was no interpreter at the hearing as she had requested in her application – where a telephone interpreter was arranged for the hearing at short notice but left before the decision was delivered with oral reasons – where applicant was given the respondents material in response at the hearing rather than beforehand – whether there was a breach of procedural fairness – whether any reasonably arguable grounds of appeal PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – OTHER MATTERS – where Rule 44 of the tribunal rules require a response to an application ‘other than a minor debt claim’ to be made within a stated period of time – whether this rule applies to a minor civil dispute like a tenancy matter – whether presenting response material at the hearing of a tenancy matter was a breach of the rule

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 43, r 44 Chandra v Queensland Building and Construction Commission [2014] QCA 335
REPRESENTATION:
Appellant:	Self-represented
Respondent:	Robyn Tatters: No appearance Olieta Pouha: No appearance Centenary Real Estate Pty Ltd: Self-represented
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).