A M LIU and JCD Property Group v Vibhakar [2025] QCATA 13

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: A M LIU and JCD Property Group v Vibhakar [2025] QCATA 13 PARTIES: A M LIU AND JCD PROPERTY GROUP (applicant) v VIKTORIA VIBHAKAR (respondent) APPLICATION NO: APL370-23 ORIGINATING APPLICATION NO: MCDT249-23 MATTER TYPE: Appeals DELIVERED ON: 13 February 2025 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judicial Member Stilgoe OAM ORDERS: 1. Leave to appeal is refused. CATCHWORDS: APPEAL – GENERAL PRINCIPLES – where there was a minor civil dispute relating to a residential tenancy - where the Tribunal, at first instance, awarded $4,523.50 – where the applicant appealed on multiple grounds – whether due process was followed – whether the Tribunal’s decision was ‘fair and just’ – whether the Tribunal made a mistake of fact – whether there was an agreement – where leave to appeal dismissed. Queensland Civil and Administrative Tribunal Act 2009, s 13, s 142 Residential Tenancies and Rooming Accommodation Act 2008 Dearman v Dearman (1908) 7 CLR 549 Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 Felthouse v Bindley (1962) 11 CBNS 869 Fox v Percy (2003) 214 CLR 118 Glass v Pioneer Rubber Works of Australia Ltd [1906] VLR 754 Haynes v McNeil (1906) 8 WALR 186 House v The King (1936) 55 CLR 499 Kioa v West (1985) 159 CLR 550 Lovell v Lovell (1950) 81 CLR 513 -- 1 of 5 -- 2 Pickering v McArthur [2005] QCA 294 W A Dewhurst & Co Pty Ltd v Cawrse [1960] VR 278 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 [1] In February 2022, Viktoria Vibhakar entered a ‘General Tenancy Agreement’ for an apartment in Brisbane. This apartment was, and continues to be, managed by JCD Property Group on behalf of A M Liu (together ‘the Lessor’). [2] On 30 January 2023, Ms Vibhakar filed an ‘application for minor civil dispute – residential tenancy’. She wanted $4,808 under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) for claims relating to the fitness for habitation and good repair of her rental property. [3] On 19 October 2023, the Tribunal ordered that the Lessor pay Ms Vibhakar $4,523.50 (the amount claimed, minus filing fees and interest). [4] The Lessor appealed this decision stating that: (a) due process was not followed as allowances were made for Ms Vibhakar, but not for it; (b) the decision was ‘not fair and just’; (c) Ms Vibhakar submitted false information; and (d) an agreement had been reached by the parties settling the matter. [5] Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary.1 Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [6] For the reasons below, I am not persuaded that the Tribunal’s decision was made in error, nor is an appeal is necessary to correct a substantial injustice. Leave to appeal should be refused. Did the Tribunal follow due process? [7] The Lessor argues that the Tribunal did not follow ‘due process’ as allowances were made for Ms Vibhakar, but not for it. [8] Due process is the conduct of legal proceedings that, in line with established principles, aims to ensure a fair trial. It is also referred to as procedural fairness. [9] As Mason J (as his Honour then was) observed in Kioa v West,3 the requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal in question: 1 Queensland Civil and Administrative Tribunal Act, s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294, [3]. 3 (1985) 159 CLR 550, 584-585. -- 2 of 5 -- 3 “What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-3; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311, 319-321. In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.” [10] The Lessor has provided no evidence or submissions to substantiate its argument that the Tribunal did not act appropriately in the circumstances. On the contrary, the Lessor failed to attend the hearing on 19 October 2023, despite adequate notice and several adjournments. [11] The Lessor has also not provided any evidence or submissions to substantiate its claim that allowances were made for Ms Vibhakar, but not for it. [12] I am satisfied that the Tribunal provided procedural fairness for both parties. Was the decision fair and just? [13] The transcript of the proceedings shows that the Tribunal considered the requirement under section 13 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to ‘make an order that it considers