Anlezark v Realway Property [2017] QCATA 134

CITATION: Anlezark v Realway Property [2017] QCATA 134 PARTIES: JUSTIN ANLEZARK (Applicant/Appellant) v REALWAY PROPERTY (Respondent) APPLICATION NUMBER: APL011-17 MATTER TYPE: Application and Appeals HEARING DATE: 22 November 2017 HEARD AT: Brisbane DECISION OF: Justice Carmody DELIVERED ON: 30 November 2017 DELIVERED AT: Brisbane ORDERS MADE: THE APPEAL TRIBUNAL ORDERS THAT: 1. The application for leave to appeal or appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – where the owner had requested the tenant vacate before the end of the fixed term agreement – where the applicant initially refused – where the owner found alternative accommodation – where the tenant had an honest belief the owner still required vacant possession – where the tenant broke the lease before the end of the tenancy – where the tribunal found there was no agreement allowing the tenant to terminate early without consequence – where the applicant seeks to raise new issues on appeal – where the appeal tribunal finds no appellable error Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 331(2)(g) APPEARANCES and REPRESENTATION (if any): APPLICANT Self represented RESPONDENT Amy Ward for Realway Property -- 1 of 3 -- 2 REASONS FOR DECISION [1] The applicant was one of three co-tenants (with his mother and brother) of the rented premises managed by the respondents for the owner. The end date under the tenancy agreement was 12 August 2016. [2] The applicant’s mother and brother moved out in in January 2016, and the applicant vacated on 20 June 2016 when he had found affordable alternative premises for a stated ground, but could have chosen to give 14 days’ notice of his intention to leave on 23 June 2016 without giving any reason at all. In either case he would be liable for compensation rent until new tenants move in or the end date (which ever happens first).1 [3] The premises were relet from 21 July 2016. Subject to the duty to mitigate, the maximum amount the landlord was entitled to claim was $1757.15 (or $410 per week rent for 30 days). [4] When the applicant was asked by the tribunal at T1-5:5 “why wouldn’t you have to pay that rent … given that you’ve brought about an early termination of a fixed term agreement?”, he replied, “(t)he early termination came around the owners wanting possession of their property and the family and I moving out to accommodate the owners moving back into their property.” The context [5] The owners had asked the tenants to vacate early on or about 22 October 2015, and they refused in November 2015. The owners arranged alternative accommodation for when they returned from overseas on 13 January 2016. [6] The applicant says that he was reassured at a routine inspection on 19 February 2016 that moving out early if he found a place to move into “may not be an issue” or “shouldn’t be a problem” and “she’s got to talk to the owners”.2 When he didn’t hear anything from her to the contrary after that he “thought the owners still wanted possession of their property and I could still go forward and find something for me that I could afford to move into” without being breached or blacklisted.3 [7] He said if he had been told that the owners were committed elsewhere and did not want to take possession before the end date he would have stayed put4 but wasn’t told the owners’ circumstances had changed until 2 June 2016. [8] On 9 June 2016 the applicant issued a notice to remedy breach (Form 11) to rectify maintenance issues, and a notice of intention to leave (Form 13), 1 See RTRAA s 331(2)(g). 2 T:1-9:5-10. 3 T:1-9:5-10. 4 T:1-9:45. -- 2 of 3 -- 3 citing as the ground the owners’ request for possession once he had found other suitable accommodation. [9] The tribunal allowed the claim on the basis of a finding that even if the applicant honestly believed otherwise, there was no agreement for early termination in June 2016 based on the October 2015 request or the “reassurances” in February 2016. [10] The leave application is based on 3 grounds of failure to consider relevant information. [11] The first complaint relates to the finding of fact that there was no agreement or implied understanding based on the agent’s representations that early termination would not be treated as a break lease. [12] That finding was open on the respondent’s own case as presented and consistent with emails between the parties. [13] The second suggested failure relates to the effect of the Form 11. This was not an issue the applicant relied on at the hearing. There is no appellable error in failing to consider material not raised. In any case, the Form 11 was served after the applicant was told the owners intended to enforce the tenancy agreement and the Form 13 was issued on a different ground before the compliance date and stated a handover date of 20 June 2016. [14] Finally, the applicant says, in effect, that it is not just and equitable to order him to pay a full month’s rent when the owner used some of that time to refurbish the property thereby getting a windfall benefit not taken into account. [15] I initially thought that, despite not being argued for tactical reasons at first instance, leave may be warranted to remedy the apparent injustice of this, but on reflection I have decided otherwise, because:  there is no evidence of the value the owners derived from the opportunity the tenant’s early departure presented;  the owners have not had any notice of this issue prior to the hearing;  the agent says that only minor touch-up work was done for the purpose of putting the property in a more rentable condition to mitigate loss of income;  the tenant was potentially saved an additional two weeks’ rent ($820) up to the end date of 12 August 2016 by the work being done and they had waived advertising and other legitimate reletting costs anyway. [16] For these reasons the application for leave to appeal or appeal is refused. -- 3 of 3 --