Zeith v Tego Property

[2014] QCATA 111

CITATION: Zeith v Tego Property [2014] QCATA 111

PARTIES:	Christine Anne Zieth Robert Malcolm Zieth (Applicants/Appellants)
v
Tego Property (Respondent)

APPLICATION NUMBER: APL101-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe, OAM

DELIVERED ON: 5 May 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where tenancy terminated by the tribunal – where tribunal ordered compensation for rent not received – where tribunal ordered compensation for filing fee - whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 83(b)

Pickering v McArthur [2005] QCA 294

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

1. Mr and Mrs Zieth vacated their rented home under a warrant of possession on 20 December 2013. The agent, Tego Property, then filed an application for compensation, including rent for the period the home was vacant after Mr and Mrs Zieth left. The tribunal ordered Mr and Mrs Zieth pay Tego Property $1,917.04.

2. Mr and Mrs Zieth want to appeal that decision. They say that, because the tenancy agreement was terminated, the agent has no right to claim for rent. They say the learned Adjudicator should not have made them pay court attendance fees because they, too, attended court and they did not get attendance fees. They say the learned Adjudicator should not have made them pay filing fees because they, too, paid filing fees.

3. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:

   There are numerous authorities, in varying language but with unvarying emphasis, that 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.

   [1][2005] QCA 294 at [3].

4. Mr and Mrs Zieth failed to file submissions as required by the appeal tribunal’s directions of 6 March 2014. It was open for me simply to dismiss the application for leave to appeal for non-compliance. I will, however, give short reasons why this application for leave to appeal must fail.

5. Mr and Mrs Zieth do not understand their obligations under the tenancy agreement. Even though the tribunal terminated their tenancy, because they breached the tenancy agreement, the lessor was entitled to claim damages for breach. Damages can include the rent that Mr and Mrs Zieth should have paid for the balance of the tenancy agreement or until the lessor found a new tenant.

6. Tego Property claimed $1,014.30 for rent not received. The learned Adjudicator did not accept that the lessor had mitigated its loss sufficiently, so he reduced the amount to $507. The evidence can support the learned Adjudicator’s finding and I can find no compelling reason to come to a different view.

7. The learned Adjudicator did not order that Mr and Mrs Zieth pay court attendance fees, even though Tego Property claimed this amount. He did order that Mr and Mrs Zieth pay the fee for lodging the warrant of possession and the filing fee for Tego Property’s application. The learned Adjudicator was entitled to order payment of the filing fee[2] because Tego Property was substantially successful in its claim. The learned Adjudicator’s order was unexceptional.

   [2]Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 83(b).

1. Mr and Mrs Zieth have not demonstrated any error by the learned Adjudicator. Leave to appeal should be refused.