Lang v Bissicks
[2014] QCATA 166
•23 June 2014
| CITATION: | Lang v Bissicks [2014] QCATA 166 |
| PARTIES: | Rebecca Lang (Applicant/Appellant) |
| v | |
| Fae Bissicks (Respondent) |
| APPLICATION NUMBER: | APL055-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President |
| DELIVERED ON: | 23 June 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | Application for leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where lessor applied for termination dues to excessive hardship – where Magistrate exercised discretion to refuse application – whether discretion exercised properly – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i) Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, cited |
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
The Residential Tenancies and Rooming Accommodation Act 2008 (Qld) allows either party to a tenancy agreement to terminate due to excessive hardship. What happened was a tale of misadventure, but a Magistrate, sitting as a member of the tribunal, did not consider it amounted to excessive hardship. Ms Lang wants to appeal that decision.
Ms Lang owns a house in Bundaberg and lived there with her partially deaf son, who is now 13. For five years, she ran her naturopathy business from that home.
In January 2013, Ms Lang’s house was damaged by a tornado. In April 2013, she had to leave the house because it was unliveable and needed repairs. Around about the same time, Ms Lang’s long term partner proposed to her. He lived in Perth. There was no rental accommodation available in Bundaberg so Ms Lang, her son and their pets moved to join her partner.
In July 2013, Ms Lang contributed $10,000 towards the purchase of a home in Western Australia. The home was registered in her partner’s name only.
The repairs to Ms Lang’s Bundaberg house were completed in November 2013, and Ms Lang signed a 12-month tenancy agreement with Ms Bissicks, who also intended to run a business from the house.
Ms Lang and her partner were married on 1 December 2013. Within the first week of their marriage, he became abusive and on 27 December 2013, police removed Ms Lang and her son from the house to keep them from harm. They returned to Queensland in January 2014. They are homeless - Ms Lang has no income.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] The principles the appeal 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:
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.[2]
[1]QCAT Act, s 142(3)(a)(i).
[2][2005] QCA 294 at [3].
The learned Magistrate found that Ms Lang suffered hardship and trauma but she was not satisfied that Ms Lang had suffered excessive hardship. The learned Magistrate noted that Ms Lang was receiving $380 per week rent and that she had substantial equity in the house which could she could access to ‘tide her over’.[3]
[3]Transcript page 1-8, lines 24 – 29.
The learned Magistrate balanced that hardship against the rights of Ms Bissicks as tenant. The learned Magistrate noted that Ms Bissicks was entitled to the certainty of a 12 month lease; that she was running a business from the house; and that she had clients booked in for the coming months.
Alan Wilson J considered the meaning of “excessive hardship” in Leddicoat v Walker,[4] concluding with these words:
[14] …(e)ach claim for relief on the ground of excessive hardship under the RTRA will require consideration of the particular circumstances in each case. That approach sits comfortably with the presumed intention of the legislature: it is readily foreseeable that, for example, even a minor but debilitating physical injury or ailment could make some premises effectively uninhabitable for the disabled tenant.
[15] The phrase is also to be construed and applied in light of s 343 of the RTRA, which plainly confers a broad discretionary power to lawfully terminate a lease agreement if the ground of excessive hardship is made out.
[4][2010] QCATA 18 at [14] - [15].
The appeal tribunal will not interfere in the exercise of the learned Magistrate’s discretion unless Ms Lang can show that she acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters.[5] That the appeal tribunal might have exercised the discretion differently, is not a basis for changing the decision. Ms Lang must show that the decision is unjust or unreasonable, and involved a clear misapplication of the discretion.[6]
[5]House v The King (1936) 55 CLR 499 at 504.
[6]Lovell v Lovell (1950) 81 CLR 513.
Based on the transcript and material before the learned Magistrate, I am not persuaded that she acted on a wrong principle. There is nothing to suggest that the learned Magistrate made a mistake of fact or that she was influenced by irrelevant matters. Leave to appeal should be refused.
Both parties have filed additional evidence in their submissions to the appeal tribunal. The appeal tribunal will only accept additional evidence if it was not reasonably available at the time the proceeding was heard and determined. Where a party seeks to rely on such evidence, the party must satisfy three tests: with reasonable diligence, could the evidence have been obtained for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[7]
[7]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Ms Lang has provided extra evidence of her dire financial circumstances. Most of this evidence was available prior to the hearing. Even now, although Ms Lang makes submissions about the state of her mortgage and her attempts to access the equity in her home, she has not provided any letters to or from her financier. She has not provided a copy of her mortgage statement. There is no independent evidence of the costs she is incurring in pet boarding fees. She has no evidence of her attempts to find housing or work.
Ms Bissicks has also provided some further evidence by way of an unsworn statement. It might be that, had the learned Magistrate known Ms Bissicks owned two other properties, the tribunal decision may have been different. However, in the absence of an error by the learned Magistrate, the appeal tribunal cannot substitute its own decision. As the learned Magistrate pointed out, Ms Lang has other remedies, which may involve a fresh application to the tribunal.
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