Donnelly v Ray White Cairns Beaches & Ors [2022] QCATA 30

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Donnelly v Ray White Cairns Beaches & Ors [2022] QCATA 30 PARTIES: ROBERT JOSEPH DONNELLY (applicant) v RAY WHITE CAIRNS BEACHES, ALANNA STIRLING & PAUL STIRLING (respondents) APPLICATION NO: APL359-20 MATTER TYPE: Residential tenancy matters DELIVERED ON: 10 February 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Dr J R Forbes ORDERS: The application for leave to appeal is dismissed. CATCHWORDS: APPEAL – APPLICATION FOR LEAVE TO APPEAL – RESIDENTIAL DISPUTE – premature termination by tenant of fixed term lease – where ground relied on is excessive hardship - where notice of intention to leave not followed by an application to the tribunal to terminate the lease – where lease remained on foot – where counterclaim for overdue rent and other items – where rent for eight weeks awarded, with reasons – where difficulties of appeal against discretionary order explained - whether medical evidence might have established hardship if requisite application to tribunal had been made – where no issue as to adequacy of medical evidence was or could be raised - where no appellable error shown – where application for leave dismissed Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 31, s 61, s 142 Residential Tenancies and Rooming Accommodation Act -- 1 of 9 -- 2008 (Qld) s 310 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 House v The King (1936) 55 CLR 499 International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 Robinson v Corr [2011] QCATA 302 The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 W (an infant), In re [1971] AC 682 APPEARANCES & REPRESENTATION: 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 Introduction [1] A tenancy at Cooran on South Stradbroke Island (`the premises’) has given rise to the claim and counterclaim that constitute these proceedings. [2] The premises were the property of Alanna and Paul Stirling and were managed by the firm of Ray White Cairns Beaches (`the Agent’). For convenience sake I shall refer to the Stirlings and Ray White Beaches collectively as `RW’. [3] On 7 July 2020 the applicant Donnelly leased the premises from 13 July to 12 January 2021. Lessee vacates - exceptional hardship ground [4] On 7 August 2020 Donnelly notified RW that he would vacate the premises on 22 August 2021 on these grounds: Re-occurrence of medical condition. [U]ncertain/limited ferry services to mainland creates excessive hardship. [5] On 10 August 2020 Donnelly wrote to the Agent in part: -- 2 of 9 -- I will contest any attempt to hold me liable for rental until a new tenant is found on the grounds: (i) urgent medical treatment not available at Couran Cove. (ii) Ferry service to mainland not reliable and changed by resort operators with no advice to `outside’ tenants. (iii) With Covid 19 problems affecting everyone in Australia, finding someone willing to move to Couran Cove will be difficult, as I know you are aware. ... There will not be many willing to take on the challenge as I did. [6] Donnelly’s reference to `urgent medical treatment’ was supported by the report of a cardiac specialist, Dr Chan, dated 6 February 2019 which reads in part: Robert [Donnelly] was only able to exercise for four METS [sic] on the treadmill and he developed significant ventricular arrhythmias ... I would recommend and have organised for him to have a non-invasive Cardiac CT Angiogram to be done urgently. Hardship claim rejected [7] On 10 August 2020 the Agent, in two separate letters, replied to Donnelly’s email of the same date: I confirm receipt of your intention to lodge QCAT documents for termination of the tenancy agreement. It is disappointing that you are taking this action immediately without even allowing our office to commence marketing the property and trying to secure a new tenancy to take over your obligations. I am sorry to hear of your health issues. However, you have signed a legally binding contract to lease the property and you are obligated [sic] to fulfil this contract. Proceedings commenced [8] On 15 September 2020 Donnelly commenced these proceedings by an application1 claiming that: The bond2 be refunded in full as agent for Lessor has issued an invoice for fees relating to the break lease. Form 13, Notice of intention to leave due to excessive hardship served on Agent for Lessor on 7.8.20. [9] Annexed to that application is an affidavit sworn on 11 September 2020 which states in part: At the time of my application I was not advised by the resort management nor by the Agent ... that on 3 to 4 days a week the ferry would be at or near capacity (25 persons) and the resort management would not be restricting passenger numbers so as to allow Social Distancing guidelines. Given the reluctance of the Agent for the Lessor to accept my medical condition, I would respectfully submit that my claim of excessive hardship is sufficiently evident by the total 1 Application for minor civil dispute – residential tenancy dispute T1193/20 Southport. 