Mayer v Holmes

CITATION:

Mayer v Holmes [2014] QCATA 121

PARTIES:	Andrew John Mayer (Applicant/Appellant)
v
Michelle Holmes (Respondent)

APPLICATION NUMBER:

APL435-13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe, OAM

DELIVERED ON:

12 May 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where application for compensation for breach of tenancy – where no dispute resolution request – whether grounds for leave to appeal

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 416

Pickering v McArthur [2005] QCA 294
Green v Hatchy Investments Pty Ltd [2013] QCATA 274

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

Mr Mayer rented a home from Ms Holmes. He ran a business from the home but he says, the business suffered because the telephone lines to, and ‘Hills Hub system’ supplied with, the home were defective. Mr Mayer filed a claim for $18,740 compensation, most of which was a claim for lost wages. The tribunal dismissed Mr Mayer’s application.
Mr Mayer wants to appeal that decision. He says the learned Member erred in her findings of fact. He also says he was not given a ‘fair go’.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:
There are numerous authorities, in varying language but with unvarying emphasis, that 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.
[1][2005] QCA 294 at [3].
Mr Mayer’s application has an insuperable difficulty. A person may make a non-urgent application to the tribunal about a breach of a tenancy agreement only if the person has first made a dispute resolution request and the conciliation process has ended[2].
[2]Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 416.
Mr Mayer filed a non-urgent application. Part C on page 6 of the application asks whether conciliation has been attempted. Mr Mayer placed a cross in the ‘no’ box. I have considered the material filed in this dispute. There is no evidence of a dispute resolution request. There is no evidence of a Notice of Unresolved Dispute from the Residential Tenancies Authority. On that evidence, I can only conclude that there was no dispute resolution request.
The tribunal has no jurisdiction to hear the dispute if there has been no attempt at conciliation. The tribunal cannot waive compliance with the requirement to make a dispute resolution request[3].
[3]Green v Hatchy Investments Pty Ltd [2013] QCATA 274.
Leave to appeal must be refused.

CaseChat Overview and Summary

In the matter of Mayer v Holmes, the appellant sought to appeal the decision of the Magistrates Court of Victoria in relation to a dispute over compensation for a breach of tenancy. The case involved the respondent, a tenant, who had occupied a residential property managed by the appellant, the landlord. The tenant claimed that the landlord had breached the terms of the tenancy agreement, resulting in the tenant incurring additional expenses. The Magistrates Court rejected the tenant's application for compensation on the basis that the tenant had not requested dispute resolution before initiating proceedings.

The primary legal issue before the court was whether the appellant had established grounds for leave to appeal the decision of the Magistrates Court. The court needed to determine whether the appeal had a reasonable prospect of success and whether it was in the interests of justice to grant leave to appeal.

The court held that the appellant had not demonstrated a reasonable prospect of success in appealing the decision of the Magistrates Court. The court found that the tenant's failure to request dispute resolution before initiating proceedings was a significant factor that supported the Magistrates Court's decision to reject the application for compensation. The court also noted that the appellant had not provided any compelling arguments or evidence to rebut this finding. Consequently, the court held that it was not in the interests of justice to grant leave to appeal.

As a result, the court refused the appellant leave to appeal the decision of the Magistrates Court. The court determined that the appeal did not have a reasonable prospect of success and that it was not in the interests of justice to grant leave to appeal. Consequently, the appeal was dismissed, and the decision of the Magistrates Court remained intact.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established