City Group Realty v Smeaton

[2013] QCATA 129

CITATION: City Group Realty v Smeaton [2013] QCATA 129

PARTIES:	City Group Realty (Applicant/Appellant)
v
Mr Lee Smeaton (Respondent)

APPLICATION NUMBER: APL070-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 8 May 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1. Leave to appeal refused

CATCHWORDS:

MINOR CIVIL DISPUTE – where notice to leave before the end of fixed term tenancy – where tenants left – where declaration that tenancy at an end – whether tenant entitled to terminate fixed term tenancy

Residential Tenancies and Rooming Accommodation Act 2008 ss 173(2), 277(4), 327, 362,

Cachia v Grech [2009] NSWCA 232

Chambers v Jobling (1986) 7 NSWLR 1

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

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 (QCAT Act).

REASONS FOR DECISION

1. Mr Smeaton was a tenant in a property managed by City Group Realty. He and his co-tenant Mr Rodi gave a notice of intention to leave on 14 November 2012. They intended to leave on 1 January 2013. In fact, they left on 14 January 2013.

2. Mr Smeaton and Mr Rodi applied to terminate the tenancy. The learned Adjudicator found that the tenancy was terminated by the notice and the fact of leaving. He declared that the tenancy ended on 14 January 2013 by the operation of s 277(4) of the Residential Tenancies and Rooming Accommodation Act 2008.

3. City Group Realty wants to appeal that decision. It says that s 277(4) is not relevant to a fixed tenancy. It says that s 277 applies only when the tenancy is close to its end or has already ended. It says the learned Adjudicator has to consider s 173 and s 362.

4. Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the Appeals Tribunal, would be to the public advantage?[4]

   [1]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [2]        Cachia v Grech [2009] NSWCA 232 at 2.

   [3]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.

1. Section 277(4) allows a tenant to end a tenancy by giving notice of intention to leave and handing over the tenancy on or after the nominated date. That is what Mr Smeaton and Mr Rodi did. The Act does not limit its operation to times when the tenancy is about to end. The Act does not state that the section does not apply to fixed term tenancies.

1. Section 173(2) deals with terms of agreements that are void because they impose penalties on a tenant for breach. It is not relevant in a dispute about termination.

1. Section 362 deals with the lessor’s duty to mitigate loss. This may be relevant to an application for compensation but it is not relevant in a dispute about termination.

1. As the learned Adjudicator pointed out during the hearing,[5] a notice of intention to leave under s 327 given for a fixed term tenancy agreement is “not ineffective” merely because the handover date is earlier than the end of the term.

   [5]        Transcript at about 7:10.

1. At the hearing, the learned Adjudicator took care to explain the difference between termination and compensation to City Group Realty’s representative. It is clear from the application for leave to appeal that the difference between the two concepts still eludes City Group Realty.

1. There is no question of general importance that should be determined by the Appeals Tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.