2 $1060: Transcript of hearing 21 October 2020 (`T’) page 8 line 5. -- 3 of 9 -- disregard of the management for Couran Cove for the Queensland Department of Health guidelines for `social distancing’ and mask[s] when in crowded confined spaces.3 [10] RW responded with a counterclaim4 for $3543.71 for rent, cleaning, a new refrigerator and break-lease and advertising fees.5 Trial and decision [11] The trial was held on 21 October 2020. Donnelly was self-represented, and the Stirlings were represented by the Agent. The Agent’s locus standi arose from an express provision of the lease6, and the Agent was joined as a party to the proceedings. [12] Donnelly’s claim was dismissed while RW’s counter-application was allowed in part. [13] The Adjudicator made these findings: By form 13 ... 2020, Mr Donnelly informed the respondents that he intended to vacate the premises and the reasons given for that notice were reoccurrence of [a] medical condition, [and] limited ferry services to mainland creat[ing] excessive hardship. ... [W]hile it might have been true, [that] does not automatically give rise to the termination of a tenancy without an order of the Tribunal ... I note there was no [such] order ... Donnelly vacated the premises and ... [RW] ... notified [him] that they would be treating it as a break lease situation for which he would have to pay a break lease fee of one week’s rent plus GST and advertising ... [In the absence of any [medical] evidence, it appears the Agent was not willing to concede that [Donnelly’s health] brought an end to the tenancy and [therefore] the tenancy remained on foot. So one of the issues that I have to [decide] is whether or not [the] tenancy could be seen to have come to an end at any time earlier than today ... Donnelly did, in fact, give a notice of intention to leave which is provided by section 277(4) of the Residential Tenancies and Rooming Accommodation Act and he did leave at the end of that particular period. However, ... that notice could not have ended any earlier than the end of the lease in the absence of a Tribunal order. ... I see no basis for making an order ... terminating this lease. There is no evidence ... about [Donnelly’s] excessive hardship. ... I do accept, a letter in February 2019 from Dr Jonathon Chan about Mr Donnelly’s heart condition at that time but there is no current medical evidence before me to further support any finding I might make on excessive hardship. Accordingly, I am unable to make an order terminating the lease today. ... A counter-application was filed ... only ... 24 hours ... before this hearing has come on. I offered Donnelly ... an opportunity to adjourn so he could take some time to gather information to defend the counter-application. He has decided that he did not need that time ... 3 Affidavit of Robert Joseph Donnelly sworn 11 September 2020 paragraphs 6 and 17. 4 Counter-application filed 20 October 2020. 5 T page 8 lines 11-13. 6 General tenancy agreement Form 18a clause 43(2)(a). -- 4 of 9 -- [T]he counter-application seeks a total of $3543 and 71 cents. It is made up of six separate claims. The first is rent for $2195.71 ... Given that the lease, as I found, has not yet ended ... I see no reason not to award that claim. ... On the invoice for cleaning ... the claim for $350 is not supported by an entry condition report, an exit condition report or any particular details about the cleaning undertaken ... [but] I do have the evidence of a concession from Donnelly for $140 and so that is the amount that I award ... With regard to the sanitising of the property, $150 is claimed ... It is not supported by any evidence that I see. ... and that amount is struck out. There is a claim ... to replace a fridge ... purchased ... two years ago, at a cost of $415. ... According to [the caretaker] there was a smell in the fridge, it was so bad ... the fridge needed to be replaced ... That is the only evidence but is good evidence ... consistent with other emails that mention a smell throughout the unit ...I would, therefore, award a claim for the fridge but I would reduce it by $69.16 ... I would award $345.84 towards the fridge. With regard to the break lease fee and the advertising fee, [I have] found ... that this lease was not brought to an end in a way contemplated by the Act. Accordingly, therefore, there is provision under clause 7 ... of the [lease] for Donnelly to be liable for a week’s rent plus GST and ... reletting costs ... Therefore, I do find that on the counter-application, that [RW is] successful to the amount of $3114.55. The bond of $1060 currently held by the RTA should be applied to that ... with the balance of $2054.55 being payable directly by Donnelly. ... Accordingly, ... the Residential Tenancies Authority [shall] pay ... the sum of $1060 rental bond in full to [RW] and further, that [Donnelly] pay to [RW] $2054.55 within 28 days. Application for leave to appeal [14] Donnelly now applies for leave to appeal7 that decision. His case has to be distilled from his initial application8, an attached affidavit9, the application for leave10, a further affidavit11 filed on 19 November 2020, and his oral evidence on 21 October 2020. [15] Donnelly’s material contains numerous complaints and expressions of disappointment, but no specific demonstrations of appellable error by the primary judge. The vague neologism `problematic’ is freely used. Currently it expresses a range of dissent from polite uncertainty, to outright disagreement, to vehement dissent and a sentiment that the contrary view should not only be rejected, but suppressed. [16] When RW filed a late counter-application on the eve of the trial the Adjudicator was solicitous for Donnelly’s interests, repeatedly offering him an adjournment12 which he 7 QCAT Act s 142(3). 8 Filed on 15 September 2020. 9 Affidavit of Robert Joseph Donnelly sworn 11 September 2020. 10 Filed on 19 November 2020. 11 Affidavit of Robert Joseph Donnelly sworn 16 November 2020. 12 T page 3 line 29, page 6 lines 4, 18 and 41, page 7 line 3. -- 5 of 9 -- repeatedly declined. Apparently Donnelly took this remarkable decision because he thought the counterclaim would fail.13 Minor issues [17] Several of Donnelly’s complaints relate to discretionary relaxations of procedure. In the interests of expedition, simplicity and finality14 the tribunal has a wide discretion to waive procedural requirements15, as the Tenant himself accepted.16 [18] Indeed, in the interests of the Tenant, the adjudicator was prepared to treat the initial application as a late request for an `excessive hardship’ order, but Donnelly, accepting, perhaps too readily, that his medical evidence was insufficient, declined the liberal offer.17 [19] Several of Donnelly’s complaints require only brief responses. In most cases it is unnecessary to pursue a furry mammal down every fanciful burrow, because complaints and expressions of disappointment do not serve the fundamental purpose of an application for leave to appeal.18 For an application of the present kind to be fruitful, the would-be appellant must identify a reasonably arguable error of law in the primary judgment, which led to a miscarriage of justice.19 It is not appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it should receive. A scattergun volley of dissatisfactions does not amount to a viable ground of appeal. [20] The Agent’s right to be joined as a party derives from a standard clause in the tenancy agreement.20 The formal order for joinder was not opposed at the hearing.21 [21] There is no substance in Donnelly’s complaint that he was unaware of the agency arrangement.22 See Item 3 of the tenancy agreement.23 [22] Donnelly is aggrieved by the fact that RW attended the trial by telephone while he was inconvenienced by the need to make a personal appearance. Although Donnelly inquired about this facility he did not make a formal application.24 13 Affidavit of Robert Joseph Donnelly sworn 16 November 2020 paragraph 12. 14 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217; The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 at [8] and [10]. 15 See QCAT Act s 61. 16 Tenant’s affidavit sworn 10 November 2020 paragraph 9. 17 T page 15 lines 35-38. 18 Robinson v Corr [2011] QCATA 302 at [7]. 19 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18]; Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19]; International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332. 20 Clause 43(2), entitling an agent to sue or be sued, standing in the place of his principal. 21 T page 35 line 13. 22 Tenant’s affidavit sworn 10 November 2020 paragraph 13. 23 Se also the nomination of `Ray White Beaches’ in Item 3 of the notice of intention to leave signed by the Tenant on 7 August 2020. 24 Tenant’s affidavit sworn 10 November 2020 paragraph 7. The Adjudicator indicated that an application would have been granted: T page 4 line 37. -- 6 of 9 -- [23] Contrary to Donnelly’s submission, evidence of $350 for cleaning costs was tendered and accepted.25 However, that item was reduced to $140, relying on Donnelly’s admission.26 [24] The Tenant bridles at the Lessors’ claim of $150 for `sanitation’. But in fact that claim was wholly disallowed.27 [25] The absence of photographs of fish scale pollution is beside the point.28 That counterclaim was also rejected.29 A discretionary award [26] On the basis that the lease remained in force30 the adjudicator awarded RW eight weeks’ arrears of rent. Donnelly alleges that it was an error to award rent for more than