Graham v PSF Utopia Holdings Pty Ltd t/as Utopia Rentals

[2014] QCATA 122

CITATION: Graham v PSF Utopia Holdings Pty Ltd t/as Utopia Rentals [2014] QCATA 122

PARTIES:	Peter John Graham (Applicant/Appellant)
v
PSF Utopia Holdings Pty Ltd t/as Utopia Rentals (Respondent)

APPLICATION NUMBER: APL437 -13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Thomas, President

DELIVERED ON: 30 April 2014

DELIVERED AT: Brisbane

ORDER MADE: The application for leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR  CIVIL DISPUTE – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 142(3)(a)(i)

Chambers v Jobling (1986) 7 NSWLR 1, cited
Dearman v Dearman (1908) 7 CLR 549, cited
Fox v Percy (2003) 214 CLR 118, cited
Pickering v McArthur [2005] QCA 294, applied

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 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Mr Graham and his family planned a move from Melbourne to the Sunshine Coast for two years. In December 2012, he signed a one-year tenancy agreement for a house at Noosa Heads which was managed by PSF Utopia Holdings Pty Ltd t/as Utopia Rentals (Utopia Rentals).

2. Unfortunately, Mr Graham and his family arrived just before an extended period of heavy rain. At around the same time, ownership of the house changed and the new owner wanted to do some repair work that was identified in the building inspection report. Mr Graham advised Utopia Rentals that he thought those repairs were extensive and intrusive and should not be undertaken while he was living at the house.

3. In an email dated 11 March 2013, Mr Graham advised Utopia Rentals that:

   My wife does not like it on the Sunshine Coast and is taking my children back to Melbourne.

   I have no choice but to return with them.

   …

   I am hoping you can show some compassion in regard to breaking the lease.

4. Mr Graham left on 18 March 2013. He agreed that his bond could be used to pay rent up to 12 April 2013. Utopia Rentals relet the house on 23 May 2013. It then filed an application for compensation for the period 12 April to 23 May. A Magistrate, sitting as a member of the tribunal, ordered that Mr Graham pay the break lease fee and an additional two weeks rent.

5. Mr Graham wants to appeal that decision. He believes that there was significant storm damage to the house which justified a termination of the tenancy. He says that the learned Magistrate did not take account of the time required for repair of the house. He says that the lessor did not take steps to mitigate the loss.

6. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] The principles that the appeal tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as his Honour then was) in Pickering v McArthur:

   There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

   [1]QCAT Act, s142(3)(a)(i).

   [2][2005] QCA 294 at [3].

1. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[3]  An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[4] 

   [3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

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

1. The learned Magistrate considered all of the matters Mr Graham now raises. She found there was some failure to mitigate loss, so she reduced Utopia’s claim from 10 weeks to 6 weeks.[5]  The learned Magistrate considered Mr Graham’s claim of hardship and, correctly, remarked that a tenant cannot “just get out of” a tenancy agreement by claiming hardship and doing nothing else.[6] The learned Magistrate also observed that there was no evidence before her, or complaint by Mr Graham, to suggest that the house was unliveable.

   [5]Transcript page 1-17, lines 11-13.

   [6]Transcript page 1-15 lines 10-14.

1. The evidence supports the learned Magistrate’s findings. There is nothing in the transcript to persuade me that she should have taken a different view of the facts. The findings of the learned Magistrate were open based on the evidence. There is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal should be refused.