Hunter v Fowler

[2021] QCATA 83

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hunter & Anor v Fowler  [2021] QCATA 83

PARTIES:

KIMBERLEY HUNTER AND MCGRATH ESTATE AGENTS WILSTON

(applicants)

v

NARAH FOWLER

(respondent)

APPLICATION NO:

APL226-20

MATTER TYPE:

Residential tenancy matters

DELIVERED ON: 

30 June 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

The application for leave to appeal is dismissed

.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – tenancy dispute – where co-tenancy – where one tenant applies for termination of tenancy – where extreme hardship alleged – where hardship caused by disputes between co-tenants - where discussion of section 310 of the Queensland Civil and Administrative Tribunal Act 2009 – where appellants effectively seek re-trial – whether re-trial compatible with application for leave to appeal – where proper conduct of leave application considered – where no arguable appellable error shown – where application for leave dismissed

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 32
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 310
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

CCH Enterprises Pty Ltd (t/a Belle Property Management v Nathan Roberts & Anor [2020] QCATA 67
Coulton v Holcombe (1986) 162 CLR 1
Elshohna v Property Pursuit [2019] QCATA 57
F.G. O’Brien Ltd v Elliott[1965] NSWLR 1473
Fox v Percy (2003) 214 CLR 118
Hayward & Anor v L J Hooker Longreach [2013] QCATA 221
House v The King (1936) 55 CLR 499
Marshall v Director General, Department of Transport  (2001) 205 CLR 603
Martin & Anor v Chadia Chalmers Realty Pty Ltd [2020] QCATA 164
Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Yusuf  (2001) 206 CLR 323
Mirage Resorts Holdings Pty Ltd v Brellen Pty Ltd [2003] QCA 579

Robinson v Corr [2011] QCATA 302

Rukat v Rukat [1975] Fam Div 63
W (an infant), In re [1971] AC 682

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. This matter began as an application by a co-tenant of residential premises for early release from her tenancy obligations on the ground of `excessive hardship’.[1]

   [1]Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 310 (`the RTRAA’).

2. On 29 October 2019 the appellant Kimberley Hunter (`Hunter’) and the respondent Narah Fowler (`Fowler’) jointly leased residential premises (`the premises’) at Alderley, Brisbane, managed by McGrath Estate Agents Wilston (`McGrath’).

3. The term of the lease was from 29 October 2019 to 26 October 2020.

   Co-tenants in dispute

4. On or about 27 April 2020 Fowler left the premises, claiming that she was forced to do so by personal conflicts with Hunter and financial difficulties. In the event, Fowler rested her case on incompatibility, and the application was decided on that basis.[2]

   [2]Transcript of hearing 21 July 2020 (`T’) page 11 lines 11-12.

5. Admirably Fowler, after leaving the premises, continued to pay her share of rent.[3] Thus any suggestion that she had no serious cause to leave the premises challenges probability.

   [3]Email Fowler to agent 17 April 2020; T page 6 lines 1-4 (Hunter).

6. According to Fowler, tension between Hunter and herself became acute about 27 December 2019, when Hunter objected to Fowler’s use of a slow cooker given to her by her parents, and Hunter abused Fowler and her parents in an outburst liberally interspersed with obscenities.[4] Fowler says that this confrontation was followed between 27 December and 2 January 2020 by a contretemps over a vacuum cleaner, during which Hunter told her co-tenant inter alia: `You are so (expletive) stupid. I am sick to death of having to deal with your stupidity every day ... you can’t keep acting in this (expletive) psychotic way.’ According to Fowler there was further verbal abuse on 3 February 2020 when she failed to take Hunter’s dog for a walk. In late April 2020 Fowler told Hunter: `I’m only going because of your constant screams at me on Easter Sunday’.[5] Fowler moved out, she said, when the `stressful situation’ became extreme’.[6]

   [4]Manuscript diary note by Fowler 27 December 2019.

   [5]Email Fowler to Hunter 23 April 2020.

   [6]Email Fowler to agent 27 April 2020.

7. Hunter denies some of these encounters, but not her use of colourful language. Hunter admits that she had `issues’ with Fowler.[7] In a parting message Hunter wrote:

   You lack the ability to communicate in any form. In a share house [lack of] communication turns to tension, stress, frustration, unknown concerns and feelings, un-comfortableness and all in all – annoyance. ... In any event, if living here was so terrible that your solution was to vacate, that is your decision and you are entitled to do so.[8]

   [7]T page 7 lines 21-30 (Hunter to Adjudicator).

   [8]Email Hunter to Fowler 23 April 2020.

8. Fowler commenced these proceedings two days later.

   Fowler’s co-tenancy dissolved

9. The Tribunal heard the application on 21 July 2020, and, pursuant to section 310 of the RTRAA, ordered that Fowler be removed as a party to the tenancy agreement as and from 1 September 2020.[9] In fairness to the appellants[10] the order was suspended for six weeks.

   [9]T page 11 lines 20-24.

   [10]T 10 lines 1-9.

10. Whatever be the precise `issues’ and exchanges between the parties, - and the minutiae need not be dissected here - it is manifest that their relationship had broken down, and that Fowler, at least, felt that deeply. That is the point. As the learned adjudicator carefully pointed out, a section 310 application is not about the attribution or apportionment of fault, but about the state of the subject relationship:

    I am satisfied, even from what I have heard from the parties,[11] that there was an incompatibility issue ... the extent of that may be in dispute ... and I make no findings as to who’s at fault, but ... there [are] grounds to make an order.”[12]

    [11]This may be an implicit reference to the copious written material in evidence.