four or five weeks.31 [27] That was a discretionary decision for which reasons were given.32 A `discretion’ is a judicial ability, within reason, to choose one of several available choices as appropriate in the circumstances. The adjudicator had regard to the non-extinguishment of the lease, the relative isolation of the premises, the current pandemic and the then dismal state of the rental market at Couran Cove.33 In those circumstances I consider that the discretion was properly exercised. Before a discretionary decision is disturbed, the court of appeal must be satisfied that the decision is one that no reasonable adjudicator could have made. Consequently discretionary decisions are peculiarly difficult to displace on appeal. It is not enough that the appeal court thinks that, if it had been the primary judge, it would have reached a different decision.34 Where reasonable minds may differ, a decision is not erroneous merely because one alternative has been preferred to another possible view.35 Can it fairly be said that that choice under review is `so unreasonable that no reasonable authority could ever have come to it’ on the same evidence?36 The decision in question here could not fairly or sensibly be placed in that category. [I]f logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.37 25 T page 27 line 29. 26 T page 36 line 35. 27 T page 36 line 46. 28 Tenant’s affidavit sworn 10 November 2020 paragraph 22. 29 T page 36 lines 38ff. 30 As held at T page 35 lines 27-30, page 37 lines 14-16. 31 Tenant’s affidavit sworn 10 November 2020 paragraphs 52-55. 32 T page 36 lines 14-22, 33 T page 25 lines 31-41. 34 House v The King (1936) 55 CLR 499 at 504-505. 35 In re W (an infant) [1971] AC 682 at 700. 36 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611at [130]. 37 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]. -- 7 of 9 -- Absence of s 310 application [28] Donnelly’s claim suffers the fatal defect that he made no attempt to obtain an order of the Tribunal terminating the lease. He merely served a notice alleging severe hardship and then simply walked away. Contrary to Donnelly’s submission s 310 was implicitly considered and applied.38 [29] The essence of Donnelly’s case is that for medical and public health reasons amounting to `extreme hardship’ within the meaning of section 31039 of the Residential Tenancies and Rooming Accommodation Act 2008, he was entitled to an early release from his agreement, and consequently from most if not all liability to RW. Section 310 materially provides: The tenant may apply to a tribunal for a termination order40 because the tenant would suffer excessive hardship if the agreement were not terminated. [30] Manifestly a lessor, whatever his tribulations, is not entitled to be judge in his own cause, or to take the tribunal for granted. [31] Donnelly admits41, and the adjudicator found42, that he simply failed to ask the tribunal for an early release. That is an insuperable barrier, and a challenge to the consequent decision would inevitably fail. An issue that might have been [32] If Donnelly had seen fit to accept the tribunal’s offer to treat his original application as a section 310 request, he would then, at least, have secured an adjudication of the merits of his excessive hardship claim. [33] It is true that the Adjudicator expressed an obiter view that Donnelly’s medical and other hardship evidence was insufficient. But Donnelly himself testified to crowded conditions on irregular ferry services. That is evidence, and there is a difference between `no evidence’ and evidenced deemed unpersuasive. [34] As for the medical evidence, it is not the perfunctory assertions by a GP that some courts still fear to dismiss, but a detailed diagnosis of cardiac disease by a specialist in that field. While the report was some twenty months old by the date of the trial, the cardiac specialist described Donnelly’s condition as `abnormal and of great concern’ and prescribed ongoing treatment. It is at least arguable that, as a matter of common experience, a patient in the condition described would not fully recover in 20 months, if at all. However, Donnelly seems to have acquiesced in the Agent’s professed view that the medical evidence was insufficient, and the application for leave does not make that an issue. Indeed it could not 38 T page 35 lines 4-9. 39 It is common ground that the special Covid provisions do not apply: T page 17 lines 24-43. 40 Emphasis added. 41 T page 13 line s 1-5. 42 T page 35 lines 8-9. -- 8 of 9 -- be an issue when there was (and is) no section 310 application before the Tribunal. For that imbroglio Mr Donnelly has none but himself to blame. [35] As no reasonably arguable case of appellable error has been shown, the application for leave must be dismissed. ORDER The application for leave to appeal is dismissed. -- 9 of 9 --