Duncombe v MKS Investments & Anor [2013] QCAT 651

CITATION: Duncombe v MKS Investments & Anor [2013] QCAT 651 PARTIES: Gregory John Duncombe (Applicant) v MKS Investments and Alan Ott (Respondent) APPLICATION NUMBER: MCDO841/13 and 840/13 MATTER TYPE: Other minor civil disputes matters Residential tenancy matters HEARING DATE: 15 August 2013 HEARD AT: Southport DECISION OF: Adjudicator Trueman DELIVERED ON: 15 August 2013 DELIVERED AT: Southport ORDERS MADE: 1. That the Applicants application for leave to Re-Open is refused CATCHWORDS: Minor Civil Dispute – Re-opening Queensland Civil & Administrative Tribunal Act 2009 Queensland Civil & Administrative Tribunal Rules 2009 Creek v Raine & Horne Real Estate Mossma [2011] QCATA 226 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Section 138(1) of the QCAT Act allows a party to a proceeding to apply to the tribunal for the proceeding to be reopened if the party considers a reopening ground exists for the party. -- 1 of 5 -- 2 [2] Section 137 of the Act state the definition of a reopening ground, for a party to a proceeding, means – (a) the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or (b) the party would suffer substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that the evidence was not reasonably available when the proceeding was first heard and decided. [3] Section 139 of the Act gives the tribunal the power to grant an application for reopening only if the tribunal considers a reopening ground exists for the applicant party; and the ground could be effectively or conveniently dealt with by reopening the proceeding under this division. [4] On 30 July 2013 the applicant lodged an application for reopening. In accordance with section 139(2) of the Act the parties were allowed 10 days to make written submissions about the application for reopening. [5] Written submissions were not filed by the applicant or the respondent. The applicant noted in his application to reopen that the reason he seeks reopening is that he did not receive the Notice of Hearing as he works interstate and on his initial application he intended to attend the hearing by telephone. It is not clear why the respondent did not file any submissions as requested but I am satisfied I can deal with the application effectively on the papers without a hearing. [6] The tribunal file indicates that on 24 June 2013 the applicant filed two applications for minor debt. Claim 840/13 claimed the sum of $3,209.72 and claim 841/13 claimed for a sum of $2,158.34. From comparing the two files it is clear the claimed amounts overlap and that both claims include some of the same amounts sought for the same reasons. For example both claims state that the Bond of $500 be returned to the applicant and both claims include reimbursement for rent arrears, damaged or missing property, unauthorised repairs and cleaning, but the amounts vary on each claim. Claim 840/13 includes an added claim for inspection expenses. [7] On 23 July 2013 both of the claims were listed for hearing. The applicant was sent a Notice of Hearing to the address he had inserted on both of his claims, being an address in New South Wales. The files indicate that the applicant was sent the Notices of Hearing to the address he provided. The file indicates that the applicant had not applied to the tribunal for Leave to appear by telephone, as is required.1 The applicant had not requested an adjournment and it appears that the applicant was duly served with Notice of the Hearing. [8] The respondent appeared at the hearing and evidence was produced by the respondent. The respondent sought an order that the remaining Bond held with the Residential Tenancy Authority of $500 be paid to the respondent. The respondent’s evidence2 was considered relating to both claims and a decision was made. The applicant being the Lessor and the respondent being the tenant, the decision relating to the bond of $500 was by way of an order that stated: 1 QCAT Act s 32. 2 Exhibit 3. -- 2 of 5 -- 3 a. The Residential Tenancies Authority pay out to the parties the sum of $500.00 rental bond as follows: i. Lessor $397.23 ii. Tenant $102.77 [9] The decision made at the hearing on 23 July considered all evidence. From the file it is noted that the applicant had filed voluminous evidence to support his claims. It is clear that evidence was taken into account. It is also noted that the respondent was not wholly successful and that the decision in fact awarded the bond, in the larger part, to the applicant and not the respondent. [10] The applicant now seeks to have the proceeding reopened on the grounds that he did not receive the notice of hearing. The applicant states in his application for reopening filed on 30 July 2013 that he did not receive the notice to appear at the QCAT hearing. In his application he states that he ‘contacted the QCAT office many times regarding the issue, phoned the Southport Court House… received very helpful advice’. He further stated that he discussed with the staff that he wanted to appear at the hearing by telephone and wanted email advices regarding the hearing. I do not accept that the applicant discussed with the QCAT staff his desire to attend by telephone, as if he did so, the staff would have informed the applicant he would have to apply for leave to appear by telephone