Fenech v Smith [2014] QCATA 81

CITATION: Fenech v Smith [2014] QCATA 81 PARTIES: Jane Fenech (Applicant/Appellant) v Emily Therese Smith (Respondent) APPLICATION NUMBER: APL052 -14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 14 April 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 13 January 2014 is set aside. 4. Emily Therese Smith shall pay Jane Fenech $159.50 within 21 days of today’s date. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where claim for rent after tenant vacated – where tenant vacated on handover date nominated in Form 12 – where tribunal found no obligation to pay rent after termination – where special term in tenancy agreement to change locks if all keys not returned – where all keys not returned – where tribunal did not order tenant to pay for changing locks – whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act 2008 ss 277(3), 362(3), 419(3) Pickering v McArthur [2005] QCA 294 Clarke v Japan Machines (Australia) Pty Ltd -- 1 of 4 -- 2 [1984] 1 Qd R 404 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 Fenech rented a property to Ms Smith. On 1 June 2013, Ms Fenech issued a Form 11 notice to remedy breach. On 11 June 2013, Ms Fenech issued a Form 12 notice to leave. Ms Smith left the tenancy on the handover date nominated in the Form 12. Ms Fenech then filed an application for compensation. She claimed unpaid rent, the cost of changing the locks, the cost of installing a CCTV camera, the cost of a restricted padlock on the electricity meter board and miscellaneous costs. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, dismissed Ms Fenech’s claim. [2] Ms Fenech wants to appeal that decision. She says that the learned Justices applied the wrong law when deciding her claim. [3] Ms Fenech filed fresh material in support of her application for leave to appeal. The information statement from the Residential Tenancies Authority is just that; an information statement. It is not, as Ms Fenech asserts, “the law”. It does not assist the appeals tribunal and should not be admitted. [4] Ms Fenech also filed fresh affidavits. 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 Fenech 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?1 [5] Ms Fenech has not explained why this material was not available at the hearing. The affidavits largely repeat statements made in previous affidavits and do not have an important impact on the result of the case. The application for leave to appeal should be determined on the basis of the material before the learned Justices. [6] 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 McArthur2: 1 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 2 [2005] QCA 294 at [3]. -- 2 of 4 -- 3 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. [7] Ms Smith left the premises on 25 June 2013. She paid rent until 16 July 2013 and then signed over the bond to Ms Fenech. Ms Fenech claimed for loss of rent from 16 July 2013 to 5 September 2013 because she did not find another tenant until September. [8] The learned Justices dismissed that part of Ms Fenech’s claim on the grounds that, if a tenant vacates in response to a notice to leave, the lessor is no longer entitled to rent from the tenant. They relied on s 277(3) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). However, as Ms Fenech rightly points out, she is entitled to compensation under s 419(3) of the Act if she can demonstrate that Ms Smith breached the tenancy agreement and that breach caused loss. [9] The learned Justices erred in their application of the law. [10] Ms Fenech asserted that Ms Smith breached the tenancy agreement because her male guest was engaging in objectionable behaviour. The learned Justices did not make any finding about that. Ordinarily, the absence of a finding would compel me to return the matter to the learned Justices for reconsideration3. [11] Ms Fenech had a duty to mitigate her loss4. She had already received 6 weeks’ rent past the date on which Ms Smith left the tenancy. She undertook the necessary repairs to the premises in June 2013. She provided copies of advertising invoices that suggest she started advertising for a new tenant before Ms Smith left the premises. Ms Fenech has not explained why she did not have a new tenant for the premises. She refers to a “court case” ongoing as at 10 September 2013 but she does not provide proper details of the other case or why it may have impacted on her ability to find another tenant. [12] Six weeks is normally enough time to find another tenant. Ms Fenech has not demonstrated why she is entitled to compensation beyond that period. Although the learned Justices may have erred, for different reasons, I am not inclined to change their decision to refuse compensation for lost rent. [13] The learned Justices noted special condition 95 which states: “if you duplicated keys you need my permission and they have to be handed over when you leave or you pay for a locksmith to change the locks”. The clear intention of the special condition was that if Ms Smith did not hand back all keys then, to preserve the security of the premises, Ms Fenech would be entitled to change the locks at Ms Smith’s cost. Ms Smith admitted that 3 QCAT Act s 146(c). 4 Residential Tenancies and Rooming Accommodation Act 2008 s 362(3). 5 Transcript page 1-38, line1. -- 3 of 4 -- 4 she did not return all keys for the premises6 because she lost the original set. The learned Justices erred in their conclusion that Ms Smith complied with the tenancy agreement. Ms Fenech is entitled to the cost of changing the locks. [14] The learned Justices found that the installation of the CCTV and the restricted padlock