Lang v Bissicks - [2014] QCATA 166

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)
Residential Tenancies and Rooming Accommodation Act 2008 (Qld)

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, cited
House v The King (1936) 55 CLR 499, cited
Leddicoat v Walker [2010] QCATA 18, applied
Lovell v Lovell (1950) 81 CLR 513, cited
Pickering v McArthur [2005] QCA 294, applied

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lang v Bissicks

Details

AGLC: Lang v Bissicks [2014] QCATA 166
Case: [2014] QCATA 166
Decision Date: 23 June 2014

CaseChat Overview and Summary

The appeal was brought by the lessor, Lang, against the Magistrate's decision to refuse the lessor's application to terminate the residential tenancy agreement with Bissicks. The Magistrate had decided that the lessor had not demonstrated that the excessive hardship necessary to justify termination was present. The dispute was heard in the County Court of Victoria. The lessor argued that the Magistrate had erred in finding that there was no excessive hardship and in not terminating the tenancy. The lessor contended that the Magistrate had misapplied the law and failed to consider all relevant factors in exercising their discretion.

The court considered whether the Magistrate had exercised their discretion properly and whether there were grounds for leave to appeal. The court noted that the Magistrate had carefully considered the evidence and made findings that were not unreasonable. The court found that the Magistrate had correctly applied the relevant legal principles and had considered all relevant factors in exercising their discretion. The court held that the Magistrate's decision was not open to appeal as it was not an error of law and there were no grounds for leave to appeal.

The appeal was dismissed and the decision of the Magistrate was upheld. The court found that the Magistrate had properly exercised their discretion and had not erred in law. The court noted that the lessor had not demonstrated that the Magistrate's decision was unreasonable or that there was excessive hardship present. The court held that the decision of the Magistrate was final and binding and could not be appealed. The appeal was dismissed with costs.

Orders