Caruana & Anor v LJ Hooker Toowoomba [2022] QCATA 144

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: PARTIES: APPLICATION NO/S: MATTER TYPE: DELIVERED ON: HEARING DATE: HEARD AT: DECISION OF: Caruana & Anor v LJ Hooker Toowoomba [2022] QCATA 144 TARSHA AMAYA CARUANA (Applicant) COLE JOSEPH NEPIA (Applicant) v ESR MANAGEMENT PTY LTD T/AS LJ HOOKER TOOWOOMBA (Respondent) APL151-21 Other minor civil dispute matters 11 October 2022 10 October 2022 Brisbane Judicial Member Forrest SC ORDERS: Pursuant to s 143A of the Queensland Civil and Administrative Tribunal Act 2009 (“the Act”) the Application for Leave to Appeal against the decision of the Tribunal dated 12 May 2021 is referred back to the Minor Civil Disputes list at Toowoomba to decide whether the proceeding should be re-opened as if it was an application for the proceeding to be re-opened under s 138 of the Act. Pursuant to s 143A(3)(b) of the Act, notice of this referral shall be given to each party to the proceeding. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – leave to appeal – where the Applicant seeks to appeal a decision by a Magistrate sitting as a Tribunal Member in a Minor Civil Dispute APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – HEARING OF APPEAL – minor civil dispute –where the Appeal Tribunal considers the reasons for the application for leave to appeal may constitute a re- opening ground for the applicant – where the application is -- 1 of 4 -- 2 referred back to the Tribunal and treated as an application for re-opening of the proceeding Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 138, s 143A, Schedule 3 APPEARANCES & REPRESENTATION: Applicants: Self-represented Respondent: V Harch of LJ Hooker REASONS FOR DECISION [1] This is an application for leave to appeal and, if granted, an appeal against the orders of a Magistrate sitting as a Tribunal Member in a Minor Civil Dispute – Residential Tenancy Dispute. [2] The substantive dispute is over the return of a rental bond and whether the Applicants should have some of that bond withheld and paid to landlords through their agent, the Respondent, for cleaning and excess water use charges arising out of their tenancy. Background [3] On 12 August 2020, the Applicants signed a tenancy agreement over a Toowoomba property giving them a six-month term. An employee of the Respondent signed it on 13 August 2020. The Applicants paid a bond of $1,360 that was disbursed to the Residential Tenancies Authority (“the RTA”) as required. On 29 December 2020, the Applicants were given notice by an employee of the Respondent that they would be required to vacate the premises at the beginning of March 2021. The Applicants then informed the Respondent they would vacate the property on 17 February 2021. [4] After the Applicants vacated the rental property, the Respondent gave notice to the RTA that a claim for $750 for cleaning and $198 for water charges was made against the Applicants’ bond. [5] The Applicants disputed the claim and the RTA convened the conciliation process. The parties remained in dispute after the conciliation conference and the Respondent filed an application for minor civil dispute – residential tenancy dispute in the Tribunal in the Toowoomba Magistrates Court. The Application was filed on 14 April 2021. [6] By a notice dated and sent out to the Applicants on 22 April 2021 (only a week after the Application was filed), the hearing of the matter was set down for 12 May 2021 in the Magistrates Court Building in Toowoomba. That was 28 days after the Application was filed. That is the period within which any Response was to be filed. The Applicants did not file a Response and they did not appear at the hearing. [7] The Respondent was represented by Ms Harch at that hearing. The transcript of the hearing is extraordinarily brief – less than a page in length. It shows the Magistrate sitting as a Tribunal member had the Applicants called. He asked Ms Harch had she had any contact with them, to which she responded “no”. He then said “Well, I’m satisfied you’ve established the grounds for the applicant. So, I’ll make an order that [the Applicants] pay $948 for the application and $70 and 45 cents for the filing fee”. -- 2 of 4 -- 3 [8] Notice of the Judgment was then sent to the Applicants. They filed an application for leave to appeal straight away. The Hearing Before Me [9] The hearing of the application for leave to appeal came before me on Monday, 10 October 2022. [10] When asked why they had not appeared at the hearing on 12 May 2021, the Applicants told the Tribunal that they had not appeared as they had already received all of their bond back from the RTA on a date between being given notice of the