Edwards v Stiller [2015] QCATA 76

CITATION: Edwards v Stiller [2015] QCATA 076 PARTIES: Andrew Edwards (Applicant/Appellant) v Warwick Stiller (Respondent) APPLICATION NUMBER: APL024 -15 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Thomas, President DELIVERED ON: 12 June 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where sub-lease of grazing land – where tenant vacated – where tenant failed to give notice – where lessor claimed rent – where tribunal found lease still on foot – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 142(3)(a)(i). 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] On 15 March 2009, Andrew and Linda Edwards sub-leased a grazing property known as Elverston from Warwick Stiller. The sub-lease was for 12 months, but Mr and Ms Edwards stayed on as periodic tenants until January 2014. The rent was $3,391.66 per calendar month. -- 1 of 3 -- 2 [2] Mr and Ms Edwards did not pay the rent due for June 2013 until July 2013. They did not pay the rent for August 2013 but paid rent for September 2013. They paid no rent for October, November, or December 2013 or January 2014. [3] On 27 January 2014, Mr Stiller ordered Mr and Ms Edwards remove their cattle from Elverston. He then filed a claim for five months’ rent, being $16,958.30. A Magistrate, sitting in the minor civil disputes jurisdiction allowed Mr Stiller’s claim and ordered Mr and Ms Edwards pay $17,242.90 (the claim plus filing fees). [4] Mr Edwards wants 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 [5] Mr Edwards submits that there was never a written sub-lease between the parties because the sub-lease was never signed. He submits that, because there was no written sub-lease, the terms of the sub-lease before the learned Magistrate should not apply. He submits, therefore, that the termination procedures should not apply and that the learned Magistrate should have accepted Mr Edwards’ verbal termination of the sub-lease in August 2013 and, therefore, found that no rent was owing. [6] I have read the transcript of the proceeding. The learned Magistrate asked Mr Edwards whether he accepted the terms of the unsigned sub-lease and Mr Edwards told the learned Magistrate that he did accept those terms.3 The parties agreed the terms of the sub-lease agreement and Mr Edwards entered into possession of the leased property and paid rent in accordance with the agreed term of the sub-lease. The learned Magistrate did not err in applying the terms of that lease. [7] Clause 19 of the lease deals with termination on default. If rent is in arrears for 14 days, whether or not there was a demand for the rent, Mr Stiller could terminate the lease by notifying Mr Edwards and/or re-entering the land and ejecting Mr Edwards. That is what Mr Stiller did in January 2014. [8] Even if the learned Magistrate erred in his application of clause 19, and I find that he did not, it does not affect the learned Magistrate’s decision. Mr Stiller’s claim was for rent owing at the date of termination. Mr and Ms Edwards could only avoid that obligation if they could show that they had terminated the sub-lease, and returned possession of Elverston to Mr Stiller, in August 2013. 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 Transcript page 1-6, lines 23–43. -- 2 of 3 -- 3 [9] Mr Edwards asserted that Mr Stiller accepted he had validly terminated the sub-lease because, between August and January, there was no correspondence.4 The material on file suggests Mr Edwards is correct. There is no relevant communication between August 2013 and January 2014. Mr Stiller has not filed copies of invoices he sent to the Edwards. There are emails between Mr Stiller and Mr Edwards in September 2013 about fencing. Mr Stiller makes no reference to the rent or the lease. [10] It was necessary for Mr Edwards to take the steps required by the sub-lease if he wished to terminate the sub-lease. By clause 6, Mr Edwards could end the tenancy by one month’s notice in writing. Mr Edwards told the tribunal he did not notify Mr Stiller that he was leaving the property.5 Therefore, as the learned Magistrate identified, the lease remained on foot until Mr Stiller terminated it in 2014. Mr and Ms Edwards remained liable for rent during that period and the learned Magistrate was correct to allow Mr Stiller’s claim. [11] There is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal is refused. 4 Transcript page 1-17, lines 18–21. 5 Transcript page 1-16, line 26; page 1-17, lines 15–18. -- 3 of 3 --