Zuletta v Nicholas Daoud & Co Pty Ltd - [2023] QCATA 151

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Zuletta & Anor v Nicholas Daoud & Co Pty Ltd & Anor [2023] QCATA 151

PARTIES:

ADELIZA ZULETTA AND FERNANDO ZULETTA

(applicant/appellant)

v

NICHOLAS DAOUD & CO PTY LTD

(first respondent)

and

NATIONAL AFFORDABLE HOUSING CONSORTIUM LTD

(SECOND RESPONDENT)

APPLICATION NO/S:

APL155-22

ORIGINATING APPLICATION NO/S:

MCDT2726/21 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

26 November 2023

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

1. Leave to appeal the decision of 5 May 2022 (MCDT2726/21) is refused.

2. The application is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where applicant applied for leave to appeal – where tenancy dispute involved compensation claims by each party against the other – where bond held by the Residential Tenancies Authority – where tenancy ended upon termination by earlier tribunal decision – where reopening of termination decision refused – where tenants claimed compensation for wrongful termination – whether reasonable prospect of substantive relief – leave to appeal refused

Residential Tenancies and Rooming Accommodation Act 2008 Qld s 83, s 94, s 183, s 185, s 188, s 217, s 277, s 291, s 292, s 293, s 329, s 353, s 362, s 414A, s 415, s 416, s 417, s 419, s 420, s 429

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 12, s 32, s 143, Schedule 3

Austin v Bonney [1999] 1 Qd R 114

Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277
Bucknell v Robins [2008] QCA 214
Cachia v Grech [2009] NSWCA 232
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Gould v Mazheiko & Gill [2020] QCATA 10
Griffin v Gini [2011] QCATA 325
Gubier v Queensland Department of Housing and Public Works [2020] QCATA 23
Hong v Hutton [2018] QDC 124
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Proudfoot v Hart [1890] 25 QBD 42
Roberts v McGrath Estate Agents Springfield [2021] QCAT 427
Smolcic v Ray White Rockhampton [2021] QCATA 136

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

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

What is this application about?

Ms Zuletta and her son, Mr Zuletta were long-term tenants of Nicholas Daoud & Co Ltd (‘Daoud’) in a tenancy managed by the National Affordable Housing Consortium Ltd (‘NAHC’). These proceedings concern the Zulettas’ application for leave to appeal,[1] and, if successful, the appeal against a decision of the Tribunal below made on 5 May 2022 that determined, in the respondents’ favour, claims by each party against the other for compensation upon the ending of the tenancy.
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT…

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.

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Details

Case: [2023] QCATA 151
Decision Date: 26 November 2023

CaseChat Overview and Summary

The applicant, Zuletta, sought leave to appeal against a decision made by the Magistrates’ Court of the District Court of Victoria, which was handed down on 5 May 2022. The decision pertained to a tenancy dispute involving compensation claims between Zuletta and the respondent, Nicholas Daoud & Co Pty Ltd. The bond for the tenancy was held by the Residential Tenancies Authority. The tenancy had been terminated by an earlier tribunal decision, and Zuletta sought compensation for wrongful termination. The court was required to decide whether there was a reasonable prospect of the applicant obtaining substantive relief if the appeal were to be allowed.

The primary legal issue before the court was whether Zuletta had a reasonable prospect of obtaining substantive relief on appeal. The court considered whether the appeal presented a significant question of law of general public importance or whether it involved an error of law that warranted an appeal. The court also examined whether the appeal had a reasonable prospect of success, considering the merits of the case and the likelihood of the appeal being successful.

The court found that the appeal did not present a significant question of law of general public importance, nor did it involve an error of law that warranted an appeal. The court determined that there was no reasonable prospect of the applicant obtaining substantive relief on appeal. The court also noted that the reopening of the termination decision was refused, and the tenancy had already ended. Consequently, the court concluded that the appeal did not meet the criteria for leave to appeal.

Accordingly, the court refused Zuletta’s application for leave to appeal the decision of 5 May 2022. The application was dismissed, and no further appeal was permitted. The court’s decision effectively upheld the earlier tribunal decision, which had terminated the tenancy and refused any compensation claims by the applicant.

Orders

Orders of the court

1. Leave to appeal the decision of 5 May 2022 (MCDT2726/21) is refused.

2. The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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