Elgey v Felix Grasso Real Estate

[2011] QCATA 121

CITATION: Elgey v Felix Grasso Real Estate [2011] QCATA 121

PARTIES:	Kim Elgey (Applicant/Appellant)
v
Felix Grasso Real Estate (Respondent)

APPLICATION NUMBER:   APL177-10

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 24 May 2011

DELIVERED AT: Brisbane

ORDERS MADE:    

Leave to appeal refused.

CATCHWORDS: 

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where Ms Elgey and her brother were co-tenants in residential premises pursuant to a General Tenancy Agreement – where a Magistrate ordered the lease be terminated from 4 August 2010 on the grounds of excessive hardship and, also, that Ms Elgey pay Felix Grasso Real Estate (the agent) $3,121.50; that Mr Screen pay the agent $1,040.50; and that the bond of $2,160 be paid out to the real estate agent in part satisfaction of the order against Ms Elgey – where Ms Elgey seeks leave to appeal that decision – whether leave to appeal should be granted

Residential Tenancies and Rooming Accommodation Act 2008, s 310

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. Ms Elgey and her brother Kevin Screen were co-tenants in residential premises at Mooroobool pursuant to a General Tenancy Agreement commencing on 22 February 2010.  The respondent, Felix Grasso Real Estate, is the lessor’s agent.

2. In July 2010 Ms Elgey began proceedings in QCAT’s Minor Civil Disputes jurisdiction seeking an order that the tenancy might be terminated on grounds of excessive hardship, under s 310 of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA). 

3. The matter came on for hearing before a Magistrate sitting as a QCAT ordinary Member who heard evidence from Ms Elgey, Mr Screen, and a representative of the real estate agent and, then, ordered a termination of the lease from 4 August 2010 (on grounds of excessive hardship) and, also, that Ms Elgey pay the agent $3,121.50; that Mr Screen pay the agent $1,040.50; and that the bond of $2,160 be paid out to the real estate agent in part satisfaction of the order against Ms Elgey.

4. Ms Elgey seeks leave to appeal that decision.  Her grounds of appeal seem to involve a submission that she was, by arrangement with the agent or the landlord, paying her ‘share’ of $300 (against the weekly rent for the whole premises of $540) but her brother, Mr Screen, was not fulfilling his obligation to pay the balance of $240 each week.  She also seems to dispute an amount awarded against her of $500 for water usage, and to allege that the entire bond should have been repaid to her.

5. By order of this Appeal Tribunal the matter was heard and determined on the papers by written submissions from the parties.  Ms Elgey’s submissions are on the lines just set out, with some more details: she says that, in February 2009, she arranged the tenancy and paid the full bond to move into the premises with her brother, with a view to helping him re-establish himself after a marriage breakdown.  Unfortunately, she says, his heavy drinking and loud music affected her welfare and that of her two sons; and then, in April 2010, her brother vacated without notice.  He agreed to continue to pay $240 per week towards the rent until the end of the lease in February 2011 but, then, fell into arrears.

6. In June 2010 Ms Elgey proposed to the landlord that her brother’s name might be removed from the lease, but that suggestion was rejected.

7. It is clear from the evidence before the learned Magistrate that, notwithstanding the terms of the tenancy agreement, the lessor and the real estate agent knew (and accepted) that Ms Elgey was paying $300 towards the rent each week, and her brother was paying the balance; and, that she had continued to pay her ‘share’, but he had not.

8. It is also clear that the learned Magistrate accepted Ms Elgey’s submission that she could not continue with the tenancy alone and that it should be terminated on the grounds of excessive hardship.  The lessor and the agent have not disputed that decision; neither, as I understand her case, does Ms Elgey.  Rather, her complaint is about the orders the Magistrate then made about rent and outgoings. 

9. The obligation to pay rent up until the date upon which the lease was to be terminated was shared between Ms Elgey and Mr Screen with, as I understand it, a slight adjustment against her because she had remained in occupation after he left, but with full credit to her for the bond monies she had paid.

[10]  It is not apparent how these calculations involved any error, unfairness or injustice to Ms Elgey.  She disputes the learned Magistrate’s finding that she should pay three quarters of all outstanding sums, but that proportion was obviously affected by the Magistrate’s conclusion that she (and perhaps her boyfriend) had been utilising the premises formerly occupied by Mr Screen.  The evidence shows that a finding to that effect was reasonably open.

[11]  In the absence of any apparent error, nothing in Ms Elgey’s application points to an entitlement to an order that she have leave to appeal.  Leave is refused.