L J Hooker Coorparoo v Rock
[2010] QCATA 119
•22 December 2010
| CITATION: | L J Hooker Coorparoo v Rock [2010] QCATA 119 |
| PARTIES: | L J Hooker Coorparoo (Applicant/Appellant) |
| v | |
| Stephen Rock (Respondent) |
APPLICATION NUMBER: APL249-10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President Peta Stilgoe, Member |
DELIVERED ON: 22 December 2010
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal refused
| CATCHWORDS : | RESIDENTIAL TENANCIES – LEAVE TO APPEAL – Residential Tenancies and Rooming Accommodation Act 2008, s 239 – where the Tribunal ordered the respondent to pay compensation to the appellant – where the appellant alleges that the Tribunal incorrectly found that s 239 of the Residential Tenancies and Rooming Accommodation Act 2008 did not apply and that it should have been awarded a greater amount – whether learned adjudicator erred in finding that facts did not fall within that provision – whether leave should be granted Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a) Hope v Bathurst City Council (1980) 144 CLR 1, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the
Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act)
REASONS FOR DECISION:
President:
In this matter the Appeal Tribunal was comprised of Ms Stilgoe and me. I have had the advantage of reading her decision in draft. I agree with it, and with her conclusions and the order she proposes.
Member Peta Stilgoe:
Mr Rock was a tenant in a property managed by L J Hooker Coorparoo. He terminated the lease early. L J Hooker brought proceedings in the minor civil dispute jurisdiction of the tribunal claiming $7,425.60. Of that sum, $4500 was claimed for compensation for rent allegedly payable from the date Mr Rock vacated to the date the lease would, ordinarily, have ended.
The relevant consideration for the tribunal turned upon whether the agents had taken reasonable steps to mitigate the loss pursuant to s 362(3) of Residential Tenancies and Rooming Accommodation Act 2008 (RTRA).
LJ Hooker argued that it was reasonable of the lessor not to follow up on a certain enquiry for a short term lease because, under s 239 of the RTRA, the lessor had the right to take into account the risk of damages to the premises, and that the risk was higher for short term tenancies than for long term tenancies.
Section 239 concerns tenants and their rights in relation to a request for a transfer, or sub-letting. The learned Adjudicator found that s 239 did not apply in the particular circumstances arising here, and was of the view that the owner of the property had failed to mitigate the loss occasioned by Mr Rock’s early termination because he failed to follow up on an offer to lease the property for three months. The learned Adjudicator ordered that Mr Rock pay the owner $3000 in compensation, i.e. some $1,500 less than the amount claimed from him.
L J Hooker has sought to appeal this decision. Leave is required because this is an appeal from a minor civil dispute: s 142(3)(a), QCAT Act.
Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and reasonable prospect of the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
LJ Hooker contends that the learned Adjudicator erred in her finding that s 239 of the RTRA did not apply to their application and, in turn, that it should have been awarded the full amount sought.
Whether facts fall within a statutory provision is question of law: Hope v Bathurst City Council.[1] Here the facts demonstrate, as the learned Adjudicator correctly pointed out, that s 239 does not apply because the tenant was seeking to break the lease, not transfer or sub-let.
[1] (1980) 144 CLR 1 at 7 per Mason CJ.
L J Hooker has not demonstrated any error of law which involves or creates, or establishes, a substantial injustice – or, indeed, any injustice – to it or its client, the lessor; nor, any question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage. For these reasons, leave should not be granted.
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