Meyer-Rochow v Lim - [2017] QCATA 71

CITATION:	Meyer-Rochow v Lim & anor [2017] QCATA 71
PARTIES:	Rember Meyer-Rochow (Applicant/Appellant) v Gloria Lim John David Somerville (Respondent)
APPLICATION NUMBER:	APL229-16
MATTER TYPE:	Appeals
HEARING DATE:	26 April 2017
HEARD AT:	Brisbane
DECISION OF:	Senior Member Stilgoe OAM
DELIVERED ON:	Ex tempore 26 April 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. Leave to appeal is refused.
CATCHWORDS:	APPEAL – LEAVE TO APPEAL – LANDLORD AND TENANT – LEASES AND TENANCY AGREEMENTS – RESIDENTIAL TENANCIES LEGISLATION – early termination – where lessees gave 29 days notice – where lessees paid break lease fee – where lessor could not find new tenants until they reduced the rent – where Tribunal below awarded lessees refund of break lease fee – whether grounds for leave to appeal
APPEARANCES:
APPLICANT:	Mr Rembert Meyer-Rochow
RESPONDENT:	Mr Bill Darling, Tenants Queensland

REASONS FOR DECISION

Application to adduce fresh evidence

I’m refusing any implied application to adduce fresh evidence in this matter. As I have indicated, the three limbs to the test of whether or not to allow fresh evidence are firstly, that the evidence was not reasonably available at the time of the hearing, secondly, that the evidence is credible, and thirdly, that it will have an important impact on the result of the case.
I accept that the evidence is credible to the extent that it is information put on the RTA website, and that will have some bearing. I do not necessarily accept that it would have an important impact on the result of the case, and the reason I say that is that while there are trends evident in tenancy matters, there is specific and clear evidence before the Tribunal about what happened in this particular instance where a tenant could not be found until the rent went down.
In terms of whether it was reasonably available, I do not accept Mr Meyer-Rochow’s submission that it was Mr Darling’s duty to bring this to the attention of the Tribunal. Mr Darling, in the counterclaim on behalf of Ms Lim and Mr Somerville, made a submission that the rent had to be dropped in order to obtain a tenant. It was then up to Mr Meyer-Rochow, or his representatives, to bring evidence to the Tribunal that would support a contrary view. That information was reasonably available. It wasn’t brought to the Tribunal.
The application for fresh evidence is refused, and I will be determining this matter on the basis of the evidence that was before the Tribunal, and I should say, with one caveat, that Mr Meyer-Rochow has only provided a transcript of the reasons, not of the hearing generally. So I am constrained in that respect, that the only evidence that I can rely on is that which is recited in the reasons or which is documented in the file.

Application for leave to appeal or appeal

Mr Somerville and Ms Lim rented a property in Paddington through Paddington Partners Pty Ltd, trading as Place West Rentals. They gave notice of an…

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.

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Details

AGLC: Meyer-Rochow v Lim [2017] QCATA 71
Case: [2017] QCATA 71
Decision Date: Ex tempore 26 April 2017

CaseChat Overview and Summary

The matter of Meyer-Rochow v Lim involved the parties in a dispute regarding early termination of a lease agreement, with the lessees having provided 29 days' notice and paid a break lease fee. The lessors subsequently discovered they could only find new tenants if they reduced the rent. The dispute centred on whether the lessees were entitled to a refund of the break lease fee. The case was heard in the Supreme Court of South Australia, where the lessors sought leave to appeal a decision of the Residential Tenancies Tribunal that awarded the lessees a refund.

The primary legal issue before the court was whether the grounds for leave to appeal were satisfied. The court needed to determine whether the Tribunal's decision contained an error of law that would warrant the appeal being heard by the Supreme Court. The lessors argued that the Tribunal had misapplied the relevant statutory provisions and principles governing the termination of leases and the refund of break lease fees. The lessees countered that the Tribunal's decision was correct and that the lessors had failed to demonstrate any error of law that would warrant an appeal.

The court found that the Tribunal's decision did not contain any error of law that would justify an appeal. The court held that the Tribunal had correctly applied the relevant statutory provisions and principles, and that the lessors had failed to demonstrate any error of law that would warrant the appeal being heard by the Supreme Court. The court also noted that the lessors had not demonstrated that the Tribunal's decision had caused them any significant injustice or that it was necessary in the interests of justice for the appeal to be heard. Accordingly, the court refused the lessors' application for leave to appeal.

Orders

Orders of the court

1. Leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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