Dodds & Anor v Francis T/A Vesta Property Management Pty Ltd [2022] QCATA 28

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dodds & Anor v Francis T/A Vesta Property Management Pty Ltd [2022] QCATA 28 PARTIES: HANNAH JANE DODDS (applicant/appellant) SEAN PHILIP LEDDY (applicant/appellant) v MARK FRANCIS T/AS VESTA PROPERTY MANAGEMENT PTY LTD (respondent) APPLICATION NO/S: APL302–20 ORIGINATING APPLICATION NO/S: MCDT1796-20 Brisbane MATTER TYPE: Appeals DELIVERED ON: 2 March 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: Application for leave to appeal refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where tenants gave notice of intention to leave and vacated the rental premises – where the tenants later applied to terminate the tenancy on the grounds of excessive hardship due to Covid-19 – where no error was identified in the Adjudicator’s decision on appeal – where the tenants’ application for leave to appeal constituted an attempt at a second hearing rather than appeal – where the original action was flawed from outset on the basis that the application for termination was made after the tenancy had already been terminated Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 277 Residential Tenancies and Rooming Accommodation (COVID-19 Emergency Response) Regulation 2020 (Qld) Pickering v McArthur [2005] QCA 294 APPEARANCES & This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and -- 1 of 3 -- 2 REPRESENTATION: Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] Ms Dodds and Mr Leddy (collectively “the tenants”) were tenants of a residential rental property in Brisbane, and the respondent (“the agent”) was the lessor’s real estate agent. [2] The tenancy was for a fixed term for the period 28 January 2020 to 27 January 2021. [3] The tenants served a form 13 Notice of Intention to Leave on the agent on 12 May 2020 advising they intended to vacate the property on 12 June 2020, and indeed they left the property on 13 June 2020. [4] The agent commenced proceedings against the tenants to recover certain items of compensation and by separate action the tenants filed an application for minor civil dispute – residential tenancy dispute in the Tribunal seeking an order terminating the tenancy on the grounds of excessive hardship. Reference was made to Covid-19 in the application for termination. [5] The application for termination came on for hearing before an Adjudicator who dismissed it on the grounds no evidence save an assertion by Ms Dodds that she was entitled to JobKeeper payments had been led to persuade the Tribunal that the tenants qualified under the Residential Tenancies and Rooming Accommodation (COVID-19 Emergency Response) Regulation 2020 (Qld) as a person suffering excessive hardship because of the Covid-19 emergency.1 [6] The tenants wish to appeal that decision. [7] Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.2 [8] Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.3 [9] There is no error made by the Adjudicator to be corrected identified in the application for leave to appeal. [10] Rather the tenants try to run their case a second time in the Appeal Tribunal, this time with evidence in support of their claim made below. In Part C of the application for leave to appeal under Grounds of Appeal the tenants say this: During our telephone hearing on 1st September it was noted that we had not provided any financial evidence to support our claim for excessive hardship due to Covid-19. Hannah’s employment contract was not renewed beyond 12 April, 2020 due to Covid 19. As per 3(B) rent payable is 30% or more of combined income. 1 Section 6(3). 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i) (‘QCAT Act’). 3 Pickering v McArthur [2005] QCA 294. -- 2 of 3 -- 3 [11] The tenants attach to the application for leave to appeal certain documents they say is evidence in support of their claim. None of the documentation attached was handed up to the Adjudicator on the day of hearing. All of the attachments represent fresh evidence sought to be adduced for the first time on appeal. [12] The Appeal Tribunal gave directions on 8 December 2020 requiring any party seeking leave to rely upon fresh evidence to make an application for leave to rely upon such and to provide a copy of the application to the other party explaining why the fresh evidence was not available to the tribunal below, why the fresh evidence is important and why the fresh evidence should be accepted in the appeal proceedings. [13] There has been no application by the tenants for leave to adduce this fresh evidence. [14] As such there is no evidence available for consideration in support of their claim that they have suffered excessive hardship because of the Covid-19 emergency. [15] Regardless of the foregoing, their claim was always fatally flawed and could not succeed. [16] The tenants served a Form 13 Notice of Intention to Leave on the agent on 12 May 2020 and left the property on 13 June 2020. [17] There are limited ways in which a residential tenancy agreement can be terminated. They are set out in s 277 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). One of them is where a tenant gives a notice of intention to leave the premises to the lessor and hands over vacant possession of the premises on or after the handover day nominated. That occurred here, the Form 13 given on 12 May 2020 and the tenancy ending after the handover day when they vacated on 13 June 2020. [18] The application for termination on the grounds of excessive hardship was filed by them after that on 24 July 2020. When they filed that application there was no residential tenancy agreement extant to be terminated. Indeed the property had been relet to other tenants by then. [19] Leave to appeal is refused. -- 3 of 3 --