Johnson v Chen
[2012] QCATA 80
•27 April 2012
| CITATION: | Johnson v Chen [2012] QCATA 80 |
| PARTIES: | Robert Johnson (Applicant/Appellant) |
| v | |
| Mr Ming Chen (Respondent) |
| APPLICATION NUMBER: | APL448-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Acting Deputy President |
| DELIVERED ON: | 27 April 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS: | Minor Civil Dispute – where challenge to findings of fact – findings open on the evidence – no error identified Queensland Civil and Administrative Tribunal Act2009, s 142(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
The applicants entered into a tenancy agreement with Mr Chen to rent a property at Labrador on or about 23 October 2010. The tenancy agreement was for a period of 12 months commencing on 29 October 2010 and ending on 28 October 2011. Both Mr Johnson and Ms Santy signed the tenancy agreement on 23 October 2010 and 1 November 2010. The rent was $300 per week.
The applicants vacated the premises in February 2011 and paid rent up to 21 January 2011.
On 4 April 2011 the respondent’s agent, Labrador Homes, commenced a proceeding in the minor civil dispute jurisdiction claiming arrears of rent together with an order that the bond of $1,200 to be paid to the lessor. Although there was no specific claim for an amount of arrears of rent, Mr Russell, who appeared for the respondent at the hearing, indicated that he was concerned to file the application to preserve the bond before it was paid out but did attach to the application a rent ledger which shows that there is outstanding rent.
By the time the matter came on for hearing the respondent claimed $4,971.00 for outstanding rent together with the release of bond to offset some of this rent.
Ultimately, after hearing from the applicants and the respondent the learned Adjudicator made an order that the applicants pay to the landlord $4,285.71 and that the bond of $1,200.00 be paid out to the lessor. This left a balance of $3,085.71 to be paid by the applicants within 30 days.
From that decision Mr Johnson only has filed an application for leave to appeal or appeal.[1] The grounds of appeal are general in that they do not specifically identify any particular error on the part of the learned Adjudicator. The grounds state that the learned Adjudicator ignored evidence of extreme circumstances; ignored forms that were lodged including the form 13A; did not take into account damages to Ms Santy’s car; that both Mr Johnson and Ms Santy were placed on the TICA tenancy database and that the order made by the learned Adjudicator be set aside and the bond paid to Mr Johnson and Ms Santy.
[1] Leave is necessary: QCAT Act, s 142(3).
For leave to appeal to be granted, the applicants must show that there is a reasonably arguable case of error in the primary decision.[2] Other grounds for leave is whether there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] 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?[5]
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at 2.
[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]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.
In the usual way directions were made for the parties to file submissions in support of the Appeal. Mr Johnson has filed submissions with a large bundle of documents most of which presumably would have been available to put before the learned Adjudicator at the original hearing. It appears from the minor civil dispute file that these documents were not given to the learned Adjudicator.
In any event, the content of the submissions made to the Appeal Tribunal really reiterate in a more specific way those matters that were argued before the learned Adjudicator. There is also a critique of the learned Adjudicator’s reasons.
To put matters into context, it is important to have regard to the issues that the learned Adjudicator had to consider. Firstly, whether or not there was a fixed term tenancy agreement in place, as opposed to a periodic tenancy. Clearly the evidence establishes that both Mr Johnson and Ms Santy signed a residential tenancy agreement for a period of 12 months. From the evidence put before her, the learned Adjudicator had no alternative to make a finding that there was a 12 month tenancy.
Even though the tenants purported to give a Notice of Intention to Leave in Form 13 to the lessor on 17 February 2011 to be effective at 29 February 2011 that notice, as the learned Adjudicator found as a matter of fact, was not given to the lessor nor did it relieve the tenants of their obligations to continue to pay rent until an alternate tenant was found by the lessor, provided he took all reasonable steps to locate a tenant within a reasonable time. That finding of fact by the learned Adjudicator will not be disturbed by the Appeal Tribunal unless it was not open on the evidence before her, clearly it was, and the reasons she gave for not accepting that it had been served are sufficient to not warrant intervention. In addition, reliance on the broken window which was in existence before the tenancy agreement was resigned in October 2011 was a reasonable basis to conclude that the tenants were happy to accept the premises in its condition at that time when the agreement was renewed.
By choosing to vacate the premises before the expiration of the tenancy agreement the tenants have elected to, in effect, continue to be responsible for the rent until the premises is relet.
The tenant’s situation was compounded by not advising the lessor’s agent of their intention to leave the house. Although it was contended that an attempt was made to deliver the keys to the agent in February 2011, again the learned Adjudicator addressed this and made a finding of fact, open on the evidence, that no effort was made and that the lessor’s agent did not know the premises were vacated until March when the keys were received by him in the post. Even if the applicant’s contention is right that they did attempt to return the keys to the lessor’s agent in February, one queries why they were not posted at that time so that they were received by the lessor’s agent in a timely fashion. There is no explanation for the month’s delay.
In fairness to the tenants the learned Adjudicator was critical of the lessor’s failure to mitigate the loss by seeking to have the property cleaned for occupancy and reasonably, reduced the rental claim for the period from the date the property was vacated to 30 April 2011, one month after the agent received the keys.
From the voluminous material filed by the applicant it is apparent that he is seeking to reargue the case that was argued before the learned Adjudicator and he has provided further documentary evidence in support of that case. The Appeal Tribunal will not accept further evidence in the appeal if that evidence was reasonably available to the parties at the time of the original hearing. Clearly, this evidence was available having regard to the dates on various emails, photographs and other documents. The critique of the evidence given by Mr Johnson is also unhelpful. These submissions go to the very issues that were before the learned Adjudicator which she took into account in coming to the conclusion quite simply, that there was no entitlement to compensation to the tenants because of the condition of the property.
The substance of the appeal relates to factual issues and the conclusions of the learned Adjudicator with respect to those factual issues. Her findings in respect of each of those matters was open on the evidence and she had a choice as to whether to accept the evidence of Mr Johnson and Ms Santy or that of Mr Russell, clearly she preferred the former but reasonably, applied a significant discount to the lessor’s claim for rent to the advantage of the tenants.
As no error of law has been identified, nor has there been any substantial injustice in the result, leave to appeal is refused.
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