Mainline Pty Ltd t/as L J Hooker Southport v Young
[2013] QCATA 317
•29 October 2013
| CITATION: | Mainline Pty Ltd t/as L J Hooker Southport v Young [2013] QCATA 317 |
| PARTIES: | Mainline Pty Ltd t/as L J Hooker Southport (Applicant) |
| v | |
| Ms Gabrielle Young (Respondent) |
| APPLICATION NUMBER: | APL268 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 29 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is granted. 2. Appeal to appeal is allowed. 3. The decision of 14 June 2013 is set aside. 4. Gabrielle Young shall pay Mainline Pty Ltd t/as L J Hooker Southport $1,155 by 4:00pm on 26 November 2013. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where rent outstanding – where break lease fee credited towards outstanding rent – whether grounds for leave to appeal 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
L J Hooker Southport managed a unit at Southport rented by Ms Young from May 2012 to June 2013. After she vacated, Ms Young filed an application in the tribunal asking for her name to be removed from TICA. She also asked for $870 compensation under ss 60 and 191 of the Residential Tenancy and Rooming Accommodation Act 2008 (Qld).
A JP panel granted the relief that Ms Young claimed. L J Hooker wants to appeal that decision. It says that the tribunal erred in finding that Ms Young had paid the rent up to date.
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 appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[5] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[6] 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.[7]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[6]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[7]Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
L J Hooker’s submissions are brief and unhelpful. Ordinarily, it is not for the appeal tribunal to find the original tribunal’s error without any assistance of submissions from the applicant. The material before the learned JPs was disjointed and unclear. The tribunal expects better from parties who are in the business of residential tenancies and L J Hooker does itself no credit in these proceedings.
At the hearing, L J Hooker submitted that, because Ms Young broke the lease, she was obliged to pay rent up to the time that it found a new tenant. Ms Young left the tenancy on 8 March 2013 and the new tenant started paying rent on 18 April 2013. Therefore, L J Hooker claimed rent for that period, a total of $1,575.
Ms Guilfoyle, who appeared for L J Hooker at the hearing, conceded that the agency had received $500 after Ms Young vacated[8]. She said to the learned JPs “It’s still not quite…” indicating that $500 should have been deducted from the rent so that only $1,075 was outstanding. Despite this concession at the hearing, L J Hooker persists in its claim that the outstanding rent is $1,575. It does not explain why it has resiled from its concession at the hearing.
[8]Transcript page 1-19, line 12.
The learned JPs credited the break lease fee towards the outstanding rent[9]. This is an error. The break lease fee is intended to compensate the lessor for the costs of finding a new tenant. Even though it is calculated by reference to the rent, it is not payable as rent. The learned JPs’ decision of 14 June 2012 should be set aside.
[9]Reasons for decision page 2, lines 45-46.
Because Ms Young owed L J Hooker $1,075 rent, it is appropriate that her name be placed on TICA.
The learned JPs found, and L J Hooker does not dispute, that Ms Young should pay a cleaning fee of $80. Therefore, Ms Young owes L J Hooker $1,155. Because L J Hooker did not ask for a stay of the learned JPs’ decision, the bond has been paid out. Therefore, the appropriate order is that Ms Young pay L J Hooker $1,155 within 28 days of this decision.
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