Morrow v Sweeney - [2013] QCAT 492

CITATION:

Morrow v Sweeney [2013] QCAT 492

PARTIES:	Glen Michael Morrow (Applicant)
V
Paul Sweeney (Respondent)

APPLICATION NUMBER:

MCDO1025/13

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

20 August 2013

HEARD AT:

Southport

DECISION OF:

C Trueman, Adjudicator

DELIVERED ON:

20 September 2013

DELIVERED AT:

Southport

ORDERS MADE:

1. That the claim is dismissed

CATCHWORDS:

Residential Tenancy agreement, fixed term lease, claim of excessive hardship, compensation for breach and repudiation of lease agreement, claim for loss of quiet enjoyment and personal injuries, invalid Notice to Leave.

Queensland Civil and Administrative Tribunal Act 2009
Residential Tenancies and Rooming Accommodation Act 2008

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Glen Morrow
RESPONDENT:	Mr Paul Sweeney

REASONS FOR DECISION

The issues

The matters to be determined are whether the lease agreement should be terminated as of 1 August 2013 due to excessive hardship and if the tenant is entitled to compensation for breach of the lease agreement in the sum of $994.27.

Background to the Dispute

The parties entered into a written residential tenancy agreement on 18 August 2012 for the property at 91 Gibraltar Drive, Isle of Capri for a period of 6 months. The lease was extended for a further fixed term period to 15 August 2013. The rent for the premises was $1800.00 per week.
The property was managed at the time by Lucy Cole Prestige Properties. It is undisputed that the Agents served Mr Morrow with a Form 10 Notice of Intention to sell premises dated 29 June 2013. A Form 12 Notice to Leave without grounds was served on Mr Morrow advising him that the Owner required vacant possession at the end of the lease. The Notice was issued on 12 June 2013 and gave notice to Mr Morrow to vacate the property by 15 August 2013.
It is undisputed that Mr Morrow was served with a Form 11 Notice to remedy Breach relating to rental arrears. The Notice was issued on 18 July 2013 and required the rent arrears to be paid by 14 August 2013. The Notice claimed that Mr Morrow owed rent in the sum of $3085.71.Mr Morrow disputed he owed any rent arrears.
Mr Morrow served Mr Sweeney with a Form 13 Notice of Intention to leave on 30 July 2013 giving Notice of his intention to leave the property on 1 August 2013. Mr Morrow stated the grounds for issuing the Notice was that “The Lessor repudiated the lease and as a result the tenant is entitled to have it terminated and to be paid compensation further or alternately hardship”. It appears from the dates of the notices that the Notice to Leave served by Mr Morrow on Mr Sweeney was in retaliation to the Form 11 Notice to remedy Breach relating to rental arrears issued by Mr Sweeney and served on Mr Morrow.
Mr Morrow alleges that the Mr Sweeney has “repudiated the lease by:
a. Repeated breaches of the obligation to allow quiet possession by having…

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.

Continue reading Morrow v Sweeney

Details

AGLC: Morrow v Sweeney [2013] QCAT 492
Case: [2013] QCAT 492
Decision Date

CaseChat Overview and Summary

In the case of Morrow v Sweeney, the applicant, Glen Michael Morrow, sought a termination of his lease agreement and compensation for alleged breaches by the respondent, Paul Sweeney, the property owner. The dispute arose from a residential tenancy agreement for a property in Isle of Capri, which was initially set for a period of six months and later extended to 15 August 2013. Morrow argued that Sweeney had repudiated the lease through various breaches, including unauthorized tree removal and failure to mitigate the effects of a wasp's nest, resulting in personal injuries to Morrow's wife. Sweeney served Morrow with a Notice to Leave, and Morrow responded with a Notice of Intention to leave, citing excessive hardship and seeking termination of the lease on 1 August 2013.

The primary legal issues the Tribunal had to decide were whether Morrow was entitled to an earlier termination of the lease due to excessive hardship and if he was entitled to compensation for the alleged breaches. The Tribunal examined whether Morrow had demonstrated excessive hardship warranting an earlier termination of the lease, and if Sweeney's actions constituted breaches of the lease agreement justifying compensation. The Tribunal also considered whether the Notice to Leave issued by Sweeney was valid and if Morrow's claims for compensation were substantiated.

The Tribunal found that Morrow had not demonstrated any excessive hardship that would justify an earlier termination of the lease. While it was acknowledged that Sweeney did not inform Morrow before removing the trees, the Tribunal did not find this action to be a breach of the lease agreement as it was aimed at maintaining the property's appearance. Furthermore, Morrow's claims for compensation related to the tree removal and the wasp's nest incident were dismissed due to lack of evidence. The Tribunal found that Morrow's claims were not supported by evidence and were, in fact, frivolous. Consequently, the Tribunal concluded that the Notice to Leave issued by Sweeney was valid, and Morrow's claims for compensation were without merit.

In conclusion, the Tribunal dismissed Morrow's application for an earlier termination of the lease and his claims for compensation. The Tribunal found that Morrow had not provided sufficient evidence to support his claims of excessive hardship, breaches by Sweeney, or the validity of his compensation claims. As a result, the Tribunal ordered that the claim be dismissed in its entirety.

Orders