Leigh v Go Rentals (Bundaberg) Pty Ltd
[2012] QCATA 141
•13 August 2012
| CITATION: | Leigh v Go Rentals (Bundaberg) Pty Ltd [2012] QCATA 141 |
| PARTIES: | Rebecca Leagh Gould (Applicant/Appellant) |
| v | |
| Go Rentals (Bundaberg) Pty Ltd Respondent |
| APPLICATION NUMBER: | APL044-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 13 August 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | Residential tenancy – whether tenant entitled to terminate lease – whether notice of intention to leave valid – whether bond returnable – counterclaim by lessor for damages for breach – counterclaim successful in part – whether leave to appeal should be granted Residential Tenancies and Rooming Accommodation Act 2008, ss 327, 331, 362 Robinson v Corr [2011] QCATA 302 |
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 (QCAT Act).
REASONS FOR DECISION
On 5 January 2011 Ms Gould was about to occupy unit premises at Bundaberg under an agreement with the lessor’s agent Go Rentals (Bundaberg) Pty Ltd [1], signed on 15 December 2010, and due to expire on 4 July 2011. An earlier, similar agreement between the parties was ending on 4 January 2011.
[1]“Lessor” is preferred to “Landlord”, because Go Rentals (Bundaberg) Pty Ltd appears in the subject lease both as “lessor” and “lessor’s agent”. However, no point was raised about the Respondent’s standing, either at first instance or on appeal.
In late December 2010, however, flood waters rose in the vicinity of the units and on 5 January 2011 Ms Gould gave the lessor a notice of her intention to leave[2] two days later. The stated grounds for the notice were “rising flood water ... in front of the units ... my medical condition ... power ... cut off for 4-5 days ... I feel the premises is (sic) not a liveable or safe dwelling.”
[2] Form 13, Residential Tenancies and Rooming Accommodation Act 2008, s 327.
The lessor disputes the validity of that notice.
Ms Gould commenced proceedings in QCAT claiming return of her bond ($840) and other moneys amounting, in all, to $1,131.
The lessor responded with a counterclaim for $1,184.20, being an amount allegedly owing by her for abandoning the lease, after crediting the amount of her bond.
After two preliminary hearings the matter was decided by a Magistrate, sitting as a QCAT Member on 9 November 2011. The learned Magistrate dismissed Ms Gould’s claim and allowed the lessor’s claim to the extent of $566.
Ms Gould seeks leave to appeal that decision, on these grounds:
“A question of law and a question of fact as follows:
[a]Decision makes finding of fact where there is no evidence to support that finding.
[b]I disagree with the decision because I believe the tribunal misinterpreted the evidence, made a wrong finding of fact or placed too much weight on a particular piece of evidence, this is why I appeal on a question of fact.
[c]Audio reason (sic) received but not clear how the decision or costs Ms Gould is required to pay was worked out.”
She seeks these orders:
(i)Revision of costs as end tenancy dates are conflicting and amounts payable for extra days; (ii) My name, Ms Rebecca Gould, be removed from the National Data Base as per Go Rentals letter 14 December 2011[3]; and (iii) I would like a fair decision based on the facts presented as I am aware of the legal document signed by myself”.
[3]A letter from Lessor to Tenant, dated 21 December 2011, states that, if the $566 awarded on 9 November 2011 is not duly paid, the Tenant’s default will be listed on a National Data Base.
Consideration
The learned Magistrate’s reasons, as recorded on audio disc,[4] leave a considerable amount to inference and implication. I transcribe the crux of the decision as follows:
“[O]n balance, on the whole of the evidence, the preponderance of that evidence in terms of the state of the flooding, the electricity, has not gone on to support the initial very strong evidence of [the Tenant] and her own personal needs. In my view, exiting the property, whilst she might well have made that personal decision, and indeed did, on all of the other practical and objective evidence before the court – that is not all of Ms Gough’s evidence[5] or all Ms Langford’s[6] evidence – but evidence of other persons, electricians, other tenants, that as between the owner and agency and [the Tenant] there was a lease that had been entered into between the parties earlier that December that in my view was binding and until the July end date.”[7]
[4] Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 123(2).
[5] Fay Elizabeth Gough, the Landlord’s Property Manager.
[6] Philomena Langford, Owner of the subject unit.
[7] Reasons for decision 9 November 2011.
It is implicit that the learned Magistrate, after due allowance for Ms Gould’s medical condition, rejected the proposition that the floodwaters made her unit inaccessible, let alone unliveable, and that her notice of intention to leave two days after service of same was insufficient.[8]
[8] Residential Tenancies and Rooming Accommodation Act 2008, s 331.
