Wawryk v Magner - [2014] QCATA 215

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
Lovell v Lovell (1950) 81 CLR 513
Pickering v McArthur [2005] QCA 294
Lewington v Lunt [2014] QCATA 341

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…

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.

Continue reading Wawryk v Magner

Details

AGLC: Wawryk v Magner [2014] QCATA 215
Case: [2014] QCATA 215
Decision Date: 4 August 2014

CaseChat Overview and Summary

The case of Wawryk v Magner involved a dispute between a tenant and a lessor over the termination of a residential tenancy agreement. The tenant, Wawryk, had provided an informal notice of intention to vacate the premises, but the formal termination did not occur until several months later. During this period, the lessor, Magner, advertised the tenancy for a higher rent. After the formal termination, Magner reduced the rent for a prospective tenant but only after the original tenancy had ended. Wawryk argued that Magner failed to mitigate her loss and sought leave to appeal the decision of the lower court.

The primary legal issue the court had to decide was whether Magner had failed to mitigate her loss by not advertising the tenancy at a reduced rent before the formal termination. The court also needed to determine if there were grounds for granting leave to appeal the lower court's decision. The court examined whether the lessor had acted reasonably in managing the property and if the tenant's arguments were sufficient to warrant an appeal.

In delivering the judgment, the court found that the lessor had acted within a reasonable timeframe in reducing the rent for a prospective tenant after the formal termination of the tenancy. The court held that there was no evidence to suggest that Magner had acted unreasonably or failed to mitigate her loss by advertising the tenancy at a reduced rent. Consequently, the court concluded that there were no grounds for granting leave to appeal the lower court's decision. The appeal was dismissed, and leave to appeal was refused.

Orders

Orders of the court

1. Leave to appeal refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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