at the hearing if he did not intend on appearing in person. [11] The applicant claims he works interstate. According to the claim he not only works interstate but he lives interstate. He should have arranged to appear at the hearing by telephone when he originally filed his claims. [12] The proper service of a Notice is governed by rule 38 of the Queensland Civil and Administrative Tribunal Rules 2009 (the Rules) Rule 38 provides for the service of a minor debt claim. The fact that the applicant provided an address on his minor debt claims, being a residential address, it is clear that this is the only address provided to the tribunal for the purpose of service. [13] The tribunal record indicates that the Notice of Hearing was then served pursuant to rule 39 which allows service by sending the notice by post to the relevant address. The relevant address is defined as the service address in the applicants claim noted as his address for service. [14] The address for service provided by the applicant in his minor debt claims, filed 24 June 2013 provides the address for service of 83 Lakedge Avenue, Berkeley Vale New South Wales NSW 2261. [15] I have reviewed the tribunal record and find that a Notice of Hearing as posted to the relevant address for service being 83 Lakedge Avenue, Berkeley Vale, New South Wales NSW 2261. An affidavit of service was completed by the registry office stating the Notice of Hearing was posted on 2 July 2013 [16] I find the notice of hearing was served in accordance with the Rules of the Tribunal. -- 3 of 5 -- 4 [17] The hearing was listed for 23 July 2013. The Notice was sent to the applicant with plenty of notice for him to have received it. [18] The applicant stated that as he works interstate he intended for the Notice of Hearing to be emailed to him and for him to appear by telephone. Further, the applicant seeks to rely on the fact he wrote on his claims that he intended to appear at the hearing by telephone as evidence that the tribunal should have arranged for the telephone link up. The applicant uses the excuse of working interstate for the reason he did not receive his notice of hearing and the reason to grant a reopening. [19] I do not consider this to be a reasonable excuse for not attending the hearing. The applicant commenced proceedings, provided his residential address for the service of notices. If he wanted the Tribunal to send Notices to another more reliable address for the purpose of service of notices he should have written that on Part A of the Claim. [20] The Tribunal proceeded to send notification of the hearing date and notification of the decision to the residential address of the applicant. [21] The applicant stated that he works interstate for work. No evidence was produced to the tribunal to prove that contention that the applicant was not in New South Wales at the time the Notice was sent. The applicant stated that he filed his claim and then when he did not hear anything he expected to receive the Notice of Hearing by email. The applicant said he wrote on the bottom of the last page of the claim that he wanted all notices to be sent to him also by email. The applicant stated in his application to reopen that he rang the ‘office on the 23.7.2013 at 10.36am to enquire regarding a hearing date. I was advised it had been finalized the day before’. I do not accept this as the applicant claims he called the QCAT office the day of the 23 July, and was told it was the day after the hearing and that the matter had been finalised. I do not belie this occurred, as if I am to believe this the applicant actually called QCAT the morning of the hearing before the allocated hearing time of 11am. Either the applicant is confused about the dates or not telling the truth about what actually occurred. I do not accept that the applicant did not receive the notice of hearing. [22] The Tribunal has a statutory obligation to deal with matters in ways that are accessible, economical and quick. The Act places obligations upon parties to take care in their dealings with Tribunal matters and to act in their own best interests. If any applicant lives interstate it is prudent on them to arrange appropriate mailing details, to pre arrange leave to appear at the hearing by telephone if they cannot attend in person and to ensure that they are informed of the progress of their matter. [23] In Creek v Raine & Horne Real Estate Mossma [2011] QCATA 226 at [13] the tribunal expressed the importance of parties taking care in their dealing with Tribunal matters stating: The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interest. QCAT resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ... the public as a whole, not merely the parties to the proceedings. Finality in litigation is -- 4 of 5 -- 5 highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties. [24] I find that the applicant has failed to take care in his dealings with the Tribunal and that his alleged absence from his home and unfounded and unproven excuse of working interstate, resulting in his failure to receive the notice of hearing, does not qualify as a reasonable excuse and the application for reopening must therefore be dismissed. [25] The order that I make is as follows: 1. That the Applicants application for Leave to reopen is refused. -- 5 of 5 --