Elshohna v Property Pursuit

Case [2019] QCATA 57

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Elshona v Property Pursuit  [2019] QCATA 57

PARTIES:

YASSER ELSHOHNA

(applicant)
v

PROPERTY PURSUIT

(respondent)

APPLICATION NO/S:

APL246-18

ORIGINATING APPLICATION NO/S:

MCDT1308/2018 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

01 May 2019

HEARING DATE:

30 April 2019

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

ORDERS:

The application for leave to appeal is dismissed.

CATCHWORDS:

RESIDENTIAL TENANCY – APPLICATION FOR TERMINATION OF LEASE – Residential Tenancies and Rooming Accommodation Act 2008 s 310 – meaning of excessive hardship’ – whether the instant facts and circumstances amount to excessive hardship – where tenant moved interstate to augment income – where respondent declines to terminate lease – where tenant claims obligation to service two leases is excessive hardship – whether tenant entitled to order under s 310 – where tenant’s application dismissed at first instance – whether exercise of discretion miscarried – where no appellable error shown – application for leave to appeal dismissed

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 32
Residential Tenancies Act 1997 (ACT), s 44

Residential Tenancies Act 2000 (NSW), s 104
Residential Tenancies Act 1999 (NT), s 99
Residential Tenancies Act 1995 (SA), s 89

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 310, s 343

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Chambers v Jobling (1986) 7 NSWLR 1

Cosick v Director of Housing [2007] VSC 486

F.G. O’Brien Ltd v Elliott[1965] NSWLR 1473.

Fox v Percy (2003) 214 CLR 118

Hayward & Anor v LJ Hooker Longreach [2013] QCATA 221http://

Igrowth Investments Pty Ltd v Brown [2018] QCATA 41

Jacobs v Karagianis [2016] QCATA 153

Lang v Bissicks [2014] QCATA 166
Leddicoat v Walker [2010] QCATA 18

Man Ki Kim v Minister for Immigration and Ethnicl Affairs [1995] FCA 1088; 37 ALD 481
Marshall v Director General, Department of Transport  (2001) 205 CLR 603

Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 61
Morrow v Sweeney [2013] QCAT 492
Rukat v Rukat [1975] Fam Div 63 at 73 per Lawton LJ
Savari v Rent My Property Pty Ltd [2017] QCATA 14.

Secretary of State for Education and Science v Tameside MBC [1977] AC 1014
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

  1. On 29 March 2018 the appellant leased residential premises (‘the subject property’) at Gordon Park, Brisbane, managed by the respondent Property Pursuit (‘Pursuit’).

  2. The lease (‘the Brisbane contract’) was for a period of 12 months, due to expire on 27 March 2019.

  3. On or about 18 May 2018 the appellant vacated the property to take up employment in Sydney, where he entered into another residential tenancy agreement. Pursuit declined to release him from the Brisbane contract.

  4. Consequently the appellant became liable to pay rent for his Sydney accommodation in…

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Elshohna v Property Pursuit [2019] QCATA 57
Case
[2019] QCATA 57
Decision Date

CaseChat Overview and Summary

The matter of Elshohna v Property Pursuit involved a dispute between the tenant, Elshohna, and the landlord, Property Pursuit. Elshohna sought an order for the termination of a residential lease under section 310 of the Residential Tenancies and Rooming Accommodation Act 2008, arguing that the obligation to service two leases constituted excessive hardship. The landlord, Property Pursuit, opposed the application, asserting that the circumstances did not amount to excessive hardship warranting the termination of the lease. The case was initially heard by the tribunal, which dismissed Elshohna's application. Dissatisfied with this outcome, Elshohna sought leave to appeal to a higher court, arguing that the tribunal had miscarried in its exercise of discretion.

The primary legal issue before the court was whether the facts and circumstances presented by Elshohna constituted "excessive hardship" within the meaning of section 310 of the Act. The court was required to determine if the tribunal's decision to deny the application for termination of the lease was justified. This involved examining the nature and extent of the hardship, as well as the balance between the rights of the tenant and the landlord under the Act. The court's analysis also needed to consider the standard of review for decisions made by the tribunal, focusing on whether the tribunal had made an error in its exercise of discretion.

The court found that the tribunal had correctly exercised its discretion in dismissing Elshohna's application for termination of the lease. It held that the tribunal's assessment of the facts and circumstances did not reveal any errors or misapplication of the law. The court concluded that there was no evidence to suggest that the tribunal had overlooked or misunderstood any relevant considerations, and thus, the exercise of discretion did not miscarry. Consequently, the application for leave to appeal was dismissed, affirming the tribunal's decision that the circumstances did not amount to excessive hardship.

Orders

Orders of the court

The application for leave to appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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