Walker v Next Rentals
[2014] QCATA 237
•26 August 2014
| CITATION: | Walker v Next Rentals [2014] QCATA 237 |
| PARTIES: | Tracey Walker (Applicant/Appellant) |
| v | |
| Next Rentals (Respondent) |
| APPLICATION NUMBER: | APL069 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President |
| DELIVERED ON: | 26 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | The application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where tenant in arrears at time of hearing – where Magistrate did not hear from tenant about circumstances – whether Magistrate exercised discretion under s 337(3) of the Residential Tenancies and Rooming Accommodation Act - whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 337 Pickering v McArthur [2005] QCA 294, applied |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Ms Walker was a tenant in a property managed by Next Rentals. She fell behind in her rent and had not paid the full four weeks’ bond, so Next Rentals issued a Form 11 notice to remedy breach. Ms Walker was still behind in her rent so Next Rentals issued a Form 12 notice to leave. Ms Walker was still behind in her rent so Next Rentals filed an application to terminate the tenancy agreement. On the day of the hearing, by her own admission,[1] Ms Walker was still behind on the rent. A Magistrate, sitting as a member of the tribunal, terminated the tenancy agreement and directed that a warrant of possession issue.
[1]Transcript page 1-3, lines 46-47.
Ms Walker wants to appeal that decision. She says that it was unfair to order termination when she was only “3 by 2 days” behind on her rent. She says it is an extreme result for a small breach. She says that Next Rentals’ representative had been harassing her and illegally entering the house.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[2] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[3]
[2]QCAT Act s 142(3)(a)(i).
[3][2005] QCA 294 at [3].
The Residential Tenancies and Rooming Accommodation Act 2008 (Qld) is clear. The tribunal may terminate a tenancy agreement if the lessor has established the ground of the application, that notice to leave has been given, the tenant committed the breach and, the breach justifies termination.[4] The only ground on which Ms Walker could challenge the learned Magistrate’s decision is that the breach did not justify the termination.
[4]Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 337(2).
The transcript shows that the learned Magistrate did not hear from Ms Walker about why she should not exercise her discretion in favour of the lessor.[5] The learned Magistrate was in error. In deciding whether to terminate the tenancy agreement, the learned Magistrate was entitled to have regard to, and should have considered: the seriousness of the breach; any steps Ms Walker had taken to remedy the breach; whether the breach was recurrent; any detriment to the lessor caused by the breach; whether the lessor had acted reasonably about the breach; and, any other issues she considered appropriate.[6]
[5]Transcript page 1-5, lines 1-4.
[6]Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 337(3).
According to Ms Walker, she was only 3 days’ rent in arrears. She had paid the bond and made other payments to reduce the outstanding rent. Ms Walker has filed additional evidence about her battles with the agent managing the property and her personal circumstances. Had the learned Magistrate heard this evidence, she would have been in a better position to exercise her discretion.
Even though the learned Magistrate was in error, Ms Walker has not suffered a substantial injustice. She had a difficult relationship with the agent. The tenancy agreement had only another two months to run and, in her fresh evidence, Ms Walker concedes that the owner did not want to renew the tenancy agreement. Moreover, it seems she was sub-leasing rooms to students even though the signed tenancy agreement did not allow her to do so. If the learned Magistrate had known these facts, it is likely she would have still exercised her discretion to terminate the tenancy agreement.
There is no reasonable prospect of substantive relief on appeal. Leave to appeal should be refused.
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