Elshohna v Property Pursuit

[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 addition to rent of $450 per week[1] under the Brisbane contract.

   [1]Transcript of hearing 24 July 2018 page 4 line 15.

5. The appellant claims that liability for rent of the subject property and of his Sydney residence amounts to extreme hardship, within the meaning of section 310 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), (‘the RTRAA’) entitling him to an order terminating the Brisbane contract.

6. Section 310 materially provides:

   The tenant may apply to the tribunal for a termination order because the tenant would suffer excessive hardship if the agreement were not terminated.

7. If excessive hardship is shown to the satisfaction of the tribunal, it has a discretion[2] to grant the order. The onus of proving excessive hardship lies solely upon the party seeking to terminate the tenancy agreement.[3]

   [2]The tribunal may make the order: RTRAA s 343.

   [3]Leddicoat v Walker [2010] QCATA 18 at [21].

8. What does ‘excessive hardship’ in this context mean? The RTRAA does not essay a definition. In that case the basic rule of statutory interpretation is that legislative provisions are to be construed according to their natural and ordinary meaning.[4] Assistance may be gained from cases decided in this tribunal, and from decisions on comparable legislation in other jurisdictions. But unsurprisingly most expositions end with the reflection that no abstract definition is possible, and that ultimately every decision depends on the facts and circumstances of the particular case.[5] The decision is one of judgment and degree:

   The word ‘hardship’ is not a word of [legal] art. It follows that it must be construed ... in a common-sense way ... such as would meet with the approval of ordinary sensible people. In my judgment the ordinary sensible man would take the view that there are two aspects of ‘hardship’ – that which the sufferer ... thinks he is suffering, and that which a reasonable bystander with knowledge of all the facts would think he was suffering.[6]

   [4]Marshall v Director General, Department of Transport (2001) 205 CLR 603 at 623.

   [5]Eg F.G. O’Brien Ltd v Elliott[1965] NSWLR 1473 at 1475 per Asprey J.

   [6]Rukat v Rukat [1975] Fam Div 63 at 73 per Lawton LJ.

9. ‘Hardship’ is itself an emphatic epithet The Oxford English Dictionary defines it as ‘severe suffering or privation’. Plainly it is a more powerful epithet than ‘inconvenience’, ‘concern’ or ‘worry’. And here it is accompanied by the superlative[7] qualifier, ‘excessive’. It would be difficult to devise a stricter formula.[8] Comparable provisions in other jurisdictions are somewhat less demanding.[9]

   [7]Ie ‘of the highest degree’.

   [8]‘At the very high end of the scale’: Man Ki Kim v Minister for Immigration and Ethnicl Affairs [1995] FCA 1088; 37 ALD 481 at 487 per Foster J.

   [9]For example Residential Tenancies Act 2000 (NSW) s 104 (‘undue hardship’); Residential Tenancies Act 1997 (ACT) s 44 (‘significant hardship’); Residential Tenancies Act 1995 (SA) s 89 (‘undue hardship’); Residential Tenancies Act 1999 (NT) s 99 (‘undue hardship’).

10. Usually, if not invariably, Queensland cases in favour of the tenant involve parties whose position is passive - the hardship is involuntary, rather than a consequence of a deliberately chosen course of action. Classic cases turn on illness or injury, as in Leddicoat v Walker[10], or financial difficulties beyond the tenant’s control.[11] Hardship, such as it is, did not simply befall this appellant. He visited it upon himself by his decision to relocate.[12] As the adjudicator observed –

    [T]here must be some hardship accrued per force of circumstance, and that circumstance emanates from the financial position, or sometimes a deterioration of health, sometimes an inability to access a premises [sic]...[13]

    [10][2010] QCATA 18.

    [11]Savari v Rent My Property Pty Ltd [2017] QCATA 14 (potential forfeiture of public housing for which the tenant had waited for 3 years); Igrowth Investments Pty Ltd v Brown [2018] QCATA 41 (tenant accepted by bank for debt relief).

    [12]Compare the (admittedly less cavalier) attitude of the tenant in Morrow v Sweeney [2013] QCAT 492, and the self-induced financial distress in Jacobs v Karagianis [2016] QCATA 153.

    [13]Transcript of hearing 24 July 2018 page 6 lines 7ff emphasis added.

11. Or as Pursuit submits –

    The applicant was not forced or ordered by his employers to relocate, the applicant elected on [his] own grounds to take a new job opportunity in NSW at [his] own choice.[14]

    [14]Pursuit’s written submissions 20 December 2018.

12. It is evident that the adjudicator made his decision on that basis. No error of law or unreasonableness is involved. There is a difference between suffering penury and walking into it. A similar case, in which the tenant failed, is Hayward & Anor v LJ Hooker Longreach[15], decided by a former President of QCAT. In that case the tenant was made redundant in Longreach, but was offered a position in Townsville. A magistrate, sitting as a member of QCAT, held that the application was not made out, and the tenant’s appeal was dismissed. 

    [15][2013] QCATA 221.

13. None of this is to criticise the appellant’s desire for personal and family advancement. But pursuit of that goal left an unsatisfied obligation in Brisbane. The judicial extinguishment of a contract is a serious matter, and the interests of the other party, as well as those of the applicant, cannot be ignored.[16] ‘There is a presumption that terms of tenancy agreements must be adhered to by the parties.’[17] The adjudicator evidently had this in mind when he observed:

    Mr Elshona may have liked the idea of taking up the [new] position … But that, in itself, does not justify simply walking away from a tenancy agreement.[18]

    [16]Cosick v Director of Housing [2007] VSC 486 at [45], [47]; Lang v Bissicks [2014] QCATA 166 at [9].

    [17]Hayward & Anor v LJ Hooker Longreach [2013] QCATA 221 at [29] per Wilson P.

    [18]Transcript page 6 lines 4ff.

14. In the adjudicator’s view, that should have been a consideration when the appellant decided to move and undertake a second, concurrent tenancy when the Brisbane contract still had 10 of its 12 months’ term to run. That was a circumstance that the adjudicator was entitled to consider. Even if excessive hardship is shown, other relevant matters may justly prevail. Section 343 of the RTRAA preserves the discretion – the tribunal may (not must) order termination.[19]

    [19]Hayward & Anor v LJ Hooker Longreach [2013] QCATA 221 at [29], emphasis added.

15. The applicant contends that he ‘had a terrible financial position that [sic] I was working full time as a researcher at UQ’.[20] However, the present application is based on his circumstances on moving Sydney.

    [20]Note filed in QCAT 18 December 2018.

16. According to Pursuit, the applicant’s financial position is better than that revealed at the hearing.[21] No particulars of this undisputed claim are given but, in any event, it does not affect the principle of the decision.

    [21]Pursuit’s submissions 20 December 2018.

17. As already noted, a section 310 ruling is discretionary. That said, it is appropriate to summarise the established approach to appeals from discretionary decisions.

18. The prerequisite of leave to appeal indicates a legislative intent[22] that primary decisions of the tribunal shall normally be final. An application for leave to appeal is not an opportunity to reargue the case anew. It is not an open licence to ‘second guess’ the original decision. The question is whether the would-be appellant presents a reasonable argument that legal error or irrationality substantially affected the primary decision. The question is not whether the appeal tribunal, in the shoes of the decision-maker, would necessarily have reached the same conclusion. Exceptionally, leave may be granted to examine a question of public importance, but few minor civil disputes meet that description. It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it deserves. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available.[23] Where reasonable minds may differ, a decision is not legally erroneous simply because one conclusion has been preferred to another possible view.[24]

    [22]QCAT Act ss 3(b), 4(b).

    [23]Fox v Percy (2003) 214 CLR 118 at 125-126.

    [24]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at

    [131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.

19. I can discern no legal error or miscarriage of discretion in the subject decision. There are no ‘compelling inferences’[25] that call for intervention. Leave to appeal must be refused.

    [25]Chambers v Jobling (1986) 7 NSWLR 1 at 10.

    ORDER

    Leave to appeal is refused.