Doeuk v Sclavos [2016] QCATA 175

CITATION: Doeuk v Sclavos [2016] QCATA 175 PARTIES: Sa-ath Doeuk Sona Doeuk (Applicants/Appellants) v Kosmas Peter Sclavos (Respondent) APPLICATION NUMBER: APL108 -16 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 16 November 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. Order 2 of the decision dated 11 December 2015 is set aside. 1. Kosmas Peter Sclavos shall pay Sa-ath Doeuk and Sona Doeuk $13,080.00 by 4:00pm on 9 December 2016. CATCHWORDS: APPEAL – LEAVE TO APPEAL – PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – JURISDICTION – where tribunal jurisdiction limited to $25,000 – where claim in excess of jurisdiction – where tribunal dismissed claim because it was outside jurisdiction – whether grounds for leave to appeal APPEAL – LEAVE TO APPEAL – LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – GENERALLY – where tenancy terminated early – where claim for compensation – whether steps to mitigate loss Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100 -- 1 of 4 -- 2 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 83(b) Pickering v McArthur [2005] QCA 294 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] Kosmas Sclavos rented two townhouses from Sa-ath and Sona Doeuk. He wanted to combine the two properties and use them as both a residence and a tanning studio. When he could not get the necessary planning permission to operate the tanning studio, Mr Sclavos terminated the tenancy agreements. He filed a claim for compensation. The lessors filed a counterclaim for compensation due to Mr Sclavos’ breach of the tenancy agreements. The tribunal dismissed both claims. [2] The lessors want to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [3] The lessors say there are two errors by the tribunal. The first was to dismiss the counterclaim because it was beyond jurisdiction. The second was the tribunal’s finding that the lessors failed to mitigate their loss. Should the tribunal have dismissed the lessors’ claim as being beyond jurisdiction? [4] The lessors’ claim against Mr Sclavos was in excess of $110,000. Of that, almost $7000 related to their legal costs in preparing the claim. [5] The lessors applied to transfer the proceeding to the Magistrates Court, just before the hearing. The basis of the application was that they had filed a claim against their letting agent. The tribunal refused the application and the lessors’ lawyer was advised of that fact at the hearing.3 The lessors’ lawyer accepted that decision and, apparently, elected to proceed.4 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 Transcript page 1-5, lines 1 – 4. 4 Transcript page 1-5, line 9. -- 2 of 4 -- 3 [6] The tribunal does have jurisdiction up to $25,000. The fact that the claim exceeded the tribunal’s jurisdiction did not prevent the tribunal from making an order that was within its power. [7] The tribunal was in error. Leve to appeal should be granted and the appeal allowed. Did the tribunal err in finding that the lessors did not mitigate their loss? [8] The lessors point out that there was evidence before the tribunal that they mitigated their loss. They appointed a new letting agent. The new letting agent eventually secured a new tenant for one townhouse in October 2015, albeit at a considerably lower rent. [9] There is, however, no evidence about the attempts to find a tenant between the date Mr Sclavos left (26 June 2016) and the time a new tenant was found. It is also true that there is almost no evidence that the lessors attempted to mitigate the loss of rent from the other townhouse. As the tribunal observed,5 there were structural changes the lessors could have undertaken to make the premises more attractive. However, the absence of evidence of mitigating the loss from one townhouse should not taint the clear evidence of mitigation that did occur. [10] The tribunal was in error. Leave to appeal should be granted and the appeal allowed. What is the appropriate order? [11] The lessors claimed: Loss of full rent for unit 80 and ground floor of unit 78 from 26/06/15 to 15/10/15 ($1150 x 16 weeks) $18,400.00 Loss of part rent for ground floor of unit 80 and unit 78 from 15/140/15 to 14/04/16 ($1150 – $685 = $465 x 26 weeks 12,090.00 Loss of rent for unit 80 and ground floor of unit 78 from 14/04/16 to 23/07/17 71,300.00 Re-letting fee charged by new agent 685.00 Anticipated cost of letting fee 1,000.00 Loss of letting fee charged by agent 1,265.00 Filing fee 305.00 Legal costs 6,819.50 Total $111,864.50 [12] I am prepared to allow compensation of $12,090, as the lessors have demonstrated that they mitigated their loss. I am not prepared to otherwise allow loss of rent, because of the absence of evidence about mitigation. I will allow the re-letting fee of $685. I will not allow the anticipated letting fee; 5 Reasons for decision at [72]. -- 3 of 4 -- 4 it has not been incurred and may never be incurred. I will not allow the letting fee charged by the original agent. The agent secured a tenant, so the fee was payable. I will allow the filing fee. [13] The tribunal requires parties to bear their own costs of proceedings in the tribunal unless the interest of justice otherwise require.6 Rule 83(b) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) states that the costs a tribunal may order in a minor civil disputes claim is limited to the filing fee. I do not allow the claim for costs. [14] I order as follows: a) Leave to appeal is granted. b) The appeal is allowed. c) Order 2 of the decision dated 11 December 2015 is set aside. d) Kosmas Peter Sclavos shall pay Sa-ath Doeuk and Sona Doeuk $13,080.00 by 4:00pm on 9 December 2016. 6 QCAT Act s 100. -- 4 of 4 --