Kay v Nye
[2014] QCATA 42
•17 March 2014
| CITATION: | Kay v Nye [2014] QCATA 042 |
| PARTIES: | Scott Patrick Kay (Appellant) |
| v | |
| Anthony Nye Reeta Nye (Respondents) |
| APPLICATION NUMBER: | APL054 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 17 March 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL –RESIDENTIAL TENANCY DISPUTE – where application to terminate for excessive hardship – where tenancy terminated for excessive hardship – where tenant alleged hardship continued – where tenant alleged all matters not taken into account - whether grounds for leave to appeal Pickering v McArthur [2005] QCA 294 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr Kay and Ms Muir rented a home from Mr and Mrs Nye. At the same time, they applied for a housing commission home. When the housing commission home became available, Mr Kay and Ms Muir gave notice of their intention to terminate their agreement with Mr and Mrs Nye. They then filed an application in the tribunal asking that the tenancy agreement be terminated due to hardship.
An Adjudicator terminated the tenancy agreement as from the date of the hearing, 17 January 2014.
Mr Kay wants to appeal that decision. He says that the learned Adjudicator did not consider “everything” on his original application. He says that the learned Adjudicator’s order does not benefit him but does benefit Mr and Mrs Nye. He says that he has not benefited at all from the application, but has suffered more hardship.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:
There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
[1][2005] QCA 294 at [3].
The learned Adjudicator found that there was excessive hardship[2]. He properly considered the material presented by Mr Kay and Ms Muir and made the order they wanted.
[2]Transcript page 1-5, lines 44-47.
It seems, though, that Mr Kay wanted an earlier date of termination. The tribunal can terminate a tenancy if the applicant establishes excessive hardship at the time of the application[3]. Therefore, the earliest date for the termination of the tenancy was 24 December 2013, the day the tribunal received Mr Kay and Ms Muir’s application.
[3] Leddicoat v Walker[2010] QCATA 18 at [21].
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. The learned Adjudicator referred to those considerations, although not in a detailed way, in his reasons for decision[4].
[4]Transcript page 1-5, lines 2-9.
The learned Adjudicator did not have the power to adjust rent liability between the parties. All he could do was to terminate the tenancy. Both lessor and tenant can bring an application for compensation, once they have attended conciliation with the Residential Tenancies Authority. Therefore, the learned Adjudicator could not make an order that limited Mr Kay’s liability for rent in the application the subject of the appeal.
If Mr Kay and Ms Muir are suffering hardship, it is because they agreed to take a housing commission home while they were still bound to pay rent to Mr and Mrs Nye. It is not because of the learned Adjudicator’s order.
There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.
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