Du v Batra [2017] QCATA 138

CITATION: Du v Batra & Anor [2017] QCATA 138 PARTIES: Binbin Du (Applicant/Appellant) v Kunal Batra Gurneet Batra (Respondents) APPLICATION NUMBER: APL208-17 MATTER TYPE: Appeals HEARING DATE: 22 November 2017 HEARD AT: Brisbane DECISION OF: Senior Member Howard DELIVERED ON: 22 November 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for leave to appeal and appeal is dismissed pursuant to section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). CATCHWORDS: PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – OTHER MATTERS – where an applicant in appeal proceedings failed to attend hearing – whether forgetting about the hearing is a reasonable excuse – whether applicant acted in a way that unnecessarily disadvantaged the respondents – whether proceeding should be dismissed Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48, s 93, s 142 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 164, s 165 Breezeway Developments Pty Ltd v ADG Cachia v Grech [2009] NSWCA 232 Hydraulics Pty Ltd [2010] QCATA 069 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 -- 1 of 5 -- 2 APPEARANCES: APPLICANT: No appearance RESPONDENT: Kunal Batra and Gurneet Batra REASONS FOR DECISION Binbin Du (Mr Du or the lessor) is the owner of a house previously rented to Kunal and Gurneet Batra (the Batras or the tenants). A Member of the Tribunal heard and decided cross-applications in the Tribunal’s minor civil dispute (MCD) jurisdiction made by Mr Du and the Batras following the ending of the tenancy. The Batras’ claim against Mr Du was primarily for the costs of pool cleaning at the premises, consequent upon his alleged failure to appropriately maintain the property, and a further small amount in relation to water costs as a result of a water leak that had not been fixed by the lessor. Mr Du’s claim was for water charges, damage to the garage wall and monies allegedly owing in accordance with a special condition in the tenancy agreement relating to payments required to be made by the tenants to him (in addition to payment of all electricity charges) for the solar credits accruing as a result of the installation of solar power. A Tribunal Member made orders requiring that Mr Du pay Mr and Mrs Batra the sum of $150.00 by 9 July 2017. Mr Du applied for leave to appeal the decision. Mr Du’s application for leave to appeal and appeal The application for leave to appeal is made in essence on the following bases: 1. The Tribunal erred in refusing the lessor’s claim for compensation for damage without referring to the relevant legislative provisions, and despite the tenants’ admission of fault; 2. The Tribunal erred in denying the lessor’s claim for compensation with respect to the solar credit arrangement agreed between the parties; and 3. The Tribunal erred in denying the claim that any unpaid past, present or future water bills should be shared equally between the parties and making a decision prejudicial to his interests. Events at the hearing of the application for leave to appeal and appeal On the morning of the hearing of the application for leave to appeal, there was no appearance in the Appeal Tribunal by Mr Du. The hearing support officer contacted Mr Du on his mobile telephone. Although Mr Du did not -- 2 of 5 -- 3 answer the call, he immediately then sent a text message to the hearing support officer enquiring who had telephoned him. The hearing support officer messaged Mr Du advising that it was ‘Tim from QCAT. Regarding your appeal hearing’. In response to that text message, Mr Du replied by text message: I am at work, would you help to get it adjourned? So sorry, totally forgot about it. The Tribunal’s file discloses that Mr Du was given notice of the hearing. As it had been ascertained that Mr Du, despite notice of the hearing was not attending the hearing, the hearing commenced in his absence.1 Mr and Mrs Batra sought orders for the dismissal of Mr Du’s application for leave to appeal and appeal. In support of their oral application, they stated that they had both taken annual leave for the day to attend the hearing. They further stated that they consider Mr Du is being vindictive in pursuing the claim, without grounds. The Batras’ application for dismissal of the appeal proceeding Under s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), if the Tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, it may dismiss or strike out the application. In particular, s 48 provides that a party may unnecessarily disadvantage another by causing an adjournment,2 or failing to attend the hearing of the proceeding without reasonable excuse.3 In those circumstances the Tribunal may, if the party causing the disadvantage is the applicant for the proceeding, order the proceeding be dismissed or struck out. In acting under s 48, the Tribunal must have regard to the extent to which the party causing the disadvantage is familiar with the Tribunal’s practices and procedures, and the capacity of the party causing the disadvantage to understand and act on the Tribunal’s orders and directions, as well as, whether the party causing the disadvantage is acting deliberately.4 Mr Du knew the proceeding was scheduled for hearing. It is apparent from Mr Du’s response to the hearing support officer’s text message, that although he received notice of the hearing, he ‘forgot about it.’ It is reasonable to infer from Mr Du’s admission that he ‘forgot’ about the hearing that when he received notice of the hearing, he failed to take 1 As provided for in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 93. 2 QCAT Act, s 48(1)(d). 3 Ibid, s 48(1)(g). 4 Ibid, s 48(3). -- 3 of 5 -- 4 appropriate notice of it and/or diarise it and failed to make whatever arrangements he needed to make in order to prepare for the hearing and attend it. Accordingly, it appears that he was either careless or neglectful in his management of his own application and in acting in his own interests in the proceeding. On the other hand, the Batras attended the hearing. They each took a precious day of annual leave in order to appear and respond to Mr Du’s application for leave to appeal and appeal. I am satisfied that Mr Du, having previously attended and represented himself in the MCD proceedings, has a degree of familiarity with the Tribunal’s practices and procedures concerning hearings and that he has the capacity to understand and act on the Tribunal’s orders and directions. This may also be inferred from his compliance with directions to file submissions in support of his application for leave to appeal and appeal. The available evidence does not suggest that Mr Du acted deliberately in failing to attend the hearing, but that he did so, either carelessly or neglectfully. Parties must act in their own interests in their proceedings.5 Mr Du did not do so. I am not satisfied that he has a reasonable excuse for his failure to attend the hearing.6 By acting in such a manner, Mr Du acted in a way that disadvantaged the Batras, causing them to waste precious days of their annual leave to attend the hearing, when he himself failed to attend the hearing because he ‘forgot’ about it. In the circumstances, I am satisfied that Mr Du’s application for leave to appeal and appeal should be dismissed under s 48 of the QCAT Act. I make orders accordingly. Observations It seems to me that in any event had Mr Du’s application for leave to appeal proceeded to a hearing on its merits, that it would have failed. I make observations as follows. Leave to appeal will ordinarily only be granted where there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the appellant would obtain further substantive relief, and when it is necessary to correct a substantial injustice.7 As the original decision was 5 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 069 at [9] – [12]. 6 QCAT Act, s 48(3). 7 Cachia v Grech [2009] NSWCA 232 at 2; QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. -- 4 of 5 -- 5 made in respect of a minor civil dispute, leave to appeal is necessary before the appeal could proceed.8 Mr Du’s application and submissions do not, in my view, reveal an arguable error in the Member’s decision. Therefore, in my view even if he had attended to argue his case, he did not identifa a basis to support the granting of leave to appeal. In this regard, I observe that Mr Du’s submissions suggest that he believed an appeal was an opportunity to simply reargue the entire case again. However, the appeal process is to correct error of the Tribunal in the making of its decision. The MCD proceeding was determined in a no doubt busy list. Notwithstanding that the Member, in refusing Mr Du’s claims for compensation, did not refer to the particular legislative provisions, that does not of itself mean that he failed to apply the law correctly. Mr Du does not identify any applicable provision that was not applied. Further, in relation to the claim for solar credits, Mr Du once again does not point to any alleged error in the Member’s decision-making process. In view of the provisions of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) about the limitations on service charges which may be agreed,9 it is not apparent that the Tribunal was in error. Further, despite Mr Du’s belief that the unpaid past, present and future water bills should equally be shared, he does not point to any error in the Tribunal’s decision in deciding to reduce the contribution of the tenants to past water bills to $450 (from Mr Du’s claimed amount of $750), on the basis of a water leak which had not been fixed by Mr Du, and in light of there being no evidence before the Tribunal at the hearing, as to the water bill post-March 2017 until the conclusion of the tenancy in May 2017. Further, in respect of Mr Du’s claim for costs of repairs for damage to the garage wall, the Member had no evidence from Mr Du about the alleged costs to repair the alleged damage. 8 QCAT Act s 142(3)(a)(i). 9 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 164, s 165. -- 5 of 5 --