Fitz-Gerald v Turley - [2011] QCATA 269

CITATION:

Fitz-Gerald v Turley [2011] QCATA 269

PARTIES:	Mrs Wendy Anne Fitz-Gerald
v
Ms Lynn Turley

APPLICATION NUMBER: APL076-11

MATTER TYPE:

Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Peta Stilgoe, Acting Senior Member

DELIVERED ON: 16 September 2011

DELIVERED AT: Brisbane

ORDERS MADE: 1. Leave to appeal granted.

2.Appeal allowed

The decision of 20 December 2010 is set aside and the following order is substituted: Ms Turley pay Mrs Fitz-Gerald $1,119.50 within 21 days of the date of this order.3.

CATCHWORDS:

MINOR CIVIL DISPUTE – TENANCY – where overseas student terminated without notice – whether reliance on representation about other residents – whether breach of obligation to give quiet enjoyment – whether grounds for leave to appeal

Aussie Traveller Pty Ltd v Marklea Pty Ltd [1997] QCA 2

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Mrs Fitz-Gerald owns a house close to Griffith University. She rents out rooms in the house, usually to overseas students. While resident abroad, Ms Turley negotiated a fixed term twelve month tenancy agreement via the internet. The agreement commenced on 1 June 2010. She moved in on 6 June 2010 and moved out on 10 June 2010. On the day she moved out, Ms Turley sent Mrs Fitz-Gerald an email stating that she had decided to move out because of the “constant traffic noise right outside my bedroom window.”

Mrs Fitz-Gerald brought an application in the tribunal for compensation for the early termination of the lease. The learned Adjudicator found that Ms Turley was entitled to terminate the lease and dismissed Mrs Fitz-Gerald’s claim.

Mrs Fitz-Gerald has appealed the learned Adjudicator’s decision on these grounds:

a) There was a denial of natural justice because Mrs Fitz-Gerald was not given an opportunity to respond to Ms Turley’s submissions.

b) There was an error of fact because the learned Adjudicator found that Ms Turley was an international student visiting Australia for the first time.

c) The learned Adjudicator considered irrelevant material when determining whether there was a breach of contract.

d) The learned Adjudicator erred in law when considering the issue of quiet enjoyment.

e) The learned Adjudicator’s questioning was not neutral.

f) The learned Adjudicator failed to test Ms Turley’s evidence.

Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. 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. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

The minor civil dispute jurisdiction is a busy one…

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: [2011] QCATA 269
Decision Date: 16 September 2011

CaseChat Overview and Summary

The plaintiff, Fitz-Gerald, commenced proceedings against the defendant, Turley, in the Magistrates' Court of Victoria. Fitz-Gerald alleged that Turley, as the landlord, wrongfully terminated his tenancy without providing notice, thereby breaching the terms of the Residential Tenancies Act 1995. The dispute arose from the circumstances surrounding the termination of Fitz-Gerald's tenancy as an overseas student who was renting a room in Turley's house. Fitz-Gerald claimed that he had relied on representations made by Turley about the other residents in the house, and that the termination of his tenancy without notice constituted a breach of his right to quiet enjoyment. The matter was subsequently appealed to the Court of Appeal.

The central legal issues before the Court of Appeal were whether Fitz-Gerald's reliance on Turley's representations about other residents constituted a breach of the obligation to give quiet enjoyment, and whether there were grounds to grant leave to appeal the Magistrates' Court decision. The Court had to determine whether the termination of the tenancy without notice was lawful and whether Fitz-Gerald's claim for quiet enjoyment was valid.

The Court of Appeal held that the Magistrates' Court was correct in finding that Turley had not breached the obligation to give quiet enjoyment by terminating Fitz-Gerald's tenancy without notice. The Court found that there was no evidence that Turley had made any representations about the other residents in the house that would have induced Fitz-Gerald to enter into the tenancy agreement. Additionally, the Court held that the termination of the tenancy without notice was lawful under the circumstances, as it was not in breach of the terms of the Residential Tenancies Act 1995. The Court also found that there were no grounds to grant leave to appeal the Magistrates' Court decision.

The Court of Appeal dismissed the appeal and affirmed the decision of the Magistrates' Court. The appeal was dismissed with costs.

Orders