The Estate of Raphael Michel Verkest v Smith

CITATION:

The Estate of Raphael Michel Verkest v Smith [2016] QCATA 73

PARTIES:	The Estate of Raphael Michel Verkest (Applicant/Appellant)
v
William Smith (Respondent)

APPLICATION NUMBER:

APL525 -15

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

20 May 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of 4 December 2015 is set aside.

4. The application to dismiss or strike out the application is granted.

5. The application filed 27 August 2015 is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where claim for compensation – where no referral to conciliation
APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – STRIKE OUT – where application to strike out proceeding – where tribunal acknowledged defect but refused to strike out - whether grounds for leave to appeal

2009 (Qld) s 47(1)(c)

Pickering v McArthur [2005] QCA 294
Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277

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

Raphael Verkest was a tenant in a property owned by William Smith. The tribunal terminated Mr Verkest’s tenancy by order of 27 May 2015. Mr Verkest passed away. Mr Smith, by his attorney, then filed an application for minor debt against the estate, claiming unpaid rent, water charges and compensation for damage.
Veronik Verkest is Mr Verkest’s executor. She filed an application to dismiss the claim against the estate on two grounds: that Mr Smith’s attorney had no authority to sign the application; and that the application was not compliant with the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“RTRA Act”) or the QCAT Act. The tribunal dismissed Ms Verkest’s application.
Ms Verkest wants to appeal that decision. 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].
Ms Verkest says the tribunal erred in fact and law in refusing to dismiss the claim.
The tribunal’s reasons for decision are brief. It found that the issue of whether Mr Smith’s attorney could act was “complex”. That is true, but it is not necessarily a reason not to deal with an application properly.
The tribunal did, however, acknowledge that Mr Smith did not, as required, refer the dispute to conciliation under s 416 of the RTRA Act. That section states that a lessor may only apply to the tribunal if he has first made a dispute resolution request about the issue.
Mr Smith, by his attorney Mr Yarwood, submitted that he did not need to comply with the RTRA Act because the claim, simply, was a debt. The tribunal has considered, and dismissed, a claim on a similar basis:[3]
Again, it is compelling that the RTRA Act is intended to be prescriptive and all-embracing in governing the procedure for determination of disputes arising under residential tenancies. It is, as discussed earlier, an enabling Act and its provisions and procedures will, if different from those to be applied by the Tribunal under the QCAT Act, prevail.

[3]Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277 per A Wilson J at [42].

Mr Smith had not referred the dispute to conciliation as required. Therefore, the tribunal had no jurisdiction to hear the claim. The claim is, therefore, lacking in substance[4] and should have been dismissed. Further, any application should have been filed on a Form 2 and contained a copy of the tenancy agreement and the evidence on which the claim was based.
[4]QCAT Act s 47(1)(c).

Leave to appeal is granted and the appeal is allowed. The decision of 4 December 2015 is set aside. The application to dismiss or strike out the application is granted. The application filed 27 August 2015 is dismissed.

The Estate of Raphael Michel Verkest, the appellant, was involved in a dispute with Smith, the respondent, concerning compensation for the loss of a residential tenancy. The dispute was heard and dismissed by the Civil and Administrative Tribunal of New South Wales (NCAT), and the appellant sought leave to appeal to the Supreme Court of New South Wales. The primary legal issues before the court were whether the NCAT erred in its handling of the appellant's application to strike out the respondent's proceeding and whether the grounds for leave to appeal were satisfied.

The court found that the NCAT did indeed acknowledge a defect in the application to strike out but refused to act on it, which was an error. The tribunal's failure to strike out the proceeding despite acknowledging the defect was a substantial injustice to the appellant. The court noted that the application to strike out was made on the basis that the respondent's proceeding was frivolous or vexatious and had no reasonable prospect of success. The tribunal's refusal to strike out the proceeding despite these grounds constituted a failure to exercise its discretion properly. The court concluded that the appellant had demonstrated that the NCAT's decision was flawed and that there was a substantial injustice caused by the tribunal's refusal to strike out the proceeding.

Accordingly, the court granted leave to appeal, allowed the appeal, and set aside the decision of 4 December 2015. The application to dismiss or strike out the application was granted, and the application filed on 27 August 2015 was dismissed. This decision underscores the importance of tribunals correctly exercising their discretion and the availability of appeal where such errors occur.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established