fair and equitable to the parties…’. ADJUDICATOR BANCROFT: “… I must be fair and equitable under section 13 of the QCAT Act and I have beared that mind [sic]. The applicant’s [Ms Vibhakar] claim is not unreasonable and it is fair … there was an obligation for the property manager to be far more proactive in the circumstances.” [14] I am satisfied that the Tribunal gave sufficient thought to the requirement to make a decision that was ‘fair and just’, and I can find no reason to come to a contrary view. Did the Tribunal make a mistake of fact? [15] The Lessor argued that Ms Vibhakar submitted false information to the Tribunal. [16] The Appeal Tribunal will usually not disturb findings of fact where there is evidence capable of supporting a decision-maker’s conclusions and there is evidence capable of supporting any inferences underlining it.4 [17] The Lessor has not provided evidence to substantiate its claim that Ms Vibhakar’s evidence was false, nor has it provided details as to which of her submissions were untrue. [18] Noting the extensive submissions provided, including various emails, text exchanges and photographs of the property, I am satisfied that the evidence is capable of supporting the Tribunal’s decision and I can find no mistake of fact. Agreement between the Parties [19] The final ground raised by the Lessor is that the parties had reached an agreement prior to the hearing, and, as such, the order should be set aside. 4 Dearman v Dearman (1908) 7 CLR 549, 561-2; Fox v Percy (2003) 214 CLR 118, 125-6. -- 3 of 5 -- 4 [20] The basic principles of contract require two elements; offer, and acceptance. That is, there must be a clear indication (‘offer’) by one party of a willingness to be bound on certain terms accompanied by an unqualified assent to that offer by the other party (‘acceptance’). [21] On the evidence before me I am satisfied that the Lessor made an offer. I am not, however, satisfied that Ms Vibhakar accepted this offer. [22] In her email dated 10 June 2023, Ms Vibhakar specifically expressed that she was not comfortable to accept their offer: “Thank you for your message and for the offer. This is not something I would be comfortable in accepting as is…” [23] The offer and acceptance must precisely correspond. Any departure from the offer will result in the purported acceptance being ineffective. In essence, instead of acceptance, Ms Vibhakar’s response amounted to a ‘counter-offer’ which was, likewise, not accepted by the Lessor. [24] On 19 June 2023, Ms Vibhakar received an amended offer. She did not respond to this email. [25] Silence cannot amount to acceptance, unless it is accompanied by conduct which indicates that a contractual relationship had arisen between the parties.5 The formation of agreement may be inferred from the conduct of the parties where their conduct is consistent with the hypothesis that an agreement was made by them.6 [26] In the circumstances, it can be inferred from Ms Vibhkar’s conduct, i.e., her continuance of her claim and her attendance at the hearing on 19 October 2023, that she did not accept the Applicant’s offer. [27] Where the way the Tribunal exercised a discretion is being appealed against, the Appeal Tribunal will not interfere unless it can be shown that the Member acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters.7 Just because the Appeal Tribunal might have exercised the discretion differently, that is not a basis for changing the decision: it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion.8 [28] In this instance, I do not find that the Tribunal made an error in not considering the purported agreement as it is clear from the evidence before me that Ms Vibhakar had not accepted it. Conclusion [29] The Lessor has not established that there has been an error, nor has there been a substantial injustice which the Appeal Tribunal needs to address. [30] Leave to appeal is refused. 5 Felthouse v Bindley (1862) 11 CBNS 869; Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523, 527-8 (Kirby P) and 534 (McHugh JA). 6 W A Dewhurst & Co Pty Ltd v Cawrse [1960] VR 278, 282; Haynes v McNeil (1906) 8 WALR 186; Glass v Pioneer Rubber Works of Australia Ltd [1906] VLR 754. 7 House v The King (1936) 55 CLR 499, 504. 8 Lovell v Lovell (1950) 81 CLR 513. -- 4 of 5 -- 5 Orders 1. Leave to appeal is refused. -- 5 of 5 --