Diggles v Beasley and Ors [2012] QCAT 273

CITATION: Diggles v Beasley and Ors [2012] QCAT 273 PARTIES: Diane Marie Diggles (Applicant) v Dathan Peter Beasley Lisa Lister-Browne Ray White Ascot (Respondents) APPLICATION NUMBER: MCDT3043-10 (consolidated with MCDT62-11) MATTER TYPE: Residential tenancy matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: J Bertelsen, Adjudicator DELIVERED ON: 14 June 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The application to reopen the proceeding is dismissed. CATCHWORDS: Application to reopen – no evidence that hearing notice not received Queensland Civil and Administrative Tribunal Act 2009, s 138 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 Reopening application [1] On 6 December 2010 the applicant Dianne Diggles filed an application (3043/10) seeking: 1. Urgent repair to kitchen at no cost 2. Reduction of rent $100 per week -- 1 of 4 -- 2 3. Loss of income 4. Pain and suffering 5. Refund of Tribunal costs 6. Costs of taxi-acupuncturist. [2] On 14 November 2010 the applicant had sustained a fall while cleaning the exhaust fan above the cook top in the kitchen of the subject rented premises. [3] The applicant’s application nominated Mr and Mrs Dathan Beasley as respondents with Robyn Healey of Ray White Ascot as representative. [4] By application filed 14 February 2012 the applicant sought to cancel items 1, 3 and 4 of her application filed 6 December 2010 on the basis that these items had been “handled and … not in the jurisdiction of QCAT”. The application was therefore confined to the applicant’s claim for rent reduction, Tribunal costs and cost of taxis, acupuncture. [5] The applicant asserted the exhaust fan in the kitchen was incorrectly secured at the time it was installed and referred to inspections by one Philip Finch who stated wall plugs were not large enough in diameter for the holes that were drilled into the wall and by Howard Murray, cabinet maker, who stated that the range hood was attached with metal fasteners screwed into a spaghetti type plug which was an unreliable way to fit the range hood. [6] In the meantime on 10 January 2011 Dathan Beasley and Lisa Lister- Brown as owners filed an application disputing the basis of the application by Dianne Diggles particularly the notice to remedy breach. That application recited the applicant’s address for service as c/- Ray White, 138 Racecourse Road, Ascot, Queensland. Application 3403/10 was set down for hearing on 11 January 2011. Both applications 3403/10 and 62/11 were consolidated at hearing on 11 January 2011. [7] On 11 January 2011 the following persons appeared – Dianne Diggles, Robyn Healey, Property Manager Ray White Ascot, Lisa Lister-Brown and Dathan Beasley, Owners, Brett Heath, Solicitor, Carter Newell, assisting. On that day Lisa Lister-Brown was added as a respondent with her address for service being recorded as the same as that for Mr Beasley and the applications were “adjourned to a date to be fixed on the written request of either party.” At that time the respondents presented an affidavit by Ben Wikman giving his opinion regarding installation of the kitchen exhaust fan and subsequent events. [8] The applications were subsequently set down for hearing on 7 February 2011 but that date was vacated by the Tribunal and the hearing date for 9 March 2012 was eventually set after request made by the applicant on 19 January 2012. An application by Dianne Diggles to be legally -- 2 of 4 -- 3 represented made 31 January 2012 was granted. On 20 February 2012 notices of hearing for application 3403/10 were posted to Dathan Beasley and Lisa Lister-Brown as follows: Ms Lisa Lister-Brown Mr Dathan Beasley c/- Ms Robyn Healey c/- Ms Robyn Healey Ray White Ray White Racecourse Road, Ascot QLD 4007 Racecourse Road, Ascot QLD 4007 [9] On 9 March 2012 neither Dathan Beasley nor Lisa Lister-Brown appeared nor did their representative Robyn Healey of Ray White Ascot or any other person from Ray White Ascot. There was no return of mail in respect of the notices of hearing sent to all parties. The application was heard and a decision made. [10] On 22 March 2012 Mr Beasley and Ms Lister-Brown applied to stay the decision of 9 March 2012 while they obtained written reasons for the decision. They would then pursue their application to reopen the proceeding. They, in correspondence accompanying the stay application, requested “that copies of all papers in these proceedings that are posted to c/- Ray White Ascot are also emailed to the applicants directly”. The stay application was otherwise unaccompanied and accordingly could not proceed. [11] On 23 April 2012 Mr Beasley and Ms Lisa Lister-Brown filed an application to allow “a waiver or extension of the relevant time limit so that we can receive the reasons for the decision and then hopefully understand why the decision was made”. That application goes into detail about a decision of the Tribunal made 31 January 2012 “in the other parties favour” and received by Mr Beasley and Ms Lisa Lister-Brown on 6 February 2012 by email from Ray White Ascot. The only Tribunal decision of 31 January 2012 was to allow legal representation to the applicant. That application also refers to ongoing communications with the Tribunal during the course of February and March 2012 in an effort to obtain written reasons for the 31 January 2012 decision. [12] Subsequently on 30 April 2012 Mr Beasley and Ms Lisa Lister-Brown filed a reopening application asserting they had a “reasonable excuse for not attending the hearing”. Mr Beasley and Ms Lisa Lister-Brown reside in Dubai, United Arab Emirates. They asserted (paragraph 13 of their submissions) “that the landlord’s address for personal service in the proceedings has not changed. It is, and at all relevant times has been, the address of the property manager. The person (at the property managers office) who looks after the file for the tenancy that is relevant to these proceedings was Robyn Hely and is now Sarah Troth.” Mr Beasley and Ms Lisa Lister-Brown further asserted at paragraph 12 that “enquiries about the whereabouts of the notice of hearing for the hearing of the proceeding on 9 March 2012 but these enquiries have been fruitless” and that as such “the whereabouts of the notice of hearing is a mystery to the landlords.” Crucially no evidence has been produced by or on behalf of -- 3 of 4 -- 4 Ray White Ascot the one and only address for service recorded for Mr Beasley and Ms Lisa Lister-Brown. In particular there was no evidence on the part of Robyn Healey or Sarah Troth to suggest non receipt of the Tribunal notice of hearing for 9 March 2012. The assertion that Sarah Troth has emailed to Mr Beasley and Ms Lisa Lister-Brown “copies of all the documents she has received in the proceedings” is vague and does nothing to advance the application to reopen. [13] The only Tribunal notification in these proceedings in respect of which non receipt is alleged is the notice of hearing for 9 March 2012. [14] In these circumstances the Tribunal considers the application to reopen on the grounds of non notification of hearing date to be both disingenuous and on balance improbable. [15] The application to reopen the proceeding is dismissed. -- 4 of 4 --