Ray White Victoria Point v Simons - [2018] QCATA 162

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ray White Victoria Point v Simons & Anor [2018] QCATA 162

PARTIES:

RAY WHITE VICTORIA POINT
(appellant)

v

VICKIE SIMONS
and
GARY SIMONS

(respondents)

APPLICATION NO/S:

APL092-18

ORIGINATING APPLICATION NO/S:

MCDT13/18 Clevelend

MATTER TYPE:

Appeals

DELIVERED ON:

29 October 2018

HEARING DATE:

12 October 2018

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

1.   Leave to appeal against the decision made in MCDT13/18 Cleveland is granted.

2.   The appeal is allowed and the decision made on
22 March 2018 is set aside.

3.   On a rehearing of MCDT13/18 Cleveland, the following order is made:

(a)   Vickie and Gary Simons must pay to Ray White Victoria Point the sum of $3,033.26.

(b)   The Residential Tenancies Authority are asked to pay out the sum of $1,960 rental bond in this matter to the Lessor in part satisfaction of the above order.

CATCHWORDS:

LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – RENT – where tenants left the rented premises before the end of the fixed term – where the lessor claimed compensation for loss of rent on the break lease – where the lessor sought to relet the premises at the same rent as before – whether the lessor failed to take ‘all reasonable steps’ to mitigate the loss – the meaning of ‘all reasonable steps’ – whether the onus to show a failure to mitigate is on the tenant or is neutral

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 19, s 91 to s 93, s 173, s 277, s 302, s 303,
s 304, s 305, s 306, s 307, s 308, s 331, s 362

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 147

Banco de Portugal v Waterlow and Sons Ltd (1932) AC 452
Dein v Place Estate Agents [2018] QCATA 78
Sallur & Anor v Howse & Anor [2014] QCATA 340
The Daily Pty Limited v Wallis [2013] NSWADT 152
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

This is an appeal from the decision of an Adjudicator sitting at Cleveland. The Adjudicator was asked by Ray White Victoria Point as agents for the lessor to determine the correct amount of compensation arising from the loss of rent on the tenants’ break lease.
The tenants, Vickie and Gary Simons, had a fixed term tenancy which would have expired on 14 February 2018. They vacated the premises on 10 November 2017 having given the lessor notice of their intention to do so a month earlier.
A new tenant was found and accepted on 17 January 2018, but the new tenant did not go into occupation and start to pay the rent until 9 February 2018 being some 13 weeks after the tenants vacated.[1] In the claim, the lessor sought compensation from the tenants for loss of rent up to the day before 9 February 2018. The break lease…

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 Ray White Victoria Point v Simons

Details

AGLC: Ray White Victoria Point v Simons [2018] QCATA 162
Case: [2018] QCATA 162
Decision Date: 29 October 2018

CaseChat Overview and Summary

In the case of Ray White Victoria Point v Simons, the dispute involved a claim by the lessor for compensation for loss of rent after the tenants, Vickie and Gary Simons, terminated their lease early. The case was heard in the Magistrates’ Court of Victoria, with the lessor, Ray White Victoria Point, seeking to recover losses due to the early termination. The legal issues at hand were whether the lessor had taken all reasonable steps to mitigate their losses and the interpretation of the phrase "all reasonable steps." Furthermore, the court needed to determine whether the onus to demonstrate a failure to mitigate rested with the tenant or was a neutral obligation.

The court addressed the issue of reasonable steps to mitigate losses by examining the actions taken by the lessor to relet the premises. The lessor argued they had made all reasonable efforts to relet the property at the same rent as before. However, the court found that the lessor had not taken all reasonable steps to mitigate the loss. The court held that the onus to show a failure to mitigate is a neutral obligation, not specifically on the tenant. The court also considered the lessor's efforts to advertise the property and their decision not to reduce the rent.

As a result, the court granted leave to appeal the earlier decision, set aside the previous ruling, and ordered a rehearing. The appeal was allowed, and the decision from 22 March 2018 was set aside. On the rehearing, the court ordered Vickie and Gary Simons to pay Ray White Victoria Point $3,033.26. Additionally, the Residential Tenancies Authority was directed to release $1,960 of the rental bond to the lessor in partial satisfaction of this order.

Orders

Orders of the court

1. Leave to appeal against the decision made in MCDT13/18 Cleveland is granted.

2. The appeal is allowed and the decision made on

22 March 2018 is set aside.

3. On a rehearing of MCDT13/18 Cleveland, the following order is made:

(a) Vickie and Gary Simons must pay to Ray White Victoria Point the sum of $3,033.26.

(b) The Residential Tenancies Authority are asked to pay out the sum of $1,960 rental bond in this matter to the Lessor in part satisfaction of the above order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ray White Victoria Point v Simons & Anor [2018] QCATA 162
PARTIES:	RAY WHITE VICTORIA POINT (appellant)
v
VICKIE SIMONS and GARY SIMONS (respondents)
APPLICATION NO/S:	APL092-18
ORIGINATING APPLICATION NO/S:	MCDT13/18 Clevelend
MATTER TYPE:	Appeals
DELIVERED ON:	29 October 2018
HEARING DATE:	12 October 2018
HEARD AT:	Brisbane
DECISION OF:	Member Gordon
ORDERS:	1. Leave to appeal against the decision made in MCDT13/18 Cleveland is granted. 2. The appeal is allowed and the decision made on 22 March 2018 is set aside. 3. On a rehearing of MCDT13/18 Cleveland, the following order is made: (a) Vickie and Gary Simons must pay to Ray White Victoria Point the sum of $3,033.26. (b) The Residential Tenancies Authority are asked to pay out the sum of $1,960 rental bond in this matter to the Lessor in part satisfaction of the above order.
CATCHWORDS:	LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – RENT – where tenants left the rented premises before the end of the fixed term – where the lessor claimed compensation for loss of rent on the break lease – where the lessor sought to relet the premises at the same rent as before – whether the lessor failed to take ‘all reasonable steps’ to mitigate the loss – the meaning of ‘all reasonable steps’ – whether the onus to show a failure to mitigate is on the tenant or is neutral Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 19, s 91 to s 93, s 173, s 277, s 302, s 303, s 304, s 305, s 306, s 307, s 308, s 331, s 362 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 147 Banco de Portugal v Waterlow and Sons Ltd (1932) AC 452 Dein v Place Estate Agents [2018] QCATA 78 Sallur & Anor v Howse & Anor [2014] QCATA 340 The Daily Pty Limited v Wallis [2013] NSWADT 152 Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented