CCH Enterprises Pty Ltd t/as Belle Property Management v Roberts [2020] QCATA 67

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: CCH Enterprises Pty Ltd t/as Belle Property Management v Roberts [2020] QCATA 67 PARTIES: CCH ENTERPRISES PTY LTD T/AS BELLE PROPERTY MANAGEMENT (appellant) v NATHAN ROBERTS LAUREN ROBERTS (respondents) APPLICATION NO/S: APL276-19 ORIGINATING APPLICATION NO/S: MCDT226/19 MATTER TYPE: Appeals DELIVERED ON: 5 May 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Hughes ORDERS: 1. The application for miscellaneous matters filed by the applicant on 20 January 2020 is refused. 2. Leave to appeal is refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – interference with findings of Tribunal below – functions of appellate tribunal – where no valid ground of appeal raised – where finding open on evidence – where no reasonably arguable case of Tribunal in error – where no reasonable prospect of substantive relief on appeal RESIDENTIAL TENANCY – APPLICATION FOR TERMINATION OF LEASE – where residential tenancy terminated for excessive hardship – where tenant pregnant and employment contract ended – where Tribunal has broad discretionary power – where Tribunal may consider relevant factors – where decision involves question of fact – where no appellable error shown Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 13 -- 1 of 6 -- 4 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Elshohna v Property Pursuit [2019] QCATA 57 Fox v Percy (2003) 214 CLR 118 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Hayward v LJ Hooker Longreach [2013] QCATA 221 House v The King (1936) 55 CLR 499 Igrowth Investments Pty Ltd v Brown & Anor [2018] QCATA 41 In re W (an infant) [1971] AC 682 Leddicoat v Walker [2010] QCATA 18 Lovell v Lovell (1950) 81 CLR 513 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Minister for Immigration and Citizenship v SZDMS & Anor (2010) 240 CLR 611 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Savari v Rent My Property Pty Ltd [2017] QCATA 14 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Terera & Anor v Clifford [2017] QCA 181 Your Future Strategy Pty Ltd v Rosenfield [2019] QCATA 95 REPRESENTATION & APPEARANCES: Applicant: S Thomas, Head of Operations Respondent: Self-represented REASONS FOR DECISION What is this application about? [1] On 9 September 2019, the Tribunal terminated the tenancy of Nathan Roberts and Lauren Roberts on the grounds of excessive hardship.1 The Tribunal at first instance relevantly held: The applicants have referred to a number of matters, which, they say, base that excessive hardship, including the – the health of one of the applicants – and that is my description – the – but also a change in – there is a number of matters 1 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 310, s 343. -- 2 of 6 -- 4 filed, including a change in professional circumstances, change in matters relating to a property that they are moving into… So I have taken into account all of those circumstances. There has been significant notice period as to their departure… In all of those circumstances, I will order a termination on the ground of excessive hardship, and, particularly I note the personal health circumstances of one of the applicants and that – that is, I find, a sufficient basis for the finding of excessive hardship on that – that basis alone.2 [2] CCH Enterprises Pty Ltd t/as Belle Property Management is managing agent for the property and has applied for leave to appeal that decision. [3] Belle filed an application to file fresh evidence.3 The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce fresh evidence must satisfy three tests:4 (a) Could the parties have obtained the evidence with reasonable diligence for use at the trial? (b) If allowed, would the evidence probably have an important impact on the result of the case? (c) Is the evidence credible? [4] Belle’s application sought to adduce submissions in reply to Mr and Mrs Roberts’s submissions and a tenancy agreement with new tenants. The submissions in reply are not evidence and therefore do not form a proper basis of an application to file fresh evidence. In any event, I address them below. The new tenancy agreement would not have an important impact on the result because it is not relevant to determining whether the tenants have suffered excessive hardship. The application to present fresh evidence is refused and the appeal must proceed on the basis of the evidence before the learned Member. [5] In determining whether to grant leave, the Tribunal will consider established principles including: (a) whether there is a reasonably arguable case of error in the primary decision;5 (b) whether there is a reasonable prospect that the appellant will obtain substantive relief;6 (c) whether leave is needed to correct a substantial injustice caused by some error;7 and 2 Transcript, page 1-6, lines 6-20. 3 Application for miscellaneous matters filed 20 January 2020. 4 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. 5 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 6 Cachia v Grech [2009] NSWCA 232. 7 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. -- 3 of 6 -- 4 (d) whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.8 [6] The Tribunal had a broad discretionary power to lawfully terminate the lease agreement if the ground of excessive hardship was made out.9 The Appeal Tribunal will not interfere with the exercise of that discretion unless it can be shown that the Tribunal acted on a wrong principle, or made mistakes of fact affecting the decision, or was influenced by irrelevant matters.10 Just because the Appeal Tribunal might have exercised the discretion differently is not a basis to change the decision; it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion.11 [7] Belle cited prior decisions of the Appeal Tribunal to support a submission that the tenant must point to circumstances outside their control to establish excessive hardship.12 However, none of the authorities propounds any legal principle to fetter the exercise of the Tribunal’s discretion. The gravamen for Belle’s submission is perhaps best adumbrated in Elshohna v Property Pursuit:13 Usually, if not invariably, Queensland cases in favour of the tenant involve parties whose position is passive – the hardship is involuntary, rather than a consequence of a deliberately chosen course of action. Classic cases turn on illness or injury, as in Leddicoat v Walker, or financial difficulties beyond the tenant’s control. … The judicial extinguishment of a contract is a serious matter, and the interests of the other party, as well as those of the applicant, cannot be ignored. There is a presumption that terms of tenancy agreements must be adhered to by the parties.14 [8] However, Elshohna does not fetter the discretion but cites relevant factors that the Tribunal may consider in determining excessive hardship. The Tribunal was not in error to consider the circumstances before it and having done so, to then exercise its discretion broadly. [9] Here, the learned Member was faced with the uncontroversial evidence that Mrs Roberts was pregnant, her temporary employment contract had ended and the ability of Mr and Mrs Roberts to pay their mortgage had accordingly declined. The learned Member was entitled to accept this evidence and exercise his discretion accordingly. [10] Belle submitted that no evidence was given of the reduction in income caused by Mrs Roberts’s pregnancy. However, the appeal process is not an opportunity for a party to 8 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580. 