Cleverly v Teasdale Estate Agents [2014] QCATA 140

CITATION: Cleverly v Teasdale Estate Agents [2014] QCATA 140 PARTIES: Andrea Cleverly (Applicant/Appellant) v Teasdale Estate Agents (Respondent) APPLICATION NUMBER: APL047-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 16 June 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where repeated notices to remedy breach – where tenant’s rent still in arrears at hearing – where tribunal exercised discretion to terminate tenancy agreement – whether grounds to set aside the tribunal’s exercise of discretion – whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 416, 421 House v The King (1936) 55 CLR 499 Lovell v Lovell (1950) 81 CLR 513 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 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). -- 1 of 3 -- 2 REASONS FOR DECISION [1] Ms Cleverly rented a home through Teasdale Estate Agents. She fell behind in her rent, so Teasdale issued a notice to remedy breach. Ms Cleverly continued to be behind in her rent, so Teasdale issued a notice to leave. Ms Cleverly did not leave, so Teasdale applied to terminate the tenancy agreement. The tribunal ordered a termination of the tenancy agreement on 20 January 2014. [2] Ms Cleverly wants to appeal that decision. She says that she was “only a little bit” behind in the rent on 20 January 2014. She wants the appeal tribunal to reconsider her personal circumstances, allow her to remain in the home, and allow her to “catch up” on the rent. [3] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur1: There are numerous authorities, in varying language but with unvarying emphasis, that 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. [4] Ms Cleverly’s submissions to the appeals tribunal refer to the condition of the house and compensation issues. She filed a six page statement and copies of notices to remedy breach that she issued shortly before the hearing. She filed a copy of a statement she made to police plus handwritten statements from a number of witnesses. The fresh evidence relates to alleged abuse by Ms Cleverly’s neighbours. [5] The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Ms Cleverly have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?2 [6] Ms Cleverly told the learned Member about her abusive neighbours3. The learned Member correctly identified that Teasdale’s application was based on non-payment of rent, so the neighbour’s behaviour was irrelevant. The fresh evidence is still not relevant to the central issue – whether Ms Cleverly was in breach of her tenancy agreement. 1 [2005] QCA 294 at [3]. 2 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 3 Transcript page 1-2 line 43 to page 1-3, line 2. -- 2 of 3 -- 3 [7] Ms Cleverly raises other issues in her fresh evidence. She suggests that she was entitled to compensation because of the condition of the tenancy. Ms Cleverly told the learned Member about the condition of the house4. She lodged the notices to remedy breach after Teasdale issued its notice to leave. The notices related to matters that occurred in October 2013 but she did not act until Teasdale took steps to terminate the tenancy. Ms Cleverly did not provide the learned Member with evidence that the dispute had been to conciliation before the Residential Tenancies Authority, a necessary pre-condition to bringing an application for compensation5. She did not provide any supporting evidence at the hearing. She should not be able to do so now. [8] The fresh evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Member. [9] The learned Member found6 that Teasdale had made out the grounds of its application. Ms Cleverly does not dispute that. She is asking the appeals tribunal to exercise its discretion differently. [10] The Appeal Tribunal will not interfere with a Member’s exercise of discretion unless it can be shown that the Member acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters7. Just because the Appeal Tribunal might have exercised the discretion differently, is not a basis for changing the decision. Ms Cleverly must show that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion8. [11] Teasdale issued six breach notices9. As the learned Member observed,10 Ms Cleverly was consistently in arrears. These are both matters that the learned Member was entitled to consider when exercising her discretion11. While I understand that Ms Cleverly feels that the application of the decision has an unjust result, she has not demonstrated that the learned Member’s decision was unreasonable, or showed a misapplication of the discretion. [12] I can find no good reason to overturn the learned Member’s exercise of her discretion. There is no reasonably arguable case that the learned Member was in error. Leave to appeal should be refused. 4 Transcript page 1-4, lines 22 – 45. 5 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) s 416. 6 Transcript page 1-9, lines 10 – 13. 7 House v The King (1936) 55 CLR 499, at 504. 8 Lovell v Lovell (1950) 81 CLR 513. 9 Transcript page 1-3, lines 34 – 37. 10 Transcript page 1-9, lines 12 – 15. 11 RTRA Act s 421. -- 3 of 3 --