Leddicoat v Walker
[2010] QCATA 18
•26 May 2010
| CITATION: | Leddicoat v Walker [2010] QCATA 18 |
| PARTIES: | Nicole LEDDICOAT (Applicant) |
| v | |
| Karla WALKER (Respondent ) |
APPLICATION NUMBER: APL033-10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | President |
DELIVERED ON: 26 May 2010
DELIVERED AT: Brisbane
ORDERS MADE: Application for leave to appeal dismissed
| CATCHWORDS : | RESIDENTIAL TENANCIES – APPLICATION FOR TERMINATION – MEANING AND EFFECT of Residential Tenancies and Rooming Accommodation Act 2008, ss 310, 343 – ‘EXCESSIVE HARDSHIP’ – where tenant’s husband was injured in a serious motor vehicle accident –where subsequent in reduction in household income and need for more suitable accommodation – where tenants signed agreement to terminate tenancy, requiring continued payments of rent until new tenants found – where tenants in arrears of rent – where tenants applied for a termination of tenancy agreement on grounds of excessive hardship – where Member awarded full release of bond to tenants and excused arrears in rent – where Member found that agents did not take sufficient action to mitigate loss and placed additional unnecessary hardship upon tenants – whether tenants established grounds for ‘excessive hardship’ under the legislation – whether actions taken by agents to mitigate loss is relevant PROCEDURAL FAIRNESS – ALLEGATIONS OF BIAS – where applicant alleges Member took personal interest in matter in favour of tenants - whether proceedings tainted by want of procedural fairness for bias Residential Tenancies and Rooming Accommodation Act 2008, ss 295, 310, 343 F.G. O’Brien Ltd v Elliott (1965) NSWLR 1473, applied |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: |
| RESPONDENT: |
REASONS FOR DECISION
Mrs Karla Walker and her husband Mr Geoff Walker were tenants in a home unit at Hornby Street Everton Park which is managed, for its owners, by Ray White Bulimba. The Walkers signed a fixed-term lease agreement, to expire on 24 February 2011. In December 2009 Mr Walker was seriously injured in a motor vehicle accident. As a consequence of his injuries the Walkers were faced with a significant reduction in household income, and Mr Walker was unable to access some of the household facilities located on the second, upper level of the unit.
On 11 January 2010 the Walkers provided the agents with a Form 13 Notice of Intention to Leave by 4 February 2010. They also signed an Agreement to Terminate the Fixed Tenancy, which kept the terms of the original tenancy agreement on foot until a new tenant took over the lease.
The termination agreement required the Walkers to continue paying the original weekly rent until a replacement tenant was found, and to pay for advertising. They paid the advertising fee, a ‘break release’ fee, and rent until 26 January when the first of four new rental applications were received by the agents. For varying reasons, the first three applications fell through but the fourth was accepted, under which the new tenants would move in on 1 March.
On 3 February the Walkers filed an application seeking a termination of the tenancy agreement, based on excessive hardship under s 310 of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA). A hearing was conducted on 1 March by a QCAT member. Ms Meagan Fanning, a property manager, appeared on behalf of Ray White Bulimba and Mrs Walker appeared for herself and Mr Walker.
After the hearing it was ordered that the residential tenancy agreement be terminated from 4 February 2010 on the grounds of excessive hardship, and the full bond released to the Walkers. In her reasons the learned Member found that, although the agents had advertised the property on their website, they had failed to take the necessary additional step of advertising in a newspaper. That, the Member concluded, meant they had failed to take the appropriate action to mitigate the owner’s loss, and had thereby placed additional unnecessary hardship upon the applicants.
Ms Fanning brought an application for leave to appeal that decision, apparently on behalf of one of the owners, Ms Leddicoat. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i). By a further QCAT order of 7 April 2010 it was directed that the application for leave be determined by written submissions according to a timetable, and both parties have exchanged and filed submissions.
Although Ms Fanning, who appears to have prepared and filed submissions supporting the application for leave to appeal, does not dispute the Walkers’ allegations of financial difficulty, or Mr Walker’s problems with household accessibility, she argues that the learned Member nonetheless erred in terminating the lease agreement (presumably on the grounds that excessive hardship had not been made out); and, in finding that the property agents had not taken reasonable steps, in the circumstances, to find new tenants.
She also contends, in effect, that the presiding Member took an excessively personal and sympathetic interest in the Walkers’ hardship claim and, for that reason, the proceeding was tainted by procedural unfairness.
