Lewington v Lunt
[2013] QCATA 341
•19 December 2013
| CITATION: | Lewington v Lunt [2014] QCATA 341 |
| PARTIES: | Mr Johnathon Lewington (Applicant) |
| V | |
| Mr Kerry Lunt (Respondent) |
| APPLICATION NUMBER: | APL420 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 19 December 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE –where air conditioning not working for short period – where tenant refused to pay rent - where lessor issued notice to remedy breach and notice to leave – where tenant terminated tenancy early – whether lessor mitigated his loss Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 326(3) and 421(1)(b) Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
In January 2013 Mr Lewington rented an apartment from Mr Lunt. He paid $930 per week rent for a “stylish, spacious and ultra-convenient…exclusive apartment” at Milton. He signed a 12-month agreement. In March 2013, the air-conditioner developed problems. It was not working for 24 days. A contractor carried out major repair work over 8 days, which made the master bedroom unliveable for that short time.
Mr Lewington stopped paying the rent in April 2013. Mr Lunt issued a notice to remedy breach and a notice to leave. Mr Lewington left the tenancy on 4 May 2013. Mr Lunt readvertised the apartment but, as at the date of hearing, he had not found new tenants. He applied for an order that Mr Lewington pay for the rent he lost by the early termination. The tribunal ordered Mr Lewington pay Mr Lunt $17,670 plus the filing fee.
Mr Lewington wants to appeal that decision. He says that the learned Adjudicator erred by failing to consider whether Mr Lunt had mitigated his loss or failed to take steps that could have avoided the loss. He says that the learned Adjudicator failed to consider the requirements of ss 326(3) and 421(1)(b) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). He says that the learned Adjudicator made findings of fact where there was no evidence to support the findings. He says the learned Adjudicator gave Mr Lunt compensation for a loss that had not yet occurred. He says the learned Adjudicator’s calculations are unclear or fatally flawed. He says that the learned Adjudicator erred in his calculation of the reduction in rent because the air conditioning was not working.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]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.
The learned Adjudicator took evidence about Mr Lunt’s steps to mitigate his loss. The tribunal heard that Mr Lunt had reduced the rent and changed agents[5]. It had been difficult rent in the first place, with the agent taking about 3 months to find Mr Lewington[6]. Mr Lunt also put the apartment up for sale, to reduce his losses[7].
[5] Transcript page 1-6, lines 33 - 42
[6] Transcript page 1-7, line 33
[7] Transcript page 1-8, lines 31 - 35
The learned Adjudicator asked Mr Lewington what he thought about Mr Lunt’s efforts to find a tenant. Mr Lewington criticised the efforts of the first real estate agent when Mr Lewington took the tenancy. He told the learned Adjudicator that he had seen the apartment offered for sale more than it was offered for lease.
The learned Adjudicator accurately recorded the evidence in his reasons for decision. He noted that Mr Lunt was thinking of the reducing the rent further; he did not state that the rent had been reduced.[8] He decided, as he was entitled, that putting the apartment up for sale did not affect the prospect of it being rented. He thought the efforts to find a new tenant were reasonable. He noted the market conditions. The evidence supports the learned Adjudicator’s view that Mr Lunt took steps to mitigate his loss and I am satisfied that the learned Adjudicator was not in error.
[8] Reasons for decision, lines 44 - 45
Mr Lewington says that Mr Lunt could have avoided his loss by accepting Mr Lewington’s offer of a 40% reduction in rent. He says that Mr Lunt’s failure to accept that offer is a breach of s 362(3)(c). Because the concept of mitigation is not defined in the Residential Tenancies and Rooming Accommodation Act, it takes the Common Law meaning. At Common Law, a claimant does not need to take steps to mitigate a loss until a wrong is committed against him[9]. Mr Lewington’s offers of a reduced rent pre-dated the Form 11 notice to remedy breach. Mr Lunt did not fail to mitigate his loss by failing to accept a lower rent from Mr Lewington before the breach had occurred.
[9] McGregor on Damages, Sweet & Maxwell London 17th edition at 7-020
It does not matter that the learned Adjudicator did not refer specifically to ss 326(3) and 421(1)(b) of the Act. It is enough that the learned Adjudicator considered the issue and made a decision based upon the evidence before him.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[10] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[11] However, the appeal tribunal must exercise its own discretion when considering whether the original decision maker was in error. As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[12]
[10]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[11] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[12] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
As I have already mentioned, the learned Adjudicator did not find, as a fact, that Mr Lunt reduced the rent to $750 per week. He accepted Mr Lunt’s concession that he was thinking about dropping the rent to that point and that the apartment would be more attractive at that rent.
Mr Lewington’s argument about the learned Adjudicator’s error in calculating the loss is confusing. On the one hand, he says that Mr Lunt failed to mitigate his loss because he did not reduce the rent. On the other hand, he says that the learned Adjudicator should not accept the reduced rent of $750 as the figure from which to calculate loss. Mr Lewington cannot have it both ways. On balance, the learned Adjudicator did the best he could with the available evidence. I am not persuaded that the learned Adjudicator was in error and I can find no compelling reason to come to a different view.
For that reason, I do not accept that the learned Adjudicator’s calculation of the loss was fatally flawed.
Mr Lewington challenges the learned Adjudicator’s assessment that the apartment was not unfit to live in. Mr Lewington confuses, as the learned Adjudicator did not, the concept of “unliveable” and “uncomfortable”. Except for 8 days when the air conditioning was being fixed, the apartment was not unliveable, even though Mr Lewington and his partner found it so. For a short time, though, the amenity of the apartment did decrease substantially. The learned Adjudicator assessed that loss of amenity based upon the evidence of both parties. He increased the compensation payable for the 8 days. The evidence can support his calculation and I can find no compelling reason to come to a different view.
Both parties have filed fresh evidence about the state of the rental market and what has occurred with this apartment. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[13]. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could the parties have obtained the evidence with reasonable diligence 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?[14]
[13] QCAT Act ss 137, 138.
[14] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408
Mr Lewington could have obtained the RP Data search prior to the hearing. He has not explained why the material was not available earlier and, therefore, the evidence should not be admitted.
Both parties have filed evidence showing that the apartment was re-let on 18 September 2013 for $850 per week. That evidence does not assist Mr Lewington. On my calculations, if that evidence was accepted, Mr Lewington’s liability should increase to over $19,000 plus advertising costs. Because Mr Lunt did not appeal the learned Adjudicator’s decision, I am not inclined to change the original decision in light of later facts.
The parties did not ask the learned Adjudicator to deal with the bond because they reached a separate agreement about that. It is not the learned Adjudicator’s error. If Mr Lunt accepts both the bond and the full amount of the learned Adjudicator’s order then Mr Lewington will have rights but that is not a matter for the appeals tribunal.
As the learned Adjudicator observed, Mr Lewington engaged in some high risk strategies in his dealings with Mr Lunt. Those strategies backfired. He should bear the consequences.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.