FV Rentals t/as Forbes Realty Rentals v Anderson [2014] QCATA 181

CITATION: FV Rentals t/as Forbes Realty Rentals v Anderson [2014] QCATA 181 PARTIES: FV Rentals t/as Forbes Realty Rentals (Applicant/Appellant) v Chuntal Anderson (Respondent) APPLICATION NUMBER: APL463-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Thomas, President DELIVERED ON: 14 July 2014 DELIVERED AT: Brisbane ORDER MADE: The application for leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether grounds for leave to appeal Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568 Leddicoat v Walker [2010] QCATA 18 Pickering v McArthur [2005] QCA 294 Professional Atherton Real Estate v Newton and Bond [2010] QCATA 117 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] Ms Anderson was relocating from Townsville to Dalby. She contacted FV Rentals t/as Forbes Realty Rentals to secure accommodation in Dalby. She was told that she could secure a house by signing a tenancy agreement, paying the bond and two weeks’ rent. She asked if she could -- 1 of 4 -- 2 inspect the house first. She was told that she would lose the house if she waited. [2] Ms Anderson signed the agreement, paid her money, packed up her house and moved to Dalby. She arrived to a filthy house which, she says, was unliveable. Three days later, she lodged a dispute resolution request with the Residential Tenancies Authority. She then filed a claim for termination of the tenancy agreement due to hardship and compensation for her losses in not being able to move into the house when she arrived. A Magistrate, sitting as a member of the tribunal, terminated the tenancy agreement and ordered Forbes Realty pay Ms Anderson $3,210 compensation. [3] Forbes Realty wants to appeal that decision. It says the learned Magistrate did not give adequate reasons for her decision. It says that the learned Magistrate had insufficient evidence to justify termination because of excessive hardship. It says that the learned Magistrate could not order compensation for excessive hardship and there was not enough evidence to award compensation for breach of agreement. [4] 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] Forbes Realty says that the learned Magistrate did not link her findings about the condition of the house to her decision that the tenancy agreement should be terminated for excessive hardship. [6] The giving of immediate oral decisions in the tribunal’s minor civil disputes jurisdiction accords with the spirit and purpose of the QCAT Act. Those decisions will not be exposed to criticism which fails to acknowledge the circumstances in which they are given, or the pressure of the tribunal’s caseload. That proposition is not exclusive to the tribunal, as Spigelman CJ remarked in Commissioner of Taxation v Baffsky: It is not appropriate to parse and analyse judgments given on an ex tempore basis by judges of the District Court, who have a considerable caseload.3 [7] The appeal tribunal will not usually disturb findings of fact on appeal if it considers the conclusions of the decision maker below were able to be made on the evidence before them,4 however may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.5 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3] per Keane JA. 3 (2001) 122 A Crim R 568 at 578. 4 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 5 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 2 of 4 -- 3 [8] The learned Magistrate asked Ms Anderson how she was going to suffer excessive hardship and Ms Anderson replied providing information about that issue.6 The exchange took place immediately before the learned Magistrate gave her reasons for decision. It is a logical inference that these are the factors the learned Magistrate relied on to make her decision. The learned Magistrate’s reasons for decision do not give rise to a ground for leave to appeal. [9] As the appeal tribunal has previously observed,7 there is no definition of “excessive hardship” in the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act). The tribunal has a broad discretion. It must consider the particular circumstances of each case. To establish excessive hardship, there must be an element of the facts and circumstances that make the continuation of the tenancy unwarranted or unjustified. [10] Forbes Realty concedes there was a dispute about the condition of the premises when Ms Anderson arrived but it submits that this falls a long way short of establishing excessive hardship. It seems the learned Magistrate preferred Ms Anderson’s evidence: that the premises were not fit to live in. The learned Magistrate’s reference to a fundamental breach of the lessor’s obligations,8 although not strictly relevant to the framework of the RTRA Act, makes that clear. [11] The onus of establishing excessive hardship lies with the tenant. The learned Magistrate noted the fundamental difference in the photos the parties handed up.9 She noted Ms Anderson’s entry condition report.10 She doubted the truth of the invoices provided by Forbes Realty.11 The evidence can support the learned Magistrate’s finding that the house was not fit to live in when Ms Anderson arrived. [12] Once that finding is accepted, it was a matter for the learned Magistrate’s discretion as to whether Ms Anderson suffered excessive hardship. Ms Anderson had arrived from Townsville. She did not have the opportunity to inspect the house. She had a three year old child to accommodate. All her goods and chattels were with a removalist. Although reasonable minds may differ, the learned Magistrate’s exercise of her discretion was open on the evidence and was not so unreasonable that the appeal tribunal should set it aside and substitute its own decision. [13] In any event, the argument is an arid one. Forbes Realty had procured a new tenant only fourteen days after Ms Anderson gave her dispute resolution request. Forbes Realty must have accepted the termination some time prior to 27 May 2013 and certainly before the hearing on 8 July 2013. Forbes Realty did not make a claim for compensation until the 6 Transcript page 1-11, lines 20 – 38. 7 Leddicoat v Walker [2010] QCATA 18. 8 Transcript page 1-12, line 21. 9 Transcript page 1-12, line 31 – 32. 10 Transcript page 1-12, line 7 – 8. 11 Transcript page 1-12, line 35 to page 1-13, line 4. -- 3 of 4 -- 4 submissions filed in its application for leave to appeal. The invoices show that Forbes Realty did work on the premises in the intervening period, including new carpets. It seems that Forbes Realty required the two weeks between Ms Anderson’s rejection of the tenancy and the new tenancy to improve the premises. Forbes Realty has suffered no substantial injustice as a result. [14] Section 343 of the RTRA Act does not give the tribunal any power to order compensation for excessive hardship. The learned Magistrate’s reasons for decision do not suggest that this is the basis for her compensation order. [15] Section 420 of the RTRA Act gives the tribunal power to order compensation for a breach of the tenancy agreement. [16] Ms Anderson did not refer to section 420 in her application but that is not fatal. It was clear that she was claiming compensation because the house was dirty. It is an unsurprising inference that a dirty house would be a breach of the tenancy agreement. [17] Forbes Realty submits out that the power to give compensation under section 420 is not enlivened unless certain steps have been taken. It points out that Ms Anderson did not give a Form 11 notice to remedy breach. It referred the appeals tribunal to Professional Atherton Real Estate v Newton and Bond12 as authority for the proposition that a Form 11 and a Form 12 are necessary preconditions to the tribunal being able to order compensation under section 420. [18] Professional Atherton Real Estate v Newton and Bond was a decision about termination. The Act is proscriptive about the requirements for a successful termination application. It is not so proscriptive about an application for compensation. The only thing required is that the parties have made a dispute resolution request13 and that the application is made within 6 months of the breach.14 Section 420 does not refer to the need for a Form 11. Section 217, which deals with notice of damage, does not refer to a Form 11; it simply refers to “notice”. There is no basis for Forbes Realty’s assertion that the tribunal could not deal with Ms Anderson’s claim for compensation. [19] I have already commented on the learned Magistrate’s conclusion that the premises were not fit to live in. Because the evidence can support that finding, it stands to reason that the evidence can support a finding that there was a breach of the tenancy agreement. [20] There is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal should be refused. 12 [2010] QCATA 117. 13 RTRA Act s 416. 14 RTRA Act s 419(3). -- 4 of 4 --