Bertelsen v Czdel

[2014] QCATA 165

CITATION: Bertelsen v Czdel [2014] QCATA 165

PARTIES:	Dylys Bertelsen (Applicant/Appellant)
v
Rodney Czdel Brionny Czdel (Respondents)

APPLICATION NUMBER: APL038-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe, OAM

DELIVERED ON: 2 July 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where tenant broke lease – where lessor offered tenancy at much higher rent – where no new tenant for four months – whether lessor mitigated loss – where lessor claimed loss of rent minus insurance payout – where tribunal deducted insurance payout from final claim – whether grounds for leave to appeal

PROCEDURE – where application for leave to appeal filed out of time – where no extension of time sought – where reasons for decision not sought until months after decision – whether application for leave to appeal should be struck out

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 122, 143

Pickering v McArthur [2005] QCA 294

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. Mr and Mrs Czdel rented Ms Bertelsen’s house at $805 per week.  On 18 June 2013, Mr Czdel told Ms Bertelsen’s agent that he lost his job, could not afford to pay the rent and that they would have to break the lease.  Mr and Mrs Czdel left the property on 3 July 2013.

2. Ms Bertelsen instructed her agent to list the property for rent at $885 per week.  She did not find a new tenant until November 2013, at $850 per week.  Her agents filed a claim for the bond.  The agent then filed an amended claim for rent from July to November, a claim of $13,075.23, plus water rates and a break lease fee.

3. An adjudicator allowed only a modest claim, and ordered that most of the bond be refunded to Mr and Mrs Czdel.

4. Ms Bertelsen wants to appeal that decision.  She says the learned Adjudicator erred in not allowing rent for the full period from July to November.  She also says the learned Adjudicator erred in deducting the insurance payment from the amount payable by Mr and Mrs Czdel.

1. 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].

1. There is a preliminary matter.  The tenants Union of Queensland Inc, on behalf of Mr and Mrs Czdel, submit that the appeal was not filed within time.

2. An application for leave to appeal must be filed within 28 days after the relevant day[2]. “Relevant day” is the day a person is given written reasons unless the person has not requested written reasons under s 122. Section 122 requires a person to make an application for written reasons within 14 days after the decision takes effect.

   [2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 143(3).

3. The learned Adjudicator made his decision on 28 November 2013. Mr and Mrs Czdel received their copy of the written order on 29 November 2013.

4. The Tenants Union points out that Ms Bertelsen did not apply for reasons for the transcript, which was the reasons for decision, until 22 April 2014. Therefore, Ms Bertelsen’s statement that she did not receive the decision until 2 January 2014 is inexplicable.

5. On her own material, Ms Bertelsen should have filed and served her application for leave to appeal by 27 December 2013.  The tribunal registry was closed on that date.  2 January 2014 was the first date Ms Bertelsen could have filed her application.  The application was rejected on 2 January 2014 but accepted on 23 January 2014. Ms Bertelsen should have filed an application to extend time.

6. Given the very short time that transpired, I am prepared to extend time for the filing of the application for leave to appeal.

1. The learned Adjudicator found that Ms Bertelsen had not mitigated her loss because she listed the property for rent at a much higher rental than Mr and Mrs Czdel had paid.  The evidence about that was uncontested. Ms Bertelsen now says that $885 was market rent at the time.  She offers no evidence to support that submission and the evidence before the learned Adjudicator contradicts her.  Correspondence between the agent and Ms Bertelsen suggests a rent of $885 per week was too high[3]. The property stood vacant for four months when advertised at $885 per week.  That is the true indication of the market at the time.

   [3]Transcript page 1-9, lines 9 – 10.

1. The learned Adjudicator considered that Ms Bertelsen should have re-rented the property within six weeks.  He came to that view based on his experience of other claims for loss of rent within the tribunal.  There is no evidence to contradict the learned Adjudicator‘s view.  I am satisfied that the learned Adjudicator’s finding was reasonable and I can find no reason to come to a contrary view.

1. The amended claim was written in these terms:

…owner is seeking balance of outstanding rent to be paid up to date of property being re-let on the 1/11/13 – Less funds paid to owner from insurance claim…Please note owner ahs been paid rent from insurance” and “The owner is seeking the full rental bond as well as the balance of rent owing to cover loss of rent …less funds paid to her out of her insurance for loss of rent…”

1. If Ms Bertelsen had mitigated her loss, and re-rented the property within six weeks, the insurer would not have paid her $4,500, as according to her, it does not pay the first four weeks.  Therefore, Ms Bertelsen received the insurance payout as a direct result of her failure to mitigate.  She should not receive this compensation twice.

1. Ms Bertelsen’s claim for loss of rent was a net claim, after deducting the insurance payout.  The learned Adjudicator acted consistently in deciding the amount of rent Mr and Mrs Czdel should pay and then deducting the insurance.

1. There is no reasonably arguable case that the learned Adjudicator was in error.  Leave to appeal should be refused.