Kamila v BCA Management T/A Unilodge on Margaret

[2022] QCATA 70

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Kamila v BCA Management T/A Unilodge on Margaret  [2022] QCATA 070

PARTIES:

BANA BEHARI KAMILA

(applicant\appellant)

v

BCA MANAGEMENT T/A UNILODGE ON MARGARET.

(respondents)

APPLICATION NO/S:

APL054-21

MATTER TYPE:

Appeals

DELIVERED ON:

12 May 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

Leave to appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where tenant unilaterally terminated the tenancy agreement – where the tenant claimed return of the rental bond due to excessive financial hardship due to Covid 19 – where application dismissed on grounds of lack of evidence of financial hardship – whether open for the tribunal to make a finding of a lack of evidence to support the claim – whether any grounds to interfere with the findings of the tribunal – whether grounds for a grant of leave. agent – whether any error of law or fact demonstrated.

Queensland Civil and Administrative Tribunal Act section 142(3)(a)(i)

Terera & Anor v Clifford [2017] QCA 181
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22

Bradlyn Nominees Pty Ltd v Saikowski [2012] QCATA 39.

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. Mr Kamila entered in to a written residential tenancy agreement with BCA management to rent residential premises in Margaret St in Brisbane, described as UniLodge on Margaret. The tenancy was for a fixed term from to conclude on 29 June 2021. He paid a rental bond of $1,278.00 to the Residential Tenancy Authority (“RTA”).

2. Mr Kamila decided to leave the tenancy on or about 14 April 2021 having paid the rent up to that day. After leaving UniLodge he made a claim with the RTA for a return of the rental bond. A dispute ensured with UniLodge because it contended that Mr Kamila was liable for the rent up until at least the termination of the tenancy, it not be able to relet the premises until mid-August 2021. Mr Kamila believed he was entitled to vacate the premises due to hardship and relied on the provisions of the Residential Tenancies and Rooming Accommodation (COVID – 19 Emergency Response) Regulation 2020 (‘the Covid Regulation”). Section 6 of the Regulation sets out the circumstances of what constitutes ‘excessive hardship because of COVID – 19 emergency’. Subsection (2)(a)(iii) refers specifically to hardship when there is financial impact from the closure or restriction of the persons place of employment.

3. As the dispute was not able to be resolved through the RTA, Mr Kamila filed an application in the tribunal’s minor civil disputes jurisdiction claiming the return of the bond. It was contested, with UniLodge claiming the bond to compensate it for unpaid rent up until the end of the tenancy.

4. In an annexure to his application Mr Kamila said:

   The early termination of lease leading to vacate property, on 15 April 2020, was due to:

   ·Termination of contract job for COVID 19 measures from business

   ·Border restrictions and social distancing of government measures for COVID 19

   ·Extreme financial hardship

5. The matter came on for hearing and during the hearing Mr Kamila reiterated the above in that he was employed as a contractor and lost his position. Because he was a contractor he said he was unable to obtain any documentation form his ‘employer’ to confirm this. When specifically asked by the learned adjudicator, he was not able to produce any other evidence of financial hardship, nor any evidence of the type of work he was doing, when his contract was terminated or loss of income. He simply referred to his application filed in the proceeding. After leaving the tenancy he moved interstate. The evidence concerning his employment was minimal.

6. After considering Mr Kamila’s submission the tribunal dismissed his application. The reason for dismissal was the lack of evidence to support the contention that the hardship fell within the provisions of the Covid Regulation. The learned adjudicator was satisfied there was a residential tenancy in place which expired on 29 July 2021. He concluded that Mr Kamila broke the lease and that he did not produce any evidence to support his contention of financial hardship. Although he made reference to the Covid Regulation requiring evidence to support a claim for hardship, I see nothing in s 6 of such a requirement. However, it is entirely reasonable for some evidence to be produced rather than just the tenant asserting the hardship, particularly in a contested application. Here because the evidence was lacking, the tribunal was entitled to take this into account when determining the matter.

7. Subsequently, Kamila filed an application for leave to appeal or appeal. The grounds of appeal reiterate that which supported the minor civil dispute application. It does not identify an error as such, but seeks to re-litigate the same issues that were before the tribunal below. No submissions have been filed in support of the application for leave to appeal.

8. Importantly, an appeal from a decision in the minor civil disputes jurisdiction is not an appeal as of right. Section 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that in respect of a decision in a proceeding for a minor civil dispute an appeal may be made only if the party has obtained the appeal tribunal’s leave, or permission, to appeal. Leave to appeal will usually only be granted when there is a reasonable argument that the decision was attended by error, or an appeal is necessary to correct a substantial injustice caused by the error.[1] An application for leave to appeal is not simply an opportunity to reiterate the arguments made at the hearing below in the hope of obtaining a different outcome.[2] Put another way, it is not a rehearing on the merits of the matter that was before the primary decision maker/s. As already mentioned, the grounds of appeal do not specifically identify error on the part of the learned adjudicator but essentially argues that the case that was argued below ought to have reached a different conclusion.

   [1]Terera & Anor v Clifford [2017] QCA 181.

   [2]Bradlyn Nominees Pty Ltd v Saikowski [2012] QCATA 39.

9. The tribunal considered all the evidence that was placed before it and the conclusion reached was clearly open on that evidence. There is no basis upon which the appeal tribunal can interfere with that decision. As no error has been identified, leave to appeal must be refused.