Igrowth Investments Pty Ltd v Brown
[2018] QCATA 41
•27 March 2018
CITATION: | Igrowth Investments Pty Ltd v Brown & Anor [2018] QCATA 41 | ||
| PARTIES: | Igrowth Investments Pty Ltd (Appellants) | ||
| v | |||
| Shane Brown (Respondents) | |||
APPLICATION NUMBER: | APL430-16 | ||
MATTER TYPE: | Appeals | ||
HEARING DATE: | On the papers | ||
HEARD AT: | Brisbane | ||
DECISION OF: | Member Hughes | ||
DELIVERED ON: | 27 March 2018 | ||
DELIVERED AT: | Brisbane | ||
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The Order below is amended to read: “A Termination Order is made in respect of premises at 2336 Meliah Close, Sanctuary Cove 4223 on the grounds of excessive hardship as and from 14 November 2016.” 4. The Application for miscellaneous matters filed on 9 October 2017 is dismissed. | ||
| CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – EVIDENCE NOT AVAILABLE AT HEARING – WHEN NOT ADMISSIBLE – where evidence readily available at original hearing – where material would not have important impact on result APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’s FINDINGS OF FACT – PROOF AND EVIDENCE – OTHER MATTERS – where evidence capable of supporting Tribunal’s conclusions | ||
| INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – OTHER CASES – where application to terminate lease for excessive hardship – where broad discretionary power to terminate lease – where Adjudicator’s conclusion open and reasonable LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – RECOVERY OF POSSESSION – GENERALLY – where termination of lease for excessive hardship can only take effect from date of hearing – where Adjudicator terminated lease from date before hearing – where error of law to this limited extent only – where appeal allowed to this limited extent – where Adjudicator’s order amended accordingly Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 28, s143 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Piric & Anor v Claudia Tillier Holdings Pty Ltd[2012] QCATA 152 | |||
APPEARANCES:
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
What is this appeal about?
Lauren and Shane Brown agreed to rent a property from Igrowth Investments Pty Ltd for a period of some 12 months. However, they successfully applied to an Adjudicator to terminate the lease on the grounds of excessive hardship only two months into the term. Igrowth wants to appeal the Adjudicator’s decision.
Preliminary matter
Igrowth filed an Application for miscellaneous matters on 9 October 2017 seeking a direction for Mr Brown “to refrain from the ongoing accusations and defamatory comments made against Nabil Issa in this matter as is evident from his email of 15th September 2017”.
This decision of the Appeal Tribunal will dispose of this matter. It is therefore unnecessary to make the direction sought and the application is dismissed.
Was the evidence capable of supporting the Adjudicator’s finding?
Igrowth’s ground of appeal was essentially that the evidence was not capable of supporting the learned Adjudicator’s finding.
Because this is an appeal from a minor civil dispute, leave is required.[1] Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.[2] A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.[3]
[1]QCAT Act, s 143(3).
[2]Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J).
[3]Ibid.
An application for leave to appeal is not, and should not be, an attempt to reargue a party’s case at the initial hearing.[4] The appeal process is not an opportunity for a party to again present their case.[5] It is the means to correct error by the Tribunal that decided the proceeding.[6]
[4]Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39.
[5]Ibid, [9].
[6]Ibid.
In determining whether to grant leave, the Tribunal will consider established principles including whether there is a reasonably arguable case of error in the primary decision,[7] whether there is a reasonable prospect that the appellant will obtain substantive relief,[8] whether leave is needed to correct a substantial injustice caused by some error,[9] and whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[10]
[7]QUYPD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[8]Cachia v Grech [2009] NSWCA 232, 2.
[9]QUYPD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[10]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.
Igrowth directed its appeal towards the learned Adjudicator’s findings of fact about the tenants’ financial position and submitted that the learned Adjudicator could not have been satisfied “beyond reasonable doubt” that their hardship was genuine.
Of course, in a minor civil dispute, the relevant standard of proof is the lesser standard of the balance of probabilities.[11] This means that the learned Adjudicator only had to be satisfied on the balance of probabilities, rather than the criminal standard of “beyond reasonable doubt”.
[11]Briginshaw v Briginshaw (1938) 60 CLR 336; Repatriation Commission v Smith (1987) (1987) 15 FCR 327; 74 ALR 537, 546; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ACCC (2007) 162 FCR 466.
Findings of fact will usually not be disturbed on appeal if the facts inferred by the Tribunal, upon which the findings are based, are capable of supporting the conclusions and there is evidence capable of supporting the underlying conclusions.[12] No error of law arises in making a wrong finding of fact unless no evidence supports that finding.[13]
[12]Fox v Percy (2003) 214 CLR 118, 125-6.
[13]Waterford v The Commonwealth (1987) 163 CLR 54, 77; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 341.
Igrowth spent considerable time on submissions attacking the weight to be attached to various items of the tenants’ evidence including the tenants’ financial statements not being audited, the learned Adjudicator’s inferences drawn from the evidence and in particular the banks’ approval of financial relief and claimed less than full disclosure including a property sale before the tenancy and driving of expensive leased vehicles.
An appellate Tribunal may only interfere if the conclusion is “contrary to compelling inferences” in the case,[14] but will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[15] Importantly – and consistent with its mandate of quick and efficient justice[16] – the Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate.[17]
[14]Chambers v Jobling (1986) 7 NSWLR 1, 10.
[15]Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-6.
[16]QCAT Act, s 3, s 4.
[17]Ibid, s 28(3)(b).
The tenants’ financial statements – audited or not – are evidence of the tenants’ financial affairs and the learned Adjudicator was entitled to rely on those statements. Similarly, the banks’ approvals of financial relief are evidence that at the very least suggest financial vulnerability at the relevant time. Igrowth’s claim that “just about anyone can apply and be successful in getting similar relief” is speculative and unsupported by any evidence.
Igrowth’s claims of less than full disclosure of a property sale and driving expensive motor vehicles is new evidence. The Appeal Tribunal will only accept additional evidence if it was not reasonably available at the time the proceeding was heard and determined. To rely on this evidence, Igrowth must satisfy three tests:[18] With reasonable diligence, could the evidence have been obtained for use at trial? If allowed, would the evidence probably have an important impact on the case? Is the evidence credible?
[18]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408.
All this evidence was readily available by the time of the hearing. The property was sold in January 2016, well before the hearing in November 2016. Similarly, Igrowth claimed the tenants were driving expensive leased vehicles “at the time of the tribunal hearing”. Moreover, none of this evidence would affect the result of the case. The sale of the property was some eight months before the alleged hardship. Much can happen in that time. Driving expensive vehicles proves little without details of any leasing arrangement.
It is implicit that the Tribunal preferred the tenants’ evidence about their financial circumstances and weighed it accordingly. Having heard the evidence of both Mr and Mrs Brown and representatives for Igrowth and examined the financial documentation, the learned Adjudicator was in the best position to assess credibility. Attempting to explain away the learned Adjudicator’s findings with a possible alternative does not demonstrate error by the learned Adjudicator. Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because the learned Adjudicator prefers one conclusion to another possible conclusion.[19]
[19]Slater v Wilkes [2012] QCATA 12, [6], citing Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611.
The learned Adjudicator referred to the evidence to support her ultimate findings[20] and which she was entitled to weigh accordingly.[21] She considered evidence of the tenants’ assets, liabilities, income and expenses. She also considered the tenants’ need to defer of many of their financial obligations.
[20]Transcript, page 1-11, lines 35 to 44; page 1-12, lines 8 to 9.
[21]Selvanayagam v University of the West Indies [1983] 1 All ER 824, 826.
Section 343 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) confers a broad discretionary power to lawfully terminate a lease if the ground of excessive hardship is proven.[22] The learned Adjudicator had sufficient evidence to support her finding of excessive hardship. Indeed, one of the tenants is now bankrupt.[23] Once accepted, nothing in her decision suggests she incorrectly exercised her discretion to terminate the tenancy. Her conclusion was open and reasonable.
[22]Leddicoat v Walker [2010] QCATA 18, [15].
[23]Letter Worrells to QCAT dated 5 April 2017.
I find nothing to indicate that the learned Adjudicator acted on a wrong principle or made mistakes of fact or was influenced by irrelevant matters in her decision to terminate the tenancy. Nothing in the material or the transcript persuades the Appeal Tribunal that the findings were not open to the learned Adjudicator.
This ground of appeal is dismissed.
Did the Adjudicator correctly apply the relevant provision?
Although not specifically submitted as a ground of appeal, the Appeal Tribunal notes that termination of the lease for excessive hardship could only take effect from the date of the hearing[24] – on 14 November 2016. However, the learned Adjudicator terminated the tenancy from 24 October 2016. On this point, the Appeal Tribunal must respectfully disagree with the learned Adjudicator:
There is good reason for the tribunal to make the termination date the date of order. Until the order is made, the tenancy agreement continues and the tenant continues to be liable to pay rent. Even if, as here, the tenant abandons the tenancy, the lessor has no right to mitigate the loss of rent by getting a new tenant because the existing tenant still has a right to occupy the home. Once the tenancy agreement is terminated then the lessor can start to make other arrangements.[25]
[24]Bateson v Coronis Real Estate v [2013] QCATA 328, [8].
[25]Kay v Nye [2014] QCATA 042, [7].
To this limited extent only, the learned Adjudicator erred and leave to appeal must be granted. Because this is an error of law relating only to the correct date of termination, I am satisfied that the most fair and efficient course consistent with the objects of the QCAT Act[26] is to allow the appeal to this limited extent and to amend the learned Adjudicator’s decision so that the tenancy is terminated as and from 14 November 2016.
[26]QCAT Act, s 3.
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