Tsuzuki v Shyu
[2013] QCATA 323
•12 November 2013
| CITATION: | Tsuzuki v Shyu [2013] QCATA 323 |
| PARTIES: | Dr Yoshiaki Tsuzuki (Appellant) |
| v | |
| Julie Shyu (Respondent) |
| APPLICATION NUMBER: | APL335 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 12 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Dr Tsuzuki is a student at the University of Queensland. Newly arrived from Japan, and about to start his studies, he rented a room from Ms Shyu. He signed an agreement for six months but left after only two months. Ms Shyu filed a claim for unpaid rent and the break lease fee. Two Justices of the Peace, sitting as a panel in the tribunal’s minor civil disputes jurisdiction, ordered that the bond of $720 be released to Ms Shyu and that Dr Tsuzuki pay her a further $585.14 within 14 days.
Dr Tsuzuki wants to appeal that decision. He says that the time between the notice of hearing and the hearing was too short. He says that the learned JPs did not conduct the hearing in the right way. He says that the learned JPs were biased towards Ms Shyu. He says that the learned JPs did not consider the lack of internet connection during his stay. He says that the learned JPs’ calculation of the rent owing amounts to a double count.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss 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 file shows that a registry officer posted the notice of hearing on 8 July 2013, 14 days before the hearing on 22 July 2013. That is reasonable notice for a minor civil dispute, especially as it had been to conciliation, so that the parties were aware of the issues. Dr Tsuzuki’s claim of short notice is not a ground for leave to appeal.
The learned JPs conducted the hearing by asking Ms Shyu to explain her claim, inviting Dr Tsuzuki to respond and then finishing with a reply by Ms Shyu. They explained that process to the parties before they started[5]. That is the appropriate way to conduct a hearing.
[5] Transcript page 1-3.
Bias is a very serious allegation. The test is[6]:
… if a fair-minded lay bystander might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the issues that he or she must decide.
[6] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
I’ve read the transcript of the hearing. The learned JPs took care to ask Dr Tsuzuki if he understood the process. They asked whether he needed an interpreter. The learned JPs thoughtfully and carefully complied with their obligations to ensure a fair hearing. I can find no evidence of bias.
The learned JPs did consider Dr Tsuzuki’s internet difficulties when they made their decision. They deducted $10 per week from the rent for the entire period of Dr Tsuzuki’s stay[7]. On any view, this was a generous deduction for a temporary loss of internet service.
[7] Reasons for decision page 2, lines 44-45.
It is apparent from his submissions that Dr Tsuzuki did not understand the learned JPs’ calculation. So there is no misunderstanding in the future, I will explain the learned JPs’ calculation again:
a) Dr Tsuzuki paid rent up to 22 March 2013.
b) Dr Tsuzuki signed an agreement for 6 months. He did not stay for 6 months. When he left, he was in breach of the agreement.
c) Because he was in breach of the agreement, Dr Tsuzuki was responsible for the rent until Ms Shyu found a new tenant. A new tenant moved in on 7 May 2013. Therefore, Dr Tsuzuki must pay rent from 22 March to 7 May 2013. The learned JPs calculated that amount as $1,157.14.
d) Under the tenancy agreement, Ms Shyu was also entitled to a break lease fee. Although this fee is the same as one week’s rent, it is a pre-estimate of the cost of finding a new tenant. It is intended to cover things like advertising and the costs associated with finding a new tenant. The learned JPs added that amount to the unpaid rent.
e) The learned JPs also added the filing fee of $98.
f) The total Dr Tsuzuki owed was:
Damages for breach of agreement (rent) $1,157.14 Break lease fee 180.00 Filing fee 98.00 Total $1,435.14 g) The learned JPs then deducted $130 for the loss of internet, making the total Dr Tsuzuki owed Ms Shyu $1,305.14.
h) They ordered the Residential Tenancies Authority pay the bond to Ms Shyu. So the learned JPs deducted the bond of $750 from the amount Dr Tsuzuki had to pay Ms Shyu. That left a balance of $585.14 which Dr Tsuzuki has to pay directly to Ms Shyu.
No doubt, this has been an unfortunate experience for Dr Tsuzuki. However, I am satisfied that the learned JPs applied the law correctly.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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