Excessive Hardship
Section 310 of the RTRA allows tenants to apply to QCAT for a termination order on the ground that they will suffer excessive hardship if the agreement is not terminated. Section 295 gives lessors the same right. If QCAT is satisfied the applicant has made out the ground it is given a discretionary power terminate the agreement: RTRA, s 343.
The term ‘excessive hardship’ is not defined in the RTRA. The Macquarie Dictionary defines ‘hardship’ as ‘a condition that bears upon one; severe… need’; and ‘excessive’ as ‘exceeding the usual or proper limit or degree’.
I was not referred to, and am not aware of, any judicial interpretation of s 310. The notion of hardship as a basis for ending a residential tenancy has, however, been judicially considered in the context of not dissimilar phrases appearing in legislation governing landlord/tenant relationship in other States and Territories: (ACT) Residential Tenancies Act 1997, s 44 (‘significant hardship’); (VIC) 1997, s 234 (‘severe hardship’); (NSW) 1987, s 69A (‘undue hardship’); (SA) 1995, s 89 (‘undue hardship’); and, (NT) 1999, s99 (‘undue hardship’)).
In F.G. O’Brien Ltd v Elliott (1965) NSWLR 1473 Asprey J considered the meaning of hardship under s 70 of the Landlord and Tenant (Amendment) Act 1948 (NSW) (‘Court to consider hardship’) and said, at 1475:
There is no definition of ‘hardship’ in the Act. In its context I would be of the opinion that ‘hardship’ would comprehend any matter of appreciable detriment whether financial, personal, or otherwise. Each case must depend upon its own particular facts.
That construction has been adopted in subsequent decisions concerning residential tenancy disputes[1], and in proceedings arising in other jurisdictions[2]. In Noble v Vorreiter [2003] SARTT (R3814/03) the South Australian Residential Tenancies Tribunal had to consider whether to terminate a tenancy on the basis that the continuation of the agreement would cause the tenant ‘undue hardship’. The Tribunal referred to the decision of the ACT Administrative Appeals Tribunal in McMahon and the Treasurer[3], in which the President said at paragraph 20:
The term ‘undue’ is defined in the Macquarie Dictionary as ‘unwarranted; excessive; too great’ or ‘not proper, fitting or right; unjustified’. These definitions support Deputy President Hall’s view that ‘undue hardship’ may be described as hardship that is excessive in the circumstances. Depending on the circumstances, however, even a minor degree of ‘hardship’ might be regarded as unwarranted or excessive or too great or unjustified… It all depends on the circumstances of the case.
[1]Cosic v Director of Housing [2007] VSC 486 at [45]
[2]See Re Kabalan (1993) 113 ALR 330 at 333; Rainbow Bay Resort [2004] QBCCMmr 82; Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961 at [29]
[3][1995] ACTAAT 120
These decisions suggest, unsurprisingly, that each 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.
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.
The Walkers applied to have the tenancy agreement terminated on the basis of the personal and financial hardship which followed from Mr Walker’s accident. As he was unable to access the second level of the house they were forced to find alternative accommodation which was useable by him, and closer to the support of family and friends. Although it was their intention to leave by 4 February a suitable applicant to take over the tenancy had not been found, by the agent, by 3 February when they applied to QCAT.
In her reasons the learned Member took into account that Mr Walker had suffered ‘significant’ injuries; that he is ‘unable to access facilities within the rental accommodation’; that he is receiving a reduced income in the form of Workers’ Compensation payments, and that this is expected to continue for up to 12 months or more; that the family had suffered a ‘significant’ reduction in household income; that the Walkers had continued to pay rent until 26 January, when an applicant for the tenancy was to take over the lease; that they offered to pay approximately 2 weeks’ rental arrears owing from 26 January up to 1 March; that they had signed another lease for new accommodation in which they also had to pay an increased weekly rent; that Ms Walker is on stress leave from work in order to take care of Mr Walker and their dependent child; and, that she is also studying at university.
On the basis of this essentially uncontested evidence the learned Member was satisfied that the Walkers had established excessive hardship, and exercised her discretion to terminate the tenancy agreement under s 343.
Where a decision of the Tribunal involves questions of fact and degree there will be no grounds for appeal so long as the correct principles of law are applied[4] and the final conclusion is not unreasonable[5]. The facts and circumstances just set out point, strongly, to hardship on the Walkers’ part, to a degree which falls reasonably within the usual meaning of the word ‘excessive’. Once those things are appreciated, there is nothing in the decision to suggest that the learned Member incorrectly exercised her discretion to terminate the tenancy. Her conclusion was plainly, in the circumstances, reasonable and open.
