Rigby v Ray White Labrador
[2012] QCATA 212
•25 October 2012
| CITATION: | Rigby and Anor v Ray White Labrador [2012] QCATA 212 |
| PARTIES: | Adam Rigby Kaoru Rigby (Applicants/Appellants) |
| v | |
| Ray White Labrador (Respondent) |
| APPLICATION NUMBER: | APL097-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | R Oliver, Senior Member |
| DELIVERED ON: | 25 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | Residential tenancy – where early termination of a tenancy agreement by the tenant – where loss of rental – whether lessor mitigated the loss Queensland Civil and Administrative Tribunal Act2009, s 142(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Mr Adam Rigby and Mrs Kaoru Rigby entered into a tenancy agreement with Ray White Labrador on 19 March, 2010. At the end of the term the applicants agreed to a six month extension of the tenancy agreement resulting in the agreement ending on 18 September 2011. Prior to its expiration the applicants were offered accommodation under the National Rent Affordability Scheme (NRAS). In order to take up this offer they terminated the tenancy agreement on 3 June 2011. The respondent managed to find a new tenant for the premises on 26 August 2011, resulting in a loss of approximately two months rent.
Prior to signing the extension of the agreement the applicants say they had a discussion with the representative of the respondent about their application to the NRAS and it was their understanding that the tenancy agreement could be terminated, without any penalties, if a property became available.
When a property did become available through NRAS the respondent advised the applicants that if they wanted to terminate the tenancy they would have to pay a break lease fee and that they would also incur rental costs until a new tenant was found. A new tenant was found first on 26 August 2011 and the tenancy agreement was terminated on 3 June 2011.
The applicants disputed that they had to pay these costs and commenced proceedings in the Tribunal seeking orders that they were not liable for the break lease or for ongoing rental costs while the property remained vacant. They agreed to forfeit the bond of $1,220.00 to cover some of these and other costs, although the bond was also used to pay 3 weeks of arrears of rent. They also claimed the respondent failed to take steps to relet the property within a reasonable time, in other words, mitigate the loss.
On 14 February 2012 the matter was heard before a Tribunal Adjudicator. The respondent claimed a total of $2,819.36 which included advertising, rental and water charges after the bond was taken into account. After hearing from both parties the learned Adjudicator found that the applicants should pay to the respondent the following costs: the advertisement for a new tenant, the water bill, one week’s break lease fee and a further three weeks of rent, totalling at the amount of $1,568.36. This amount was to be paid on, or before, 13 March 2012.
From that decision, the applicants filed an application for leave to appeal contending that the Tribunal failed to take into account the applicant’s evidence of the discussions with the respondent about the reason for the extension and that the applicants could terminate the tenancy without penalty and also they should receive a credit for the telephone connection they had installed.
Leave to appeal is necessary as this is an appeal from the minor civil disputes jurisdiction.[1] Leave to appeal is ordinarily granted in accordance with the following principles: whether there is a reasonably arguable case of error;[2] whether the applicant has reasonable prospects at obtaining substantive relief;[3] whether leave is necessary to correct a substantial injustice to the applicant caused by some error[4]; whether the matter is of general importance of which further argument and a decision of the appellate court or tribunal, would be to the public advantage.[5]
[1] QCAT Act, s 142(3).
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at 2.
[4] QUYD Pty v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]Glenwood Properties Pty Ltd v Fruehauf Australia 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 disturb the findings of fact of the primary decision-maker unless those findings were not open on the evidence, they lacked an evidentiary basis, or were affected by some error of law.[6] The grounds of appeal set out in the application contend that the Tribunal did not consider the applicants' evidence in respect of the arrangements they say they entered into with the respondent when the tenancy agreement was extended. The grounds then simply reiterate the matters that were argued before the Tribunal at first instance.
[6] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355.
It has been said often enough that the Appeal Tribunal is not a forum to simply reargue those matters that were argued before the original Tribunal in the hope of a different outcome. For leave to appeal, or permission, to be granted some error of law must be identified or there was a conclusion of fact that was not open on the evidence.
I have read the transcript of evidence and it demonstrates that the learned Adjudicator gave both parties amply opportunity to give evidence and put their respective cases. The learned Adjudicator was mindful of the Rigbys' circumstances, their rights and obligations under the extended tenancy agreement and the implication of the Residential Tenancies and Rooming Accommodation Act 2008. Having considered all of those matters and the evidence he came to a conclusion which favoured the Rigbys and was consistent with his obligations under s 13 of the QCAT Act in making an order that was fair and equitable in the circumstances.
The applicants have been unable to identify any error on the part of the learned Adjudicator, nor is any apparent from my consideration of the submissions and the evidence before the Tribunal.
For these reasons the appeal should not be granted.
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