Flawn v Ashton

[2014] QCATA 300

CITATION: Flawn v Ashton [2014] QCATA 300

PARTIES:	Bronwyn Paulette Flawn (Applicant/Appellant)
V
Clyde Ashton (Respondent)

APPLICATION NUMBER: APL353 -14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe, OAM

DELIVERED ON: 22 October 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Leave to appeal granted.

2.    Appeal allowed.

3.    The decision of 23 July 2014 is set aside.

4.    The application filed 5 June 2014 is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where tenancy terminated in 2011 – where claims for breach of tenancy – where dispute resolution request filed 2014 – where tribunal could not hear the claim - whether grounds for leave to appeal

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Pickering v McArthur [2005] QCA 294
Caruna v Harcourts Proactive Results Pty Ltd [2012] QCATA 55

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 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Ms Flawn is Mr Ashton’s niece. Between February 2010 and some time in late 2011, she rented a unit from him. In May 2014, Mr Ashton decided to pursue Ms Flawn for unpaid rent, lawn mowing costs and repair costs. From a claim of $5,806, the tribunal ordered Ms Flawn pay Mr Ashton $3,060.

2. Ms Flawn wants to appeal that decision. She says she was unaware of tribunal procedure and, though she had documents with her on the day of the hearing, she did not provide them to the learned Adjudicator. She says the documents will show that Mr Ashton’s claim is without foundation.

3. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

   [1] QCAT Act s 142(3)(a)(i).

   [2]        Pickering v McArthur [2005] QCA 294 at [3].

1. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Ms Flawn have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[3]

   [3]        Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

1. As it happens, I do not need to consider Ms Flawn’s fresh material.

2. Section 419(3) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) provides that an application about a breach of an agreement must be made within 6 months after Mr Ashton became aware of the breach. The tribunal has consistently stated that this time limit is mandatory, and it has no ability to extend time for compliance[4].

   [4]        See, for example, Caruna v Harcourts Proactive Results Pty Ltd [2012] QCATA 55 at [14].

3. It is clear that Mr Ashton was aware of the alleged breaches in 2011. If Ms Flawn stopped paying rent, Mr Ashton must have known. He must have known of the condition of the property when he regained possession in December 2011. He did not file a dispute resolution request until May 2014. He did not file an application in the tribunal until June 2014. The dispute is out of time and the learned Adjudicator had no ability to consider it.

4. Leave to appeal should be granted and the appeal allowed. The decision of 23 July 2014 is set aside. The application filed 5 June 2014 is dismissed.