Bell and Anor v Hobson [2011] QCATA 357

CITATION: Bell and Anor v Hobson [2011] QCATA 357 PARTIES: Neville Bell McArthur & Associates Property Consultants (Applicant/Appellant) v Ms Sheree Hobson (Respondent) APPLICATION NUMBER: APL273-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 29 November 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is granted. 2. The appeal is allowed and the decision of the Tribunal dated 5 July 2011 is set aside. 3. Proceeding no 0233/10 filed in Caboolture Magistrates Court is reopened and remitted to the Minor Civil Disputes jurisdiction to be reheard by another Tribunal Adjudicator. CATCHWORDS: Minor Civil Dispute – where application for reopening heard and the proceeding was struck out – whether error in striking out – where proper grounds for reopening Queensland Civil and Administrative Tribunal Act 2009, ss 142(3), 146 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION [1] McArthur & Associates Property Consultants are the managing agents of shop 9 in the Glenwood shopping centre. The owner of the shop is Tremhill Pty Ltd. The appellant in this appeal is Neville Bell who, I assume from reading the file is a director of Tremhill Pty Ltd. Ms Hobson is one of the named tenants of the shop.1 [2] On 28 September 2010 McArthur & Associates filed an application in the minor civil disputes jurisdiction of the Tribunal claiming $22,253.92 arrears of rent from Ms Hobson for the period 1 February 2010 to 30 September 2010. [3] Ms Hobson filed a response to the application in which she contended that she was liable for part of the rent but sought to sub lease the premises to a third party but the consent for the assignment/sub lease was not forthcoming from the lessor. [4] In any event the application was listed for hearing in the Tribunal on 7 June 2011. Ms Hobson did not appear at the hearing. The Tribunal made an order that she pay to the applicant the sum of $22,253.92 forthwith. [5] Upon receiving that decision, Ms Hobson filed an application for reopening, correction, renewal or amendment. In her application she sets out the reasons for her non attendance at the hearing which include the fact that she moved from her then current residence to Mackay to assist her granddaughter who was ill. In the application she also advises that she lodged a mail redirection with Australia Post, the redirection started on 19 May 2011 and was to conclude on 19 June 2011. Ms Hobson has produced an email from Australia Post to confirm this. The hearing notice was sent on or about 19 May 2011 but not redirected. It was in her mailbox when she returned from Mackay on 16 June. On realizing that she had missed the hearing date, she immediately filed the application for reopening. [6] That application came on for hearing before a Tribunal Adjudicator on 5 July 2011. A representative of McArthur & Associates was at the hearing and Ms Hobson attended by telephone. There was some discussion between the parties and the Adjudicator about the substantive issues in the minor civil dispute which included the proposed assignment/sublease of the premises to a third party. [7] After hearing the parties the learned Adjudicator gave reasons which suggested that he was of the view that there were contractual arrangements and potential witnesses that required further investigation. He was concerned that the Tribunal may not have had jurisdiction to hear the substantive claim by McArthur & Associates for arrears of rent. This is somewhat puzzling as the claim for arrears of rent is a debt or liquidated 1 Deed of assignment and covenant August 2009. -- 2 of 4 -- 3 demand which falls within the definition of minor civil disputes in the QCAT Act. [8] Ms Hobson’s “defence” relates to the lessor unreasonably withholding its consent to the assignment of the lease. It is unclear how this can be a defence to a debt or liquidated demand for arrears of rent unless there is an argument that the lessor failed to mitigate Ms Hobson’s loss by not accepting the tenant. I see no reason why the Tribunal would not have jurisdiction to consider this evidence. [9] In any event, the learned Adjudicator decided to strike out the proceeding in the Tribunal it seems, for want of jurisdiction. [10] Reopening of an application is provided for in section 138 of the QCAT Act. A party may apply to the Tribunal to reopen if a reopening ground exists. The reopening ground is defined in section 137 which includes a party has a reasonable excuse for not attending the hearing or alternatively, the party would suffer substantial injustice because of significant new evidence which evidence was not available at the time of the original hearing. Here, the only relevant reopening ground is a reasonable excuse for not attending. [11] The learned Adjudicator’s function on the application was to consider the reopening ground and if satisfied that the reopening ground was made out, ought to have made an order that the application be reopened. If the matter is reopened, then section 140 of the QCAT Act takes affect which provides that the Tribunal must decide the issues in the proceeding and it must be heard and decided again. [12] From the decision to strike out the minor civil dispute application McArthur & Associates and Mr Bell have filed an application for leave to appeal or appeal. Leave to appeal is necessary.2 Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [13] Here, the learned Adjudicator fell into error in not deciding the application that was before him. The parties did not attend the hearing to argue whether or not the Tribunal had jurisdiction to consider the minor civil dispute. Once a decision had been made by the Tribunal on 7 June 2011 the only way that decision could be set aside was through the appeal process. It was not for the learned Adjudicator to summarily strike out that application in circumstances where his only function was to consider the reopening application having regards to the grounds set out in section 137 of the Act. 2 QCAT Act, section 142(3). -- 3 of 4 -- 4 [14] As this is an error of law leave to appeal must be granted. It also follows that the decision of the learned Adjudicator must be set aside. [15] As this appeal has been decided on a question of law only3 the Appeal Tribunal can substitute its own decision. [16] I have read the transcript of evidence from 5 July 2011 and considered Ms Hobson’s application for the reopening. I find that she does have a reasonable ground for reopening and has supported the application with evidence that her mail was to be re-directed. It was a coincidence of circumstances that she was not advised of the hearing date. [17] Therefore, minor civil dispute application MCD0233-10 is reopened and remitted to the minor civil disputes jurisdiction to be heard and decided by another Tribunal Member. 3 QCAT Act, s 146. -- 4 of 4 --