Donnelly v Ray White Cairns Beaches - [2022] QCATA 30

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Donnelly v Ray White Cairns Beaches & Ors [2022] QCATA 30

PARTIES: ROBERT JOSEPH DONNELLY

(applicant)

v

RAY WHITE CAIRNS BEACHES, ALANNA STIRLING & PAUL STIRLING

(respondents)

APPLICATION NO:

APL359-20

MATTER TYPE:

Residential tenancy matters

DELIVERED ON:

10 February 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – RESIDENTIAL DISPUTE – premature termination by tenant of fixed term lease – where ground relied on is excessive hardship - where notice of intention to leave not followed by an application to the tribunal to terminate the lease – where lease remained on foot – where counterclaim for overdue rent and other items – where rent for eight weeks awarded, with reasons – where difficulties of appeal against discretionary order explained - whether medical evidence might have established hardship if requisite application to tribunal had been made – where no issue as to adequacy of medical evidence was or could be raised - where no appellable error shown – where application for leave dismissed

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 31, s 61, s 142
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 310

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359
Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330

House v The King (1936) 55 CLR 499

International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257

Robinson v Corr [2011] QCATA 302

The Pot Man Pty Ltd v Reaoch [2011] QCATA 318
W (an infant), In re [1971] AC 682

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Introduction

A tenancy at Cooran on South Stradbroke Island (`the premises’) has given rise to the claim and counterclaim that constitute these proceedings.
The premises were the property of Alanna and Paul Stirling and were managed by the firm of Ray White Cairns Beaches (`the Agent’). For convenience sake I shall refer to the Stirlings and Ray White Beaches collectively as `RW’.
On 7 July 2020 the applicant Donnelly leased the premises from 13 July to 12 January 2021.
Lessee vacates - exceptional hardship ground
On 7 August 2020 Donnelly notified RW that he would vacate the premises on 22 August 2021 on these grounds:
Re-occurrence of medical condition. [U]ncertain/limited ferry services to mainland creates excessive hardship.
On 10 August 2020 Donnelly wrote to the Agent in part:
I will contest any attempt to hold me liable for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QCATA 30
Decision Date: 10 February 2022

CaseChat Overview and Summary

In Donnelly v Ray White Cairns Beaches, the primary issue was the premature termination by the tenant of a fixed-term lease. The tenant argued that the termination was justified on the ground of excessive hardship. The matter came before the court as an application for leave to appeal a decision that dismissed the tenant’s claim. The respondent, Ray White Cairns Beaches, had argued that the lease remained in effect and that the tenant had not followed the requisite steps under the Residential Tenancies Act, specifically not lodging an application to the tribunal to terminate the lease after providing notice of intention to leave.

The legal issues the court had to resolve included whether the appeal was based on an appellable error and whether the tenant could establish excessive hardship. The court examined whether the tenant had provided sufficient evidence to support the claim of hardship and whether the tribunal's discretion in awarding rent could be effectively appealed. The court found that the difficulties of appealing a discretionary order were substantial, and that the tenant's failure to lodge an application to the tribunal precluded them from establishing hardship. Additionally, the court determined that there was no issue regarding the adequacy of the medical evidence presented.

The court concluded that the tenant had not demonstrated an error of law that warranted leave to appeal. The reasoning focused on the procedural non-compliance with the statutory requirements for hardship claims and the inherent difficulties in appealing a discretionary decision. The court found no appellable error and dismissed the application for leave to appeal. The court further explained that had the requisite application been made to the tribunal, the medical evidence might have supported a hardship claim. However, since the application was not made, the court could not grant leave to appeal.

The final order of the court was that the application for leave to appeal was dismissed.

Orders

Orders of the court

The application for leave to appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Donnelly v Ray White Cairns Beaches & Ors [2022] QCATA 30
PARTIES:	ROBERT JOSEPH DONNELLY
(applicant)
v
RAY WHITE CAIRNS BEACHES, ALANNA STIRLING & PAUL STIRLING
(respondents)
APPLICATION NO:	APL359-20
MATTER TYPE:	Residential tenancy matters
DELIVERED ON:	10 February 2022
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Dr J R Forbes
ORDERS:	The application for leave to appeal is dismissed.
CATCHWORDS:	APPEAL – APPLICATION FOR LEAVE TO APPEAL – RESIDENTIAL DISPUTE – premature termination by tenant of fixed term lease – where ground relied on is excessive hardship - where notice of intention to leave not followed by an application to the tribunal to terminate the lease – where lease remained on foot – where counterclaim for overdue rent and other items – where rent for eight weeks awarded, with reasons – where difficulties of appeal against discretionary order explained - whether medical evidence might have established hardship if requisite application to tribunal had been made – where no issue as to adequacy of medical evidence was or could be raised - where no appellable error shown – where application for leave dismissed Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 31, s 61, s 142 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 310 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 House v The King (1936) 55 CLR 499 International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 Robinson v Corr [2011] QCATA 302 The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 W (an infant), In re [1971] AC 682
APPEARANCES & REPRESENTATION:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)