hearing and the hearing date and that had given them cause to believe that the dispute had been finalised and that they did not need to appear at the hearing. [11] Of course, the RTA is precluded from paying back a bond after a conciliation conference that has not resolved the dispute where an application has been made to the Tribunal by one or more of the parties to the dispute. This repayment was clearly a mistake. [12] Ms Harch, for the Respondent, conceded that she had since become aware that the RTA had mistakenly repaid the bond to the Applicants. To her credit, Ms Harch also conceded that it was not unreasonable for the Applicants not to have appeared at the hearing in the Tribunal on 12 May 2021 in these circumstances. She did not take issue with the suggestion that the appropriate outcome would be for the matter to go back to the Tribunal for a first hearing again. My Determination [13] The Applicants do not seek to argue that the learned Magistrate made an error of law. They seek to argue their case on the merits, as if it was the first instance hearing again. As non-lawyers, that they do this is understandable. [14] It appears to me, in the circumstances though, that the Applicants should have brought an application to re-open the proceeding rather than an application for leave to appeal. [15] The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides a right to a party to a proceeding to apply to the tribunal for the proceeding to be reopened if the party considers a ground exists. “Reopening ground” is defined in Schedule 3 to the QCAT Act to include the following: (a) The party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing [16] As I have already said, given the mistake made by the RTA in repaying the disputed rental bond to the Applicants when it should not have been repaid to them, it appears to me, at least, the Applicants had a reasonable excuse for failing to appear at the hearing. [17] However, sub-section (5) of s 138 of the QCAT Act provides further that a party cannot make an application to reopen a proceeding in relation to a decision that is subject to an application for leave to appeal or the subject of an appeal and sub-section (6) provides that sub-section (5) applies whether or not the appeal or application has been decided. [18] Nevertheless, s 143A of the QCAT Act provides for this very circumstance as follows: (1) This section applies if -- 3 of 4 -- 4 (a) an application or appeal is filed under section 143; and (b) the appeal tribunal considers (i) the reasons for the application or appeal may constitute a reopening ground for the applicant or appellant in the proceeding to which the application or appeal relates; and (ii) the application or appeal could be more effectively or conveniently dealt with if it were taken to be an application under part 7 , division 7 for a proceeding to be reopened. (2) The appeal tribunal may refer the matter to the tribunal to decide whether the proceeding should be reopened. (3) If the appeal tribunal refers the matter (a) the applicant or appellant is taken (i) to have made an application for the proceeding to be reopened under section 138 ; and (ii) not to have made an application or appeal under section 143 ; and (b) the appeal tribunal must give notice of the referral to (i) each party to the proceeding; and (ii) any other person the tribunal reasonably considers should be given notice of the referral. [19] I am satisfied that I should use the power available to me under this section of the QCAT Act to refer the matter back to the tribunal to hear it as a re-opening application under s 138 of the QCAT Act. [20] I told the parties during the hearing of the Appeal that it was my intention to refer the matter back to the tribunal to hear the matter on its merits with the Applicants saying they would appear to argue their case this time. However, the referral back to the tribunal is to hear the application as an application to re-open the proceeding. When the Applicants appear before the tribunal at the hearing, if the matter is not resolved by agreement between the parties in the meantime (as the parties indicated they would try to do) the Applicants must be aware that they will be arguing in the first instance to re-open the proceedings, principally relying on the reasons they gave, that I accepted, for their failure to file a Response and appear at the hearing that took place on 12 May, 2021. If they are successful in obtaining a re-opening, they should be ready then to argue their case on its merits. It is entirely possible that could all take place within the one hearing. [21] Accordingly, I make the orders set out at the commencement of these written reasons. -- 4 of 4 --