Hayward & Anor v LJ Hooker Longreach - [2013] QCATA 221

CITATION:

Hayward & Anor v LJ Hooker Longreach[2013] QCATA 221

PARTIES:	Douglas Ross Hayward Rosalie Anne Frost (Appellants)
v
LJ Hooker Longreach (Respondent)

APPLICATION NUMBER:

APL104-13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON:

5 August 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal granted.

2. The decision of 14 January 2013 is confirmed.

3. Appeal dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where applicants entered into tenancy agreement for property managed by the respondent – where applicant’s position in the Queensland Public Service was made redundant – where the applicant was offered new position in a different city – where applicants gave notice of intention to leave and vacated the property – where condition of applicant’s employment provided for reimbursement of expenses and other costs associated with relocation – where applicants applied for termination of tenancy agreement on grounds of excessive hardship under s 310 of the Residential Tenancies and Rooming Accommodation Act 2008 – where Tribunal found applicants would not suffer excessive hardship if tenancy agreement was not terminated – where applicants seek to appeal that decision – whether applicants established grounds for excessive hardship – whether leave to appeal should be granted

PRACTICE AND PROCEDURE – NATURAL JUSTICE – BIAS – where Magistrate referred to lessor as the ‘innocent landlord in this matter’ – whether comments amount to reasonable bias – whether breach of natural justice

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

Douglas Hayward and his partner Rosalie Frost were tenants in a house at Bluebird Court, Longreach which was managed, for its owner, by LJ Hooker Longreach. The tenancy agreement was for a fixed term between 21 December 2011 and 20 December 2012. The weekly rent was $420.00, and the rental bond was $1680.00.
In August 2012, Mr Hayward’s position in the Queensland Public Service was made redundant. Shortly after that time he was offered a new position with the Public Service in Townsville. However, acceptance of that position meant he was required to move to Townsville as early as late September.
LJ Hooker Longreach was given a notice of intention of leave without grounds dated 24 September 2012. The notice shows Mr Hayward and Ms Frost intended to give up vacant possession on 26 October 2012 (‘the handover date’).
Section 277 of the Residential Tenancies and Rooming Accommodation Act 2008 (‘RTRA Act’) sets out the ways in which a tenancy agreement ends. Those circumstances include where the tenant gives a notice of intention to leave the premises to the lessor; and hands over vacant possession of the premises on or after the handover day.[1]
[1]RTRA Act s 277(3).
There are minimum notice periods which must be given. If a notice is given without grounds for a fixed term agreement, the handover day must not be earlier than the day the term the agreement ends.[2] It appears, then, the tenancy agreement could not be terminated until 20 December 2012, or until a new tenant was found.
[2]Ibid s 332(2)(g).
Between 24 September and 18 October 2012, Mr Hayward was living in temporary lodging while waiting to secure permanent accommodation in Townsville. During this time Mr Hayward was entitled to, and it appears received, relief for the cost of that temporary accommodation pursuant to a public service document relevant to his employment, Directive No. 11/11 “Transfer and Appointment Expenses”.
The directive was made under s 54(1) of the Public Services Act 2008 to assist with the payment or reimbursement of expenses and other matters associated with the appointment, transfer, redeployment and promotion of a public service officer from one centre to another. So far as it relates to temporary board and lodging, the directive provides that Mr Hayward was entitled to reasonable expenses for temporary accommodation expenses, and extra for meal expenses, depending on the type of accommodation.[3] Mr Hayward submits that 75% of the costs for his temporary accommodation were paid for by the Queensland Government.[4] (It is not clear, on the facts before the Tribunal, what type of accommodation Mr Hayward resided in during this time, and whether he was also entitled to reimbursement for meal expenses.)
[3]Minister for Education and Industrial Relations, Directive No. 11/11 “Transfer and Appointment Expenses”, 1 September 2011, 3-4.
[4]Transcript of Proceedings, Hayward & Anor v LJ Hooker (QCAT, MCDT008/12, Magistrate O’Shea, 14 January 2013) 7.
On 18 October 2012, Mr Hayward and Ms Frost entered into a fixed term tenancy agreement for premises in Townsville. The weekly rent was $520.00.
After vacating the premises in Longreach, the rent was paid up to 23 November 2012.[5]
[5]Ibid 5, 13.
On 16 November 2012, Mr Hayward and Ms Frost commenced proceedings in the Minor Civil Dispute jurisdiction of the Tribunal seeking to terminate the Longreach tenancy agreement on the ground of excessive hardship.
In their submissions they assert that LJ Hooker ‘had been negligent in discharging their obligations under the [RTRA Act] to mitigate loss and as such, they… compounded the hardship’[6] alleged to have been suffered by Mr Hayward and Ms Frost. It was also contended that LJ Hooker had, in fact, attempted to ‘deliberately frustrate the acquisition of new tenants.’ [7] Mr Hayward and Ms Frost sought orders of the Tribunal to terminate the tenancy agreement as at the handover date, and for reimbursement of the rental bond and any rent paid after 26 October 2012.
[6]Douglas Hayward, ‘Affidavit’ Submissions in Hayward & Anor v LJ Hooker, MCDT008/12, 12 December 2012, 13.
[7]Ibid 12.
On 14 January 2013 the matter was heard and determined by a Magistrate sitting as a member of the Tribunal. The learned Magistrate took evidence from both parties and, after a short adjournment, held that the application was not made out. In her reasons, the learned Magistrate accepted that the discretion to terminate a tenancy agreement because of excessive hardship would be warranted in some circumstances where a tenant had to relocate because of a job transfer; but the current circumstances did not warrant the exercise of that discretion.[8]
[8]Transcript of Proceedings, Hayward & Anor v LJ Hooker (QCAT, MCDT008/12, Magistrate O’Shea, 14 January 2013) 16.
Mr Hayward and Ms Frost seek to appeal that decision. They may appeal as of right on a question of law[9] but need the leave of the Appeal Tribunal if they wish to appeal on questions of fact, or mixed law and fact.[10] As will be seen, their grounds of appeal involve questions of mixed law and fact. Leave to appeal is necessary.[11]
[9]QCAT Act s 142.
[10]Ibid s 142(3)(b).
[11]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i) (‘QCAT Act’).
The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[12] Is there a reasonable prospect that the applicant will obtain substantive relief?[13] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[14] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[15]
[12]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[13]Cachia v Grech [2009] NSWCA 232 at 2.
[14]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[15]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The grounds upon which the application for leave to appeal are based may be summarised as:
a) an allegation that the Magistrate did not observe the rules of natural justice; and
b) an error on the part of the learned Magistrate in not finding that Mr Hayward and Ms Frost would suffer excessive hardship if the tenancy agreement was not terminated.
Denial of natural justice
The following seem to be the complaints made by Mr Hayward and Ms Frost about the hearing:
·The Magistrate failed to deal with the matter in a fair and equitable manner;
·The Magistrate failed to fully consider the facts of the matter;
·The Magistrate failed to properly consider the provisions of the legislation;
·The Magistrate failed to adequately consider the merits of the arguments put forward by the applicants;
·The Magistrate failed to properly consider relevant precedents of the Tribunal and relevant case law;
·The Magistrate displayed bias against the appellants and in favour of the respondent.
The transcript of the proceedings does not support these allegations. It shows that the learned Magistrate examined all the material before her and proceeded to afford Mr Hayward adequate opportunity to present his and Ms Frost’s case. It is clear from her reasons for decision that the learned Magistrate took pains to familiarise herself with the facts of the matter[16] and the relevant provisions of the RTRA Act[17]. The learned Magistrate would not have referred, for example, to ‘Deputy President Hall’s view that undue hardship may be described as hardship that is excessive in the circumstances’[18] had she not properly considered the relevant case law.
[16]Transcript of Proceedings, Hayward & Anor v LJ Hooker (QCAT, MCDT008/12, Magistrate O’Shea, 14 January 2013) 12-13.
[17]Ibid 12.
[18]Ibid 15.
It was also argued that the learned Magistrate failed to deal with the matter fairly and according to the substantial merits of the case.
Section 3(b) of the QCAT Act provides that the Tribunal must deal with matters in a way that is ‘accessible, fair, just, economical, informal and quick’.’ It must ensure proceedings are ‘conducted in an informal way that minimises costs to the parties, and is as quick as is consistent with achieving justice’.[19] It is not bound by the rules of evidence or the practices or procedures of courts,[20] and must act with as little formality and technicality and with as much speed as it can;[21] and, it can do ‘whatever is necessary for the speedy and fair conduct of the proceeding’.[22]
[19]QCAT Act s 4(c).
[20]Ibid s 28(3)(b).
[21]Ibid s 28(3)(d).
[22]Ibid s 62(1).
This emphasis on expedition and informality does not, however, allow the Tribunal to pursue speedy resolution at all costs. In all proceedings it must ‘act fairly and according to the substantial merits of the case’[23] and ‘observe the rules of natural justice’[24].
[23]Ibid s 28(2).
[24]Ibid s 28(3)(a).
The transcript shows that this was done. While the learned Magistrate did not make explicit reference to Leddicoat v Walker[25] which provides that ‘each claim for relief on the ground of excessive hardship under the RTRA will require consideration of the particular circumstances in each case’, there was no departure from that principle in this case.
[25][2010] QCATA 18.
Similarly, while the reasons for decision do not point to each and every argument raised by Mr Hayward and Ms Frost, it can not (as they assert) ‘reasonably be drawn from this that’ the learned Magistrate considered those matters ‘of no consequence or merit’, ‘not worthy of consideration’, or ‘inconsequential’. This was a simple case with one issue – whether or not the tenants would suffer excessive hardship if the Tribunal did not terminate the tenancy agreement.
Mr Hayward and Ms Frost’s final contention of breach of natural justice is that the learned Magistrate showed apprehended bias towards LJ Hooker – and, by inference, against them. An allegation of bias is a serious matter. Burchett J observed in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs[26]:
… a finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic, or approach. It would be a sad reflection on administrative tribunals, and certainly on courts which exist in the name of justice, if it were to be seen as other than exceptional.[27]
[26](1997) 151 ALR 505.
[27]Ibid 555.
Mr Hayward and Ms Frost argue that the Magistrate referred to the lessor as the ‘poor landlord’ who was ‘innocent in this matter’ and adopted a line of reasoning which gave little consideration to ‘the activity that could and should have been taken by the landlord and [LJ Hooker] to mitigate loss.’[28] In these circumstances, they submit, the Magistrate showed bias in favour of LJ Hooker.
[28]Douglas Hayward and Rosalie Frost, Submissions in Hayward & Anor v LJ Hooker, APL104-13, 26 February 2013, 17
These submissions are not persuasive and, with regard the latter, quite misconceived.
While the learned Magistrate’s reference to the lessor as the ‘innocent landlord in this matter’[29] was, admittedly, a poor choice of words, it was made in the context of a discussion about how and why a termination order would be unfair to the lessor, in circumstances where Mr Hayward had failed to establish excessive hardship. Similarly, the reference does not lend itself to the inference that Mr Hayward and Ms Frost were, when compared with the lessor, ‘guilty’ in the mind of the learned Magistrate.
[29]Transcript of Proceedings, Hayward & Anor v LJ Hooker (QCAT, MCDT008/12, Magistrate O’Shea, 14 January 2013) 15.
Whether or not the lessor, or LJ Hooker on its behalf, failed to mitigate its loss is not a matter which is relevant to an application of this kind.[30] The onus was always upon Mr Hayward and Ms Frost to present their case and produce evidence that they were suffering excessive hardship at the time of the application. The evidence which they produced at the hearing was not persuasive and the learned Magistrate’s decision was, with respect, unsurprising.
[30]Leddicoat v Walker [2010] QCATA 18 at [21].
In the absence of more compelling submissions, this allegation of bias appears to have been made merely because a decision was made which did not find favour with Mr Hayward, or Ms Frost. They were given an adequate opportunity to present their case, such as it was, and it cannot be demonstrated that they were denied natural justice.
Excessive hardship
The term ‘excessive hardship’ is not defined in the RTRA Act and has no fixed legal meaning independent of the statutory context in which it is found. In the absence of a clear definition, the basic rule of statutory interpretation is that legislative provisions are to be construed according to their natural and ordinary meaning;[31] and, in a way that will best achieve the purpose of the relevant Act.[32]
[31]Marshall v Director General, Department of Transport (2001) 205 CLR 603 at 623 per Gaudron J.
[32]Acts Interpretation Act 1954 s 14A.
The natural and ordinary meaning of the term, and the context in which it is found in the RTRA Act, suggests that whether someone is suffering excessive hardship is a question of fact which must be determined on the circumstances of each case. The language of s 343 of the RTRA Act makes it clear that a finding of excessive hardship will not, by itself, always warrant the exercise of the Tribunal’s discretion to terminate the tenancy agreement. Once excessive hardship has been established the Tribunal may consider other information as to whether it would be fair, in the circumstances, to terminate the tenancy agreement. There is a presumption that terms of tenancy agreements must be adhered to by the parties.
The learned Magistrate accepted Mr Hayward and Ms Frost had suffered some degree of hardship during their relocation to Townsville.[33] In her reasons, the learned Magistrate took into account Mr Hayward’s redundancy; their income and expenses; the costs incurred for temporary accommodation in Townsville; and, that they signed another tenancy agreement in Townsville under which they had to pay an increased weekly rent. The learned Magistrate also considered the entitlement to reimbursement for expenses and other matters associated with the relocation which Mr Hayward could, and appears did, claim under Directive No. 11/11.
[33]APL104-13, 26 February 2013, 17
[33]Transcript of Proceedings, Hayward & Anor v LJ Hooker (QCAT, MCDT008/12, Magistrate O’Shea, 14 January 2013) 15.
The learned Magistrate was, it is clear, simply unpersuaded on the evidence presented by the applicants that the ground had been made out.
Mr Hayward and Ms Frost claim the learned Magistrate made an error of fact by failing to have regard to s 362 of the RTRA Act, which provides that a lessor must take all reasonable steps to mitigate a loss or expense because of a tenant’s actions.
Findings of fact by a tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[34]
[34]Fox v Percy (2003) 214 CLR 118 at 125-126.
Mr Hayward and Ms Frost cite this Appeal Tribunal’s decision in Leddicoat v Walker for the proposition that the learned Magistrate failed to properly consider whether LJ Hooker took reasonable steps to mitigate its loss. In their submission, that decision ‘provides further clarity around the intent of s 362 of the RTRA Act with respect to mitigating loss.’ In particular, they seek to rely upon paragraph [5] of that decision which sets out irrelevant findings made by the Member whose decision was the subject of the appeal.[35]
[35]Douglas Hayward, ‘Affidavit’ Submissions in Hayward & Anor v LJ Hooker, MCDT008/12, 12 December 2012, 11.
This submission is also misconceived.
Leddicoat v Walker is authority for the proposition that the onus of proving excessive hardship lies solely upon the applicant seeking to terminate the tenancy agreement.[36] The case clarifies the point that the conduct of the lessor, or agent on his or her behalf, to mitigate loss caused by the tenant has no bearing upon whether or not a tenant would suffer excessive hardship in the circumstances.[37]
[36]Leddicoat v Walker [2010] QCATA 18 at [21].
[37]Ibid.
While the learned Magistrate did consider the steps taken by LJ Hooker to find a new tenant, it appears that these considerations were immaterial and did not affect the ultimate decision. It is not necessary to set aside the decision on this basis.[38]
[38]Re Walterscheid Australia Pty Ltd v Collector of Customs (1988) FCA 20 at [21] per Davies J.
That said, it does appear the learned Magistrate misdirected herself as to the scope of Mr Hayward’s entitlements under the Directive. Relevantly, it provides that:
An employee is entitled to relief for the cost of temporary accommodation, and for meals while in such accommodation, in the following circumstances:
·While waiting to begin the journey from one centre to the other;
·While waiting to secure permanent accommodation at the new centre.
The entitlement is limited to a period of 2 months for an employee without dependants and to 4 months for an employee accompanied by family.
The learned Magistrate fell into error when she found that Mr Hayward and Ms Frost might have reduced the hardship suffered during the relocation by staying in subsidised temporary accommodation until 20 December 2012. This finding is inconsistent with the provisions or purpose of the directive. Mr Hayward and Ms Frost’s submission that ‘there is an expectation that persons covered by the Directive will use their best endeavours to secure permanent accommodation as soon as possible’ is correct. The learned Magistrate’s error appears to have been an element in her finding that excessive hardship had not been made out, and reliance upon that error can reasonably be seen to have affected the decision in a material way.

Leave to appeal must, in the face of that error, be granted. It is then necessary to consider what should be done in the appeal.
Section 147(3) of the QCAT Act provides:
In deciding the appeal [on a question of mixed law and fact], the appeal tribunal may:
(a)confirm or amend the decision; or
(b)set aside the decision and substitute its own decision.
For the reasons that follow, I consider it appropriate in this matter to confirm the learned Magistrate’s decision, but for different reasons. This course is appropriate because all the necessary material is already before the Appeal Tribunal.
I am not persuaded Mr Hayward and Ms Frost were suffering excessive hardship when the application to set aside the tenancy agreement was filed in the Tribunal.
At that time, the evidence shows, both Mr Hayward and Ms Frost were employed and the costs associated with their relocation had, to some extent, been subsidised.
Moreover, the evidence belies the suggestion that they were suffering hardship, let alone hardship that was ‘excessive’. Their own ‘Statement of Income and Expenditure Douglas Hayward & Rosalie Frost’ shows that, each fortnight, $200.00 was being spent on ‘entertainment’, $150.00 on ‘gym memberships’, $50.00 on ‘satellite television’ and $240.00 was being saved after other expenses.
Their submission that the ‘incurring of debt must be seen as giving rise to excessive hardship’[39] is incorrect. In any event, the income and expenditure statement shows that Mr Hayward and Ms Frost were not incurring a debt: their net income per fortnight equalled expenditure per fortnight.
[39]Douglas Hayward, ‘Affidavit’ Submissions in Hayward & Anor v LJ Hooker, MCDT008/12, 12 December 2012, 9.
Their application to terminate the tenancy agreement as of 26 October 2012, effectively seeks to mitigate all financial loss incurred by their entering a second tenancy agreement in Townsville. In support of their application, they made baseless allegations against LJ Hooker, including that it sought to ‘deliberately frustrate the acquisition of new tenants.’[40] At the hearing, they persisted with those allegations despite the absence of any reliable supporting evidence. Their conduct in these proceedings has been self-serving, and disingenuous.
[40]Ibid 12.
Excessive hardship could never have been found on the basis of the evidence they presented to the learned Magistrate whose decision, albeit involving an error of fact, was nevertheless the correct one – and, indeed, the only conclusion that could reasonably have been reached.
For these reasons, I confirm the learned Magistrate’s decision to dismiss the application to terminate the tenancy agreement filed by Mr Hayward and Ms Frost. The appeal is dismissed.