9 Leddicoat v Walker [2010] QCATA 18, [14], [15]. 10 House v The King (1936) 55 CLR 499, 504. 11 Lovell v Lovell (1950) 81 CLR 513. 12 Hayward v LJ Hooker Longreach [2013] QCATA 221; Elshohna v Property Pursuit [2019] QCATA 57; Your Future Strategy Pty Ltd v Rosenfield [2019] QCATA 95. 13 [2019] QCATA 57. 14 Ibid, [10], [13], citing Savari v Rent My Property Pty Ltd [2017] QCATA 14 and Igrowth Investments Pty Ltd v Brown & Anor [2018] QCATA 41. -- 4 of 6 -- 4 again present their case.15 It is the means to correct an error by the Tribunal that decided the proceeding.16 As the learned Member in Elshohna went on to say: The prerequisite of leave to appeal indicates a legislative intent that primary decisions of the tribunal shall normally be final. An application for leave to appeal is not an opportunity to reargue the case anew. It is not an open licence to ‘second guess’ the original decision. The question is whether the would-be appellant presents a reasonable argument that legal error or irrationality substantially affected the primary decision. The question is not whether the appeal tribunal, in the shoes of the decision-maker, would necessarily have reached the same conclusion. Exceptionally, leave may be granted to examine a question of public importance, but few minor civil disputes meet that description. It is not an 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 deserves. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available. Where reasonable minds may differ, a decision is not legally erroneous simply because one conclusion has been preferred to another possible view.17 [11] Belle also submitted that whether the lessor failed to mitigate is not relevant. That submission is correct.18 The learned Member was therefore also correct in not considering it when making his finding. [12] The minor civil disputes jurisdiction requires the Tribunal to deal with matters fairly, quickly and economically.19 In doing so, the Tribunal must make orders that it considers fair and equitable to resolve the dispute.20 Although the learned Member did not say so in his reasons for decision, he clearly gave consideration to the fair and equitable outcome in considering whether to terminate the lease.21 [13] Nothing in the material or the transcript persuades the Appeal Tribunal that the learned Member’s finding of excessive hardship was not open to the Tribunal. The Tribunal’s finding that Mr and Mrs Roberts would suffer excessive hardship if the tenancy was not terminated was based on the learned Member’s assessment of the facts as put before him and having considered those facts, he concluded that Mr and Mrs Roberts had made out a case for excessive hardship:22 … each claim for relief on the ground of excessive hardship under [the Act] will require consideration of the particular circumstances in each case. That approach sits comfortably with the presumed intention of the legislature: it is readily foreseeable that, for example, even a minor but debilitating physical 15 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39, [9]. 16 Ibid. 17 Elshohna v Property Pursuit [2019] QCATA 57, [18], citing Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, Fox v Percy (2003) 214 CLR 118, 125-6, Minister for Immigration and Citizenship v SZDMS & Anor (2010) 240 CLR 611, [131], In re W (an infant) [1971] AC 682, 700, Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1025, and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 151. 18 Leddicoat v Walker [2010] QCATA 18, [21], applied in Hayward v LJ Hooker Longreach [2013] QCATA 221, [37]. 19 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4. 20 Ibid, s 13. 21 Your Future Strategy Pty Ltd v Rosenfield [2019] QCATA 95, [16]. 22 Ibid, [17]. -- 5 of 6 -- 4 injury or ailment could make some premises effectively uninhabitable for the disabled tenant. The phrase is also to be construed and applied in light of section 343 of [the Act], which plainly confers a broad discretionary power to lawfully terminate a lease agreement if the ground of excessive hardship is made out.23 [14] The Tribunal’s conclusion was open on the evidence and it is not for the Appeal Tribunal to interfere with that finding. Should the Appeal Tribunal grant leave to appeal? [15] Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.24 A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.25 An application for leave to appeal is not, and should not be an attempt to reargue a party’s case at the initial hearing.26 [16] The question of whether or not a tenant is experiencing excessive hardship in the circumstances is a question of fact and not one of law.27 Having read the transcript and considered the evidence, I find nothing to indicate that the Tribunal acted on a wrong principle, or made mistakes of fact affecting its decision, or was influenced by irrelevant matters. The evidence was capable of supporting the Tribunal’s conclusions. The Tribunal’s decision reflected a proper exercise of its discretion. [17] Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.28 A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.29 [18] There is no question of general importance for the Appeal Tribunal to determine. There is no reasonably arguable case that the Tribunal was in error.30 There is no reasonable prospect of substantive relief on appeal.31 There is no evidence that a substantial injustice will result if leave is not granted.32 [19] Leave to appeal is refused. 23 Leddicoat v Walker [2010] QCATA 18, [14], [15]. 24 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J). 25 Ibid. 26 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39. 27 Your Future Strategy Pty Ltd v Rosenfield [2019] QCATA 95, [18]. 28 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J). 29 Ibid. 30 Terera & Anor v Clifford [2017] QCA 181. 31 Ibid. 32 Ibid. -- 6 of 6 --