Sarvari v Rent My Property Pty Ltd - [2017] QCATA 14

CITATION:	Sarvari v Rent My Property Pty Ltd [2017] QCATA 14
PARTIES:	Zahra Sarvari (Applicant/Appellant)
v
Rent My Property Pty Ltd (Respondent)
APPLICATION NUMBER:	APL228-16
MATTER TYPE:	Appeals
HEARING DATE:	27 January 2017
HEARD AT:	Brisbane
DECISION OF:	Senior Member Stilgoe OAM
DELIVERED ON:	Ex tempore reasons 27 January 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. Leave to appeal is granted. 2. The appeal is allowed. 3. Paragraph 1 of the Tribunal decision dated 15 June 2016 is set aside. The following order is substituted: The Tenancy is terminated as and from 15 June 2016. 4. Paragraph 2 of the Tribunal decision dated 15 June 2016 is set aside.
CATCHWORDS:	APPEAL – LEAVE TO APPEAL – LANDLORD AND TENANT – LEASES AND TENANCY AGREEMENTS – RESIDENTIAL TENANCIES LEGISLATION – application for termination due to excessive hardship – where tribunal terminated tenancy agreement for excessive hardship – where tribunal terminated tenancy agreement on a date in the future – where tribunal ordered break lease compensation -whether compensation can be awarded on an tenant’s application for excessive hardship without application by landlord – whether tribunal erred in awarding compensation – whether grounds for appeal
APPEARANCES:
APPLICANT:	Zahra Sarvari Niloufer Sarvari, support person Amir Reza, interpreter
RESPONDENT:	David Isles, Rent My Property Pty Ltd

REASONS FOR DECISION

Ms Sarvari entered into a tenancy agreement with Rent My Property on the 21^st of January 2016. This was a one year fixed term agreement due to end on the 20^th of January 2017. In May 2016, Ms Sarvari was offered a tenancy through the Department of Housing. She signed a tenancy agreement with the Department on the 23^rd of May 2016. Her application to the tribunal below indicates that she’d been on the waiting list for approximately three years.
On the 23^rd of May 2016 Ms Sarvari provided a notice of intention to leave to Rent My Property. The notice showed that she intended to vacate the property on 3 June 2016, which she did.
On the 25^th of May 2016 Ms Sarvari filed an application for termination of a lease agreement due to financial hardship as her circumstances had changed following the acceptance of the offer from the Department of Housing. Prior to the offer Ms Sarvari was receiving rent assistance from Centrelink. When she accepted the offer from the Department, the rent assistance ceased. As a result of that, the total household income per week was only $2 more than the rent she was paying to Rent My Property. The tribunal heard the application on the 15th of June and ordered that the tenancy agreement be terminated on the basis of hardship from the 27th of June 2016.
Ms Sarvari has applied for leave to appeal the tribunal’s decision. To succeed in an application for leave to appeal Ms Sarvari must demonstrate two things. Firstly, an error by the tribunal and, secondly, that because of the error there is substantial injustice. Ms Sarvari did not point me to…

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.

Keep reading for free

Create a free CaseChat account to read Sarvari v Rent My Property Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] QCATA 14
Decision Date: 27 January 2017

CaseChat Overview and Summary

In the case of Sarvari v Rent My Property Pty Ltd, the dispute arose between a tenant, Ms Sarvari, and a landlord, Rent My Property Pty Ltd, regarding a tenancy agreement. The issue came before the Court where the initial decision of the tribunal, which terminated the tenancy agreement due to excessive hardship and ordered compensation, was contested. The tribunal had terminated the tenancy agreement on a future date and ordered compensation for the break lease, without a request from the landlord for such compensation. The primary legal issues for the court were whether compensation could be awarded on a tenant's application for excessive hardship without a corresponding application from the landlord, and if the tribunal had erred in awarding compensation.

The court considered that the tribunal had indeed erred in awarding compensation without a request from the landlord. The court noted that the Residential Tenancies Act required both parties to be involved in the process of awarding compensation. The tribunal's decision to terminate the tenancy and award compensation without the landlord's participation was inconsistent with the statutory framework. The court also found that the tribunal had erred in setting a future termination date for the tenancy, as the statutory provisions did not permit such a course of action. This was deemed to have been an error of law.

Consequently, the court granted leave to appeal and allowed the appeal. The court set aside the relevant paragraphs of the tribunal's decision and substituted new orders. Specifically, the tenancy was terminated as of the date of the tribunal’s decision, which was 15 June 2016. The court ruled that compensation should not be awarded without the landlord's involvement, thus nullifying the tribunal's compensation order. This decision clarified the legal process for termination and compensation in such cases, emphasizing the necessity of both parties' participation in the resolution process.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is allowed.

3. Paragraph 1 of the Tribunal decision dated 15 June 2016 is set aside. The following order is substituted:

The Tenancy is terminated as and from 15 June 2016.

4. Paragraph 2 of the Tribunal decision dated 15 June 2016 is set aside.

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.