“Evidence of other persons”, to the effect that access to her unit was not cut off at any relevant time is to be found in the statutory declaration of Philomena Langford dated 20 September 2011, and the affidavits of Tracey May McDermid and Fay Elizabeth Gough sworn on 27 July 2011 and 7 October 2011 respectively. Evidently the learned Magistrate preferred that evidence to Ms Gould’s claim of unliveability, as the Magistrate was entitled to do. It is not an appellable error to prefer one witness’s evidence to another’s where different versions of facts in issue are given.
It is also apparent that the learned Magistrate treated Ms Gould’s claim of 4-5 days’ interruption of electricity supply as an exaggeration, preferring the evidence of an electrician, Andrew Perry, that power was turned off by tenants on his advice but restored within 48 hours.[9] The lessor’s claim that, in the meantime, Ms Gould could have used government “flood assistance” of $1,000 to stay elsewhere is not disputed.
[9] Andrew Perry, affidavit sworn 6 October 2011.
It followed that Ms Gould’s claim failed, and that the lessor was entitled to damages or compensation for her abandonment of the premises subject, of course, to a duty to act appropriately to minimise any loss[10] (as the lessor did, in securing another tenant 5 weeks later. There is no suggestion that the 5 weeks’ delay was unreasonable.) The learned Magistrate explicitly held that the Tenant “had a legal obligation to pay rent until the place was re-tenanted”.
[10] Residential Tenancies and Rooming Accommodation Act 2008, s 362.
However, Go Rental’s claim on behalf of the lessor was not uncritically accepted. Indeed, the learned Magistrate reduced it by more than fifty percent, from $1,184.20 to $566, disallowing claims for legal expenses, cleaning and advertising (presumably for a new tenant). Perhaps the advertising cost was a reasonable expense in seeking a new tenant, but there is no cross-appeal.
The agreed rent was $210 per week; in the 5 weeks and 1 day during which the tenant remained liable to pay it; therefore the amount due was approximately $1,050. The lease also provided for a “break lease fee” of one week’s rent, which the learned Magistrate described as “an interesting thing in itself but part of the contract and so in my view it’s sustainable”. However, for some unstated reason, she proceeded to disallow it.
It is not possible to glean from the reasons the learned Magistrate can be heard to give for her decision, or from available evidence, why the award was reduced to $566 or why that particular figure was chosen. The final two lines of the decision do commence with “Accordingly”, but the mere use of that word does not make a logical consequence of a non sequitur. In any event if the reduction was not warranted then Ms Gould is the beneficiary of it; again, as I have noted, there is no cross-appeal.
In a case of this kind there is no appeal as of right; and leave is required.[11] It is a prime object of the QCAT Act to resolve disputes quickly and economically.[12] Subject to justice and reason, finality of the primary decision is consistent with those aims.
[11] QCAT Act, s 142(3)(a)(i).
[12] QCAT Act, s 3(b).
There are well settled principles for deciding whether leave to appeal should be granted. It is not nearly enough for a party to express disappointment at the original decision, or a feeling that justice has not been done.[13] It must be shown that the decision in question is affected, arguably at least, by an appellable error, resulting in a substantial injustice to the intending appellant.[14] It is not such an error to prefer one version of the facts to another, or to attribute more weight to the evidence of one witness than another.
[13] Robinson v Corr [2011] QCATA 302 at [7].
[14]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Drew v. Bundaberg Regional Council [2011] QCA 359 at [19].
Findings of fact will not usually be disturbed on appeal if the findings have rational, albeit debatable support in the evidence.[15] Where reasonable minds may differ, a decision cannot properly be called wrong or erroneous simply because one conclusion has been preferred to another possible view.[16] One clear purpose of a “leave” provision, attached to an appeal process, is to preclude attempts to conduct retrials on the merits.[17] No question of general importance arises in this case.[18]
[15] Fox v Percy (2003) 214 CLR 118 at 125-126.
[16]Minister for Immigration and Citizenship v SZMDS & Another(2010) 240 CLR 611; [2010] HCA 16 at [131].
[17] Contrast QCAT Act, s 20 (review jurisdiction).
[18]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
Ms Gould complains that the learned Magistrate made a finding of fact without evidence, but does not specify the fact in question. There was evidence, accepted by the Magistrate, to support the crucial finding that the abandonment of the lease was without legal justification. Further, there is no specification of the alleged “misinterpretation of evidence”, or of the evidence to which, according to the tenant, too much weight was placed.
There is, then, no basis for a grant of leave to appeal.
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