Toledo v Etienne

CITATION:

Toledo v Etienne [2012] QCATA 146

PARTIES:	Manuel Toledo (Applicant/Appellant)
v
Siegfried Etienne (Respondent)

APPLICATION NUMBER:

APL042-12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Richard Oliver, Senior Member

DELIVERED ON:

16 August 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

Leave to appeal refused.

CATCHWORDS:

Minor Civil Dispute – tenancy matter – where applicant seeks to raise issues not before the original tribunal

Queensland Civil and Administrative Tribunal Act2009, ss 138, 142(3)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

Mr Etienne filed an application in the minor civil disputes jurisdiction of the Tribunal seeking to recover a bond paid in respect of rented premises at Ahern Street in Labrador. Mr Toledo is the lessor.

The application came on for hearing before a Tribunal Adjudicator on 16 August 2011. Mr Toledo did not appear. He did however write to the Tribunal advising that he could not attend because of a medical appointment. The learned Adjudicator, in the exercise of discretion, refused to adjourn the matter because Mr Toledo did not provide any further information about his medical appointment, nor did he apply to attend by telephone which, she considered, he could easily have done. Mr Toledo lives in New South Wales and leave to attend by telephone would have been granted.

The matter proceeded and the learned Adjudicator was satisfied that Mr Etienne was entitled to a return of part of the bond money of $650.00 and an order was made accordingly.

From that decision Mr Toledo has filed an application for leave to appeal or appeal. In that application he relies on a number of matters to show that the Tribunal decision on 16 August 2011 was made in error. He relies on certain factual matters that he contends that Mr Etienne was in arrears of rent from 30 April 2011 to 3 June 2012. In addition, he claims advertising, carpet cleaning, stolen crockery and key replacement all because Mr Etienne left the rented premises before the expiration date of the residential tenancy being 20 July 2011. He relied on the terms and conditions of the tenancy agreement to justify the recovery of cleaning costs.

It is interesting that through the appeal process Mr Toledo has sought to agitate new matters that were not brought up in the hearing below by way of a response to the respondent’s claim. Had Mr Toledo had a legitimate and reasonable excuse for not attending the Tribunal on the date of the hearing he could have applied for a reopening of the proceeding under section 138 of the QCAT Act. Instead, he has chosen to proceed by way of appeal. That being the case, and because this is an appeal from the minor civil disputes jurisdiction, leave to appeal is necessary. Leave will not be granted lightly particularly where it is sought to agitate those factual matters that ought to have been agitated in the hearing at first instance. For leave to be granted, the applicant must identify some error on the part of the original decision maker or alternatively convince the Appeal Tribunal there has been a substantial injustice.

Here, the learned Member acted properly and fairly in the absence of Mr Toledo, bearing in mind that the application had already been adjourned on one previous occasion when he did not attend. The learned Adjudicator ensured that there was a proper assessment of the claim made by Mr Etienne and made orders to reflect that process by reducing the amount of the bond payable to him.

Mr Toledo has not been able to identify any error on the part of the learned Adjudicator in proceeding as she did and if he has a legitimate claim for arrears of rent, damage to property, cleaning etc, he is at liberty to bring a fresh application to recover those sums. The Appeal Tribunal is not the place to pursue that claim.

In the circumstances leave to appeal is refused.

Toledo v Etienne involved a minor civil dispute in the Local Court of New South Wales, where the applicant sought to raise issues not previously considered by the tribunal. The applicant, Toledo, was a tenant who was involved in a dispute with the landlord, Etienne, over alleged breaches of the residential tenancy agreement. Toledo had sought relief from the original tribunal but now wished to bring additional issues before the court.

The primary legal issue was whether the applicant could raise new matters that had not been previously presented to the tribunal. The court had to determine if the applicant's attempt to introduce new issues was permissible under the relevant provisions of the Minor Civil Dispute Resolution Act. The court also needed to assess whether the new issues were relevant to the original dispute and if there were any grounds to justify the late introduction of these matters.

The court found that the applicant was not entitled to raise new issues that were not previously brought before the tribunal. The court held that the Minor Civil Dispute Resolution Act did not permit the introduction of new matters in an appeal from the tribunal. The court reasoned that such a practice would undermine the integrity and efficiency of the dispute resolution process. The new issues raised by the applicant were considered irrelevant to the original dispute, and there were no valid grounds to justify their late introduction. Consequently, the court refused the applicant's request to raise these new issues.

The final orders of the court were that leave to appeal was refused, and the applicant was not permitted to raise the new issues in the proceedings. The decision underscored the importance of adhering to the procedural rules governing minor civil disputes and highlighted the court's reluctance to entertain late-introduced issues that were not part of the original dispute.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established