Di Lallo v Ray White Bulimba [2017] QCATA 136

CITATION: Di Lallo v Ray White Bulimba [2017] QCATA 136 PARTIES: David Di Lallo (Appellant) v Ray White Bulimba (Respondent) APPLICATION NUMBER: APL046-17 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 29 November 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – where tenant ended tenancy early – where claim for loss of rent – whether lessor mitigated loss – where no evidence by former agent – where evidence capable of supporting Tribunal’s conclusions – whether grounds for leave to appeal APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – OTHER MATTERS – OTHER CASES – where Tribunal found lessor failed to take steps to mitigate loss – where Tribunal awarded less than half amount claimed – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 143 Residential Tenancies and Rooming -- 1 of 5 -- 2 Accommodation Act 2008 (Qld), s 362 Bertelsen v Czdel [2014] QCATA 165 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Cachia v Grech [2009] NSWCA 232 Chambers v Jobling (1986) 7 NSWLR 1 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 House v The King (1936) 55 CLR 499 Lovell v Lovell (1950) 81 CLR 513 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152 QUYPD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Zak v Applegate [2011] QCATA 247 APPEARANCES: This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION What is this appeal about? [1] David Di Lallo rented a house on a fixed term lease of 12 months expiring on 13 January 2017. His business fell on hard times and on 17 June 2016, he informed the Agent at the time that he would be leaving on 24 June 2016.1 He then signed an ‘Agreement to Terminate Fixed Term Tenancy’ on 21 June 2016. A new tenant rented the house from 24 September 2016 [2] The current Agent, Ray White Bulimba, filed an application for breaching the tenancy, seeking compensation of $7,531.71 including $6,505.71 for lost rent. [3] An Adjudicator ordered that Mr Di Lallo pay $3,007.42 including lost rent of $2,431.42, break lease fee of $506.00 and re-advertising fee of $70.00. [4] Mr Di Lallo wants to appeal that decision. He agrees that he should pay a break lease fee of $506.00 and re-advertising fee of $70.00, but says that he should only pay loss of rent for one week of $460.00. He claims that Ray White did not manage the property until August 2016 and therefore did not have information on any steps by the former Agent to mitigate loss. 1 Notice of intention to leave dated 17 June 2016. -- 2 of 5 -- 3 He says that no evidence of mitigation was provided at the hearing and that the owner did not attempt to find a new tenant until August 2016. [5] Because this is an appeal from a minor civil dispute, leave is required.2 [6] 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,3 b) whether there is a reasonable prospect that the appellant will obtain substantive relief,4 c) whether leave is needed to correct a substantial injustice caused by some error,5 and d) whether there is a question of general importance upon which further argument, and a decision of the Appeals Tribunal, would be to the public advantage.6 [7] A tenant is required to continue to pay rent to the lessor until the premises are relet, provided that the lessor satisfies the Tribunal that it took reasonable steps to do so.7 Upon being satisfied that the lessor took reasonable steps to relet the premises, there is no reason why the tenant should not pay compensation for the early termination of the lease.8 [8] Whether the lessor took reasonable steps to relet the premises is a finding of fact. The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.9 An appellate tribunal may only interfere if the conclusion is ‘contrary to compelling inferences’ in the case.10 [9] Ray White gave evidence that the property ‘was definitely advertised for quite a while’.11 The Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate.12 This is some evidence of mitigation of loss. Although not specific, it was uncontradicted and the Tribunal was entitled to rely upon it. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143(3). 3 QUYPD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 4 Cachia v Grech [2009] NSWCA 232, 2. 5 QUYPD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 6 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. 7 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 362; Zak v Applegate [2011] QCATA 247, [7]. 8 Zak v Applegate [2011] QCATA 247, [7]. 9 Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125 - 126. 10 Chambers v Jobling (1986) 7 NSWLR 1, 10. 11 Transcript, Page 1-10, Line 4. 12 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b). -- 3 of 5 -- 4 [10] The amount of compensation awarded for lost rent is the amount of rent lost for a period during which the lessor would be expected to relet the premises. The learned Adjudicator queried why the Agent took three months to relet the property.13 He noted there was no evidence from the former agent and that the area is popular.14 He then found that a reasonable period for lost rent had the property been competently and diligently advertised, would have been one month from 24 June 2016 to 23 July 2016.15 He came to that view based on his experience of other claims for loss of rent within the Tribunal.16 [11] The Appeals Tribunal will not interfere with the exercise of a 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.17 Just because the Appeals 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.18 [12] In awarding lost rent for a period of only one month instead of the three months claimed, the learned Adjudicator specifically took into account the former agent’s failure to mitigate the lessor’s loss by not promptly advertising and reletting the property in a reasonable time.19 He awarded less than half the amount claimed. He therefore reduced the amount claimed by some two months to allow for the delay in advertising. [13] Nothing in the material or the transcript persuades the Appeal Tribunal to come to a different view. I find nothing to indicate that the learned Adjudicator acted on a wrong principle, or made mistakes of fact affecting his decision, or was influenced by irrelevant matters. Nothing in the material or the transcript persuades the Appeal Tribunal that the findings were not open to the learned Adjudicator. [14] There is no reason why Mr Di Lallo should not be liable for the rent lost for a period of one month as awarded by the learned Adjudicator. Should the Appeals Tribunal grant leave to appeal? [15] The appeal process is not an opportunity for a party to again present their case.20 It is the means to correct error by the Tribunal that decided the 13 Transcript, Page 1-8, Lines 5 to 6. 14 Transcript, Page 1-9, Lines 9 to 11, 46. 15 Transcript, Page 1-9, Lines 19 to 20, Page 1-10, Lines 7 to 8, Page 1-11, Lines 4 to 6, Lines 25 to 33, Page 1-15, Lines 35 to 47, Page 1-16, Lines 1 to 3, Page 1-17, Lines 1 to 5. 16 Bertelsen v Czdel [2014] QCATA 165, [13]. 17 House v The King (1936) 55 CLR 499, 504. 18 Lovell v Lovell (1950) 81 CLR 513. 19 Transcript, Page 1-17, Lines 3 to 5. 20 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39, [9]. -- 4 of 5 -- 5 proceeding.21 The learned Adjudicator’s decision was entirely appropriate and I find no reason to adopt a different view. [16] Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.22 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.23 [17] There is no question of general importance for the Appeal Tribunal to determine. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. What is the appropriate Order? [18] The appropriate Order is: 1. Leave to appeal is refused. 21 Ibid. 22 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152, [12], per Wilson J. 23 Ibid. -- 5 of 5 --