Fenton v Cooke Property Agents

[2013] QCATA 327

CITATION: Fenton v Cooke Property Agents [2013] QCATA 327

PARTIES:	Andrew Joseph Fenton (Applicants)
V
Cooke Property Agents (Respondents)

APPLICATION NUMBER: APL161-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Hon K Cullinane AM QC, Judicial Member

DELIVERED ON: 10 July 2013

DELIVERED AT: Brisbane

ORDERS MADE: The application is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where applicant made claim for excessive hardship – where Tribunal ordered payment of half of the rent to the applicant – where applicant seeks leave to appeal that decision – whether leave should be granted

Queensland Building Services Authority v Macdonald (2012) QCATA 237, cited

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.

REASONS FOR DECISION

1. This is an application for leave to appeal under s 142 of the Queensland Civil and Administrative Tribunal Act 2009 in a minor civil dispute. To obtain such leave it is necessary to show some good reason for the grant of such leave. As was said in Queensland Building Services Authority v Macdonald (2012) QCATA 237 at [9]:

   Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage; or there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.

2. Here what is involved is a claim of excessive hardship by a tenant. Whilst the circumstances are a little unusual in that the applicant never entered  possession although four weeks rent were paid the Tribunal examined the applicant as to his financial circumstances and the rental of premises in Cairns for which he had taken a tenancy.

3. The Tribunal did not accept that what he had been told about the dogs (assuming their existence) could justify the termination of the lease. This and the applicant’s circumstances led the Tribunal to order the payment to the applicant of one half of the rental paid.

4. The matter raises no important question nor gives rise to any basis for the grant of leave to appeal. It turns on its own particular circumstances.

5. I should mention that the applicant in a letter accompanying the application says something which involves something of a misunderstanding about the Tribunal’s finding and is in any case not germane to the issue the Tribunal was concerned with. I mention this only because the applicant raises it. There was no finding of the kind suggested.

6. The tenancy agreement does describe the applicant’s wife as one of the tenants and made a provision for her to sign. However the brief evidence suggests that the applicant and his wife and the agent were present when the document was signed by the applicant and the agent. There is nothing to suggest that what happened did not involve the acquiescence of all concerned.

7. It is not in any case relevant to the matter this application is concerned with.

8. The application is refused.