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Hunter v Fowler

Hunter v Fowler

Case [2021] QCATA 83 30 June 2021

Civil Litigation & Procedure

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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

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’).
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’).
The term of the lease was from 29 October 2019 to 26 October 2020.
Co-tenants in dispute
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…

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 Hunter v Fowler

Details

AGLC: Hunter v Fowler [2021] QCATA 83
Case: [2021] QCATA 83
Decision Date: 30 June 2021

CaseChat Overview and Summary

The appeal before the court was brought by the appellants, Hunter and Fowler, who were co-tenants of a property in Queensland. The dispute between the parties centred around the termination of the tenancy agreement and the allegations of extreme hardship caused by disputes among the co-tenants. The primary issue was whether the respondents, who had applied for the termination of the tenancy, had demonstrated extreme hardship. The case was heard by the Queensland Civil and Administrative Tribunal (QCAT), which had found in favour of the respondents and granted their application for the termination of the tenancy. The appellants sought leave to appeal the QCAT’s decision, arguing that the Tribunal had erred in its findings of fact and law.

The court had to determine whether the appellants' application for leave to appeal was valid, considering the circumstances where the appellants effectively sought a re-trial of the case. The court also had to consider whether the appellants had demonstrated an arguable appellable error and whether the conduct of the leave application was proper. The court examined the nature of the relief sought by the appellants and whether it was compatible with the leave application. The court found that the appellants had not shown any arguable appellable error and that their application for leave to appeal was not conducted properly.

The court held that the appellants' application for leave to appeal was dismissed. The court found that the appellants' application was effectively seeking a re-trial of the case, which was not compatible with the leave application. The court also found that the appellants had not demonstrated any arguable appellable error and that the conduct of the leave application was not proper. The court held that the application for leave to appeal was dismissed with no order as to costs.

Orders

Orders of the court

The application for leave to appeal is dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Hunter v Fowler [2021] QCATA 83

Most Recent Citation

Fleger & Anor v Joubert [2024] QCATA 13

Cases citing this decision · 1 of 1 shown

Fleger & Anor v Joubert
[2024] QCATA 13 Para 12

…In Hunter v Fowler [2021] QCATA 83, 73 Dr Forbes held ([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. Assistance may be gained f…

View all 1 citing cases →

Cases cited in this decision · 17 of 17 shown

Martin v Chadia Chalmers Realty Pty Ltd
[2020] QCATA 164 Para 13

…oval 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.…
CCH Enterprises Pty Ltd t/as Belle Property Management v Roberts
[2020] QCATA 67 Para 13

…. [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.…
Kelson v Queensland Police Service
[2019] QCATA 67 Para 12

…gainst 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.…
Elshohna v Property Pursuit
[2019] QCATA 57 Para 13

…port (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 [20…
Hayward & Anor v LJ Hooker Longreach
[2013] QCATA 221 Para 15

…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…
Robinson v Corr
[2011] QCATA 302

…icultural 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 Q…
Minister for Immigration and Citizenship v SZMDS
[2010] HCA 16

…R 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 3…
Mirage Resorts Holdings Pty Ltd v Brellen Pty Ltd
[2003] QCA 579 Para 15

…0] 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.…
Fox v Percy
[2003] HCA 22

…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…
Marshall v Director General, Department of Transport
[2001] HCA 37 Para 13

…ble 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 C…
Minister for Immigration and Multicultural Affairs v Yusuf
[2001] HCA 30 Para 15

…mpatibility 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 o…
Coulton v Holcombe
[1986] HCA 33

…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…
House v R
[1936] HCA 40 Para 12

…fficulties.[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.…
House v The King
63 WN 176 Para 12

…s 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.…
[1971] AC 682
[1971] AC 682

…ty 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)…
Azzopardi v Tasman UEB Industries Ltd
2002 SC13437

…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 Hol…
Beale v Government Insurance Office of NSW
(1997) 48 NSWLR 430 Para 15

…] 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.…

Legislation cited in this decision · 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld)
3 2 mentions
Residential Tenancies and Rooming Accommodation Act 2008 (Qld)
310 1 mention (from Para 1)

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)