Gorman v Berrell - [2019] QCATA 73

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gorman & Anor v Berrell & Anor [2019] QCATA 73

PARTIES:

WILLIAM GORMAN
TONI GORMAN
(applicants/appellants)

v

ROBERT BERRELL
PATRICIA BERRELL

(respondents)

APPLICATION NO/S:

APL211-18

ORIGINATING APPLICATION NO/S:

MCDT 102/18

MATTER TYPE:

Appeals

DELIVERED ON:

29 May 2019

HEARING DATE:

30 January 2019

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

ORDERS:

1. Leave to appeal granted on 30 January 2019.

2. Appeal dismissed.

CATCHWORDS:

APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where the tenants signed a fixed term residential tenancy agreement – where the tenants were not given vacant possession of the described premises – where the lessors were living in the granny flat on the premises – where the agent deliberately failed to disclose pre contract – where the tenants refused to move in – where the lessors claimed compensation for loss of rent for break lease and damages – where the tenants counter applied for bond refund, prepaid rent, storage cost and temporary alternative accommodation expenses – where the tribunal found the tenants acted reasonably in cancelling the tenancy because of the non-disclosure – where tenant’s counter claim allowed and lessors dismissed – whether appealable error.

Queensland Civil and Administrative TribunalAct 2009 (Qld) s 13(1)
Residential Tenancy and Rooming Accommodation Act 2008 (Qld) ss 4, 9, 173, 182, 183, 277, 327, 331, 332, 359, 360, 419, 420, 421

APPEARANCES & REPRESENTATION:

Applicant:

J Voss, Blue Moon Property Pty Ltd, for the applicants.

Respondents:

Self-represented

REASONS FOR DECISION

Leave to appeal was granted on 30 January 2019 to allow the appellants on the question of whether the tribunal orders are within the permissible range of orders open to the tribunal.
The context
The appellants own both the house at 34 and adjacent granny flat at 32 Gleneagle Street, Buderim. They claim that the premises are misdescribed as 32 in item 5.1 of the tenancy agreement instead of 34. According to them the lessor obligations in ss 182-183 Residential Tenancy and Rooming Accommodation Act 2008 (RTRA Act) to ensure the tenant has vacant possession only apply to “the premises” they are entitled to occupy under the agreement which in this case was #34 not #32.
However, under s 9 RTRA Act “premises” for a residential premises includes the land it occupies and the respondents say that the agent led them to believe that the granny flat was on the same block as the house. A finding that the respondents were entitled to exclusive enjoyment of the granny flat at #32 for the full term of the agreement was, therefore, open to the tribunal.
It is undisputed that before signing the tenancy agreement the respondents were told by the property agents that a “young male relative” living in the granny flat at the inspection date would be moving out before their right to occupy commenced and that no one, including the owners, would be living there after that.
The appellants moved into the granny flat before the start date and planned to…

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.

Continue reading Gorman v Berrell

Details

AGLC: Gorman v Berrell [2019] QCATA 73
Case: [2019] QCATA 73
Decision Date: 29 May 2019

CaseChat Overview and Summary

Gorman and Berrell were tenants who had entered into a fixed term residential tenancy agreement for premises owned by the respondents, the lessors. The dispute arose when the tenants were not given vacant possession of the premises as agreed, because the lessors were residing in a granny flat on the property. Additionally, the agent for the lessors had failed to disclose this prior to the contract being signed. Upon discovering the non-disclosure, the tenants refused to move in and cancelled the tenancy agreement. The lessors subsequently sought compensation for the loss of rent due to the break lease and for damages, while the tenants counter-applied for a refund of their bond, prepaid rent, storage costs, and expenses for temporary alternative accommodation.

The legal issues before the court were whether the tenants had acted reasonably in cancelling the tenancy agreement due to the non-disclosure, and whether the lessors were entitled to compensation for the loss of rent and damages. The tribunal had found that the tenants' decision to cancel was reasonable, leading to the dismissal of the lessors' claim and the allowance of the tenants' counter-claim. The lessors appealed, arguing that there was an error in the tribunal's decision.

The court found that the tribunal had correctly assessed the tenants' actions as reasonable, given the circumstances of non-disclosure and the lessors' failure to provide vacant possession. The tribunal's decision was upheld as it was based on a proper application of the law and the evidence presented. Consequently, the appeal was dismissed, and the lower court's orders were affirmed. The tenants were awarded their bond refund, prepaid rent, storage costs, and expenses for temporary alternative accommodation, while the lessors' claim for compensation was rejected.

Orders

Orders of the court

1. Leave to appeal granted on 30 January 2019.

2. Appeal 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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CITATION:	Gorman & Anor v Berrell & Anor [2019] QCATA 73
PARTIES:	WILLIAM GORMAN TONI GORMAN (applicants/appellants)
v
ROBERT BERRELL PATRICIA BERRELL (respondents)
APPLICATION NO/S:	APL211-18
ORIGINATING APPLICATION NO/S:	MCDT 102/18
MATTER TYPE:	Appeals
DELIVERED ON:	29 May 2019
HEARING DATE:	30 January 2019
HEARD AT:	Brisbane
DECISION OF:	Justice Carmody
ORDERS:	1. Leave to appeal granted on 30 January 2019. 2. Appeal dismissed.
CATCHWORDS:	APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where the tenants signed a fixed term residential tenancy agreement – where the tenants were not given vacant possession of the described premises – where the lessors were living in the granny flat on the premises – where the agent deliberately failed to disclose pre contract – where the tenants refused to move in – where the lessors claimed compensation for loss of rent for break lease and damages – where the tenants counter applied for bond refund, prepaid rent, storage cost and temporary alternative accommodation expenses – where the tribunal found the tenants acted reasonably in cancelling the tenancy because of the non-disclosure – where tenant’s counter claim allowed and lessors dismissed – whether appealable error. Queensland Civil and Administrative TribunalAct 2009 (Qld) s 13(1) Residential Tenancy and Rooming Accommodation Act 2008 (Qld) ss 4, 9, 173, 182, 183, 277, 327, 331, 332, 359, 360, 419, 420, 421
APPEARANCES & REPRESENTATION:
Applicant:	J Voss, Blue Moon Property Pty Ltd, for the applicants.
Respondents:	Self-represented