Wawryk v Magner
[2014] QCATA 215
•4 August 2014
| CITATION: | Wawryk v Magner [2014] QCATA 215 |
| PARTIES: | Nikki Wawryk (Applicant/Appellant) |
| V | |
| Michael Magner (Respondent) |
| APPLICATION NUMBER: | APL261 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 4 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where informal notice of intention to vacate – where actual termination months later – where lessor advertised tenancy before formal termination at higher rent – where lessor reduce rent for prospective tenant only after formal termination – whether lessor failed to mitigate loss - whether grounds for leave to appeal House v The King (1936) 55 CLR 499 |
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 Wawryk was Mr Magner’s tenant, paying $400 per week. Ms Wawryk’s tenancy was due to expire on 2 March 2014 but, by email dated 30 September 2013, she advised Mr Magner that she was going to move back in with her partner “gradually over the next few months”.
Mr Magner contacted a property agent the next week. The agent advised that the market rent for the property was between $420 and $440 per week. Mr Magner appointed the agent to find a new tenant on 2 November 2013.
Ms Wawryk vacated the property on 21 October 2013. She returned one of two sets of keys on 30 October 2013.
On 13 January 2014, Ms Wawryk issued a notice of intention to leave without grounds, giving 14 days notice. She paid rent up to 25 January 2014. On 4 February 2014, Ms Wawryk posted her second set of keys to the agent.
A new tenant moved in on 20 March 2014.
Mr Magner filed a claim for rent and the cost of rekeying the tenancy. Two Justices of the Peace ordered that Ms Wawryk pay Mr Magner $1,600 arrears of rent, $514 for rent after termination and the costs of rekeying.
Ms Wawryk wants to appeal that decision. She says the learned Justices erred in not requiring Mr Magner to mitigate his loss in circumstances where he knew that Ms Wawryk intended to breach her lease. She says that Mr Magner did not comply with his duty to mitigate his loss.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] 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.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3] per Keane JA.
Ms Wawryk submits that the learned Justices found that Mr Magner did not mitigate his loss. That submission does not fit with the transcript. The learned Justices found:
That the applicant would get about the process of getting a tenant to shift into the premises…but he wasn’t allowed to use too much due speed, because [Ms Wawryk] hadn’t left[3]
[3]Transcript page 1-21 lines 33-35.
The learned Justices also found[4] that Mr Magner did mitigate his loss by attending to repairs that were Ms Wawryk’s responsibility.
[4]Transcript page 1-22 lines 14-16.
Ms Wawryk field copies of a number of tribunal cases dealing with mitigation in support of her application for leave to appeal. In almost all of those cases, the tribunal dealt with a failure to mitigate after the breach. They do not assist Ms Wawryk’s application for leave to appeal. The appeal tribunal has already observed the Common Law position in relation to an anticipatory breach:[5] a claimant need not take steps to mitigate a loss until a wrong is committed against the claimant.
[5]Lewington v Lunt [2014] QCATA 341 at [8].
Ms Wawryk submissions accept that position in part. She submits that Mr Magner’s duty to mitigate his loss was informed by the fact that vacant possession occurred on 30 October 2013 and so he should have been actively searching for a new tenant from that date.
Ms Wawryk’s submission is in error. Vacant possession did not occur on 30 October 2013. By keeping the keys, and not issuing a notice of intention to leave until late January 2014, Ms Wawryk was still the tenant, entitled to possession and, in fact, still in possession until February 2014. Until that time, Mr Magner had no right to sign a new tenancy agreement.
Ms Wawryk has pointed to Mr Magner’s alleged failure to mitigate prior to vacant possession but she has not provided any evidence to support a submission that Mr Magner failed to mitigate his loss after he obtained possession in February 2014. Mr Magner obtained possession in late January 2014. He reduced the asking rent back to $400 per week in early February 2014, shortly after he received vacant possession. He obtained a tenant about six weeks later. The tribunal found that Mr Magner had mitigated his loss.
The Appeal Tribunal will not interfere with an exercise of discretion unless it can be shown that the learned Justices acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters[6]. Just because the Appeal Tribunal might have exercised the discretion differently, is not a basis for changing the decision: it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion[7].
[6]House v The King (1936) 55 CLR 499, at 504.
[7]Lovell v Lovell (1950) 81 CLR 513.
There is nothing in Ms Wawryk’s submissions that persuade me the learned Justices were in error in the exercise of their discretion.
Ms Wawryk submits that she should not have to pay the costs of rekeying the tenancy for two reasons. Firstly, she submits that she returned the keys. Secondly, she submits that she offered a cheaper alternative, which Mr Magner did not accept.
The evidence was that Ms Wawryk posted the keys back but neither Mr Magner nor the agent received them. Ms Wawryk had the obligation to return the keys. She must bear the risks inherent in posting the keys, rather than delivering them personally.
Mr Magner told the learned Justices that Ms Wawryk’s offer of labour to replace the locks was not acceptable[8]. He gave cogent reasons why her offer was not acceptable. The learned Justices were entitled to find that Mr Magner appropriately handled his loss and did not fail to mitigate it.
[8]Transcript page 1-15 lines 4 – 37.
There is no reasonably arguable case that the learned Justices were in error. Leave to appeal should be refused.
0
4
0