Wise v Ray White Nerang

[2021] QCATA 71

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Wise v Ray White Nerang [2021] QCATA 71

PARTIES:

CARLY WISE

(appellant)

v

RAY WHITE NERANG

(respondent)

APPLICATION NO/S:

APL093-20

ORIGINATING APPLICATION NO/S:

MCDT114/20 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

16 June 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

1.   Leave to rely on fresh evidence is refused.

2.   Leave to appeal is refused.  This means that the appeal fails.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – where tenant brought a counter application which was partially successful before the Adjudicator – where the tenant appeals relying on a Notice of Unresolved Dispute as ‘fresh’ evidence – whether any reasonably arguable grounds of appeal

Residential Tenancies and Rooming Accommodation Act 2008 (Qld)

Gould v Mazheiko & Gill [2020] QCATA 10

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Officers of Ray White Nerang

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. An Adjudicator decided a dispute between a tenant Carly Wise and a lessor represented by the property managers Ray White Nerang, about the financial consequences of matters arising during and on termination of, the tenancy.  The tenant now appeals against the decision.

2. The tenant had a fixed term tenancy for 12 months but she left after nine months, having served a notice of intention to leave (Form 13) purportedly ‘with grounds’.  At the time of her departure some rent was unpaid so this also had to be taken into account.  The tenant brought a counter application in which she claimed compensation and rent reduction under a number of heads over the whole period of the tenancy.  Although the Residential Tenancies Authority had paid out the rental bond in error, both parties sought a formal order as to how it should be divided in the light of their respective claims.

3. The application and counter application involved a number of legal issues governed by the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). On Ray White’s case the issues were the circumstances in which a tenant could serve an effective Form 13 before the expiry of the tenancy agreement and rely on it to terminate the tenancy, and therefore not be breaking the lease on leaving early.[1]  Another was a question of mitigation of the reletting period should the tenant have broken the lease.[2]  On the tenant’s counter application there were issues about the need to make a dispute resolution request to the Residential Tenancies Authority about an issue and the conciliation process having ended, before being able to apply to the tribunal about the issue.[3]  There were questions about the six month time limit to make the dispute resolution request after becoming aware of a breach for which compensation was sought.[4]  And questions about the correct timing and justification for a claim for reduction of rent over a period of time,[5] bearing in mind…