Actions of the Property Managers to mitigate loss
[4]Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCA 456 at 286
[5]Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 450
Ms Fanning’s second contention for leave to appeal concerns the learned Member’s findings about the actions of the property manager in advertising the home to find a new tenant to replace the Walkers. Ms Fanning’s evidence was that the property was advertised on three different websites, in the window displays of the home, and in the rental office. However, the learned Member found that the property manager failed to take appropriate ‘action to mitigate their loss and this has placed the applicant in additional unnecessary hardship’.
Relief in the form of a termination of the tenancy is available to an applicant who establishes excessive hardship at the time of the application. The obligation lies solely upon the applicant. Whether the agents or owners, through their own subsequent actions, fail to mitigate their own loss is not a matter which would usually be relevant to the issue to be determined in the application. Certainly, it seemed to be irrelevant here.
It appears, then, that the learned Member may have misdirected herself by taking into account an irrelevant factor. That error will, however, only be relevant to any appeal if it would have affected the outcome. It is not necessary to set aside a decision simply because of an error in the primary judgment if that error was immaterial, and did not affect the ultimate decision: ReWalterscheid Australia Pty Ltd v Collector of Customs (1988) FCA 20 at [21] per Davies J.
The finding about a lack of advertising in newspapers and insufficient steps to mitigate loss was incidental to the learned Member’s full consideration of the relevant issues which, I am satisfied, established proper grounds for her decision. Consideration of an irrelevant factor, and the finding about it, made no difference to the correctness of the primary decision that addressed the correct and relevant issues. Regardless of the finding and the evidence about it the Member was entitled to find, on the basis of the applicants’ evidence, that excessive hardship had been established.
Procedural Unfairness
Ms Fanning’s final contention is, in effect and as I understand it, that the learned Member exhibited a personal interest or bias in favour of the Walkers in her determination of the matter.
The transcript shows that, when the hearing began, the presiding Member asks Mrs Walker to explain her grounds for seeking termination of the tenancy on the grounds of hardship[6]. After hearing about Mr Walker’s injuries and his difficulties accessing household facilities on the second level of the premises, the learned Member told Mrs Walker that the Tribunal also needed information about household income to consider the claim for excessive hardship[7]. Later, the Member enquired what action Mrs Walker has taken to negotiate with the property managers. Before addressing Ms Fanning, the learned Member then sought Mrs Walker’s confirmation that she had advanced all the matters she wished to be taken into account for her application for termination[8].
[6]Transcript, p 1
[7]Ibid., p 7
[8]Ibid., p 8
The transcript indicates, then, no more than that the presiding Member was careful to seek full information and submissions from Mrs Walker; but, also, that the same opportunity was offered to the respondent[9]. Nothing in the transcript suggests excessive sympathy for, or bias towards, the Walkers. QCAT’s procedures are, under its guiding legislation, focussed upon informality and expedition, and encourage presiding members to inform themselves about the issues and the evidence as effectively as possible[10]. The record shows that the Member here was diligent, but also even-handed, in achieving those ends.
[9]Ibid., p 11
[10]Queensland Civil and Administrative Tribunal Act 2009, ss 4, 28
As Ms Fanning’s complaint appears to be framed, the question is whether the learned Member’s conduct of the proceedings indicates that she became so ‘involved’ that bias is reasonably apprehended[11]. On any reading of the transcript that finding is not open. While some of the presiding Member’s questions were couched in terms indicating sympathy and concern for the Walkers’ plight after Mr Walker’s serious injury, that is hardly surprising; but it is also, of course, irrelevant – the nature and consequences of those injuries, personal and financial, were not in issue.
[11]Justice in Tribunals, Forbes, 3rd Ed, para 12.29
Even so, the proceeding was plainly fair in the sense each side was fully heard, and nothing in the Member’s words or conduct suggests pre-judgment, or bias. Indeed, she adjourned for a short interval to consider the matter before giving her decision. There is, in short, nothing to suggest anything other than proper observation of those principles of procedural fairness which should have obtained during the hearing.
Conclusion
The applicant for leave has not demonstrated any relevant, discernable error in the learned Member’s decision from which it could be said that an appeal might ultimately succeed. Nor is there is any question of importance in the decision about which further argument and a decision of the Appeal Tribunal would be of public advantage[12]. Leave to appeal is refused.
[12]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577.
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