    [12]T page 9 lines 37-41. See paragraph [8], above.

11. Hunter now asks the appeal Tribunal to set that decision aside.

    Section 310 of the RTRAA

12. Section 310, enabling the Tribunal to terminate a residential lease to relieve a tenant’s `excessive hardship’ confers a broad discretionary power.[13] Appeals against discretionary decisions face special difficulties.[14]

    [13]CCH Enterprises Pty Ltd (t/a Belle Property Management v Nathan Roberts & Anor [2019] QCATA 67 at [6].

    [14]House v The King (1936) 55 CLR 499 at 504-505.

13. The RTRAA does not define `hardship’. Therefore we are referred to a basic rule of statutory interpretation, namely that, absent special provision, legislation is to be construed according to its natural and ordinary meaning.[15] Assistance may be gained from cases decided in this Tribunal, or under comparable legislation in other jurisdictions. But unsurprisingly most expositions end with the reflection that no abstract definition is possible, and that ultimately every decision depends on the facts and circumstances of the case.[16] The decision is one of fact, judgment and degree.[17]

    The word `hardship’ is not a word of [legal] art. It follows that it must be construed ... in a common-sense way ... such as would meet with the approval of ordinary sensible people. In my judgment the ordinary sensible man would take the view that there are two aspects of `hardship’ – that which the sufferer ... thinks he is suffering, and that which a reasonable bystander with knowledge of all the facts would think that he is suffering.[18]

    [15]Marshall v Director General, Department of Transport (2001) 205 CLR 603 at 623.

    [16]E g  F.G. O’Brien Ltd v Elliott[1965] NSWLR 1473 at 1475 per Asprey J.

    [17]Elshohna v Property Pursuit [2019] QCATA 57, cited with approval in CCH Enterprises Pty Ltd t/as Belle Property Management v Roberts [2020] QCATA 67 and Martin & Anor v Chadia Chalmers Realty Pty Ltd [2020] QCATA 164

    [18]Rukat v Rukat [1975] Fam Div 63 at 73 per Lawton LJ.

14. Usually, if not invariably, Queensland cases favouring tenants involve persons whose position is largely passive – where the hardship is involuntary, rather than a consequence of a chosen course of action.

    The present issue

15. As Wilson J, a former President of the Tribunal, said in Hayward & Anor v L J Hooker Longreach[19]:

    This [is] a simple case with one issue – whether or not the tenants would suffer excessive hardship if the Tribunal did not terminate the tenancy agreement.

    There is no issue as to brevity of reasons. There is no rule that voluminous evidence or submissions must be followed by a long and complex judgment,[20] particularly where much of the material is peripheral,[21] or – for reasons stated below - not relevant to an application for leave to appeal. Reasons need not be elaborate where it is simply a discretionary assessment of compatibility of parties in shared accommodation.[22]

    [19][2013] QCATA 221 at [22].

    [20]Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [235].

    [21]Mirage Resorts Holdings Pty Ltd v Brellen Pty Ltd [2003] QCA 579 at [55]-[56] per Chesterman J.

    [22]Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 433.

16. The would-be appellants make it clear that, in their view, Fowler’s application should be dismissed. But that is not nearly enough. It is necessary to specify an arguable ground of appellable error. They have not done so.

Not a retrial

1. Unfortunately it is a common error of parties seeking leave to assume that such an application is an opportunity to re-run the trial, or to `second guess’ the primary Tribunal, as if the first hearing were merely a `preliminary skirmish’.[23] On the contrary, findings of fact, assessments of credit and reasonable exercises of discretion are the prerogative of the primary adjudicator.

   If there is evidence ... no error of law occurs simply because the judge prefers one version of evidence to another or one set of inferences to another. This is his function. ... Even if the evidence is strongly one way the Appeal Court may not intervene simply because it reaches a different conclusion [and] ... regards the conclusion of the trial judge against the weight of evidence.[24]

[18]This is classically a case in which the applicants are attempting to conduct a retrial on evidence already advanced, or additional evidence which could reasonably have been presented at the trial. It is just the sort of case that the legislature intends to be resolved speedily, economically and with finality.[25] The very point of the `leave to appeal’ hurdle is to curb attempts to misuse appeals as retrials or devices of delay. It is not appellable error to prefer one version of the facts to another, or to give more weight to the evidence of `A’ than to that of `B’. Findings of fact will not normally be disturbed if they have rational, albeit debateable support in the evidence, even where another reasonable view is available.[26] Where reasonable minds may differ, a decision is not erroneous merely because one solution has been preferred to another possible view.[27] It is not nearly enough for a party to express disappointment at the original decision, or a subjective feeling that justice has not been done.[28]

[23]Coulton v Holcombe (1986) 162 CLR 1 at 7 (per Gibbs CJ, Wilson, Brennan and Dawson JJ).

[24]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby P.

[25]QCAT Act s 3(b).

[26]Fox v Percy (2003) 214 CLR 118 at 125-126.

[27]In re W (an infant) [1971] AC 682 at 700; Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 at [131].

[28]       Robinson v Corr [2011] QCATA 302 at [7].

1. I can discern no appellable error in the Tribunal’s decision; indeed, none has been specified. There was ample evidence to support the findings made and the discretion exercised. Leave to appeal must therefore be refused.

ORDER

The application for leave to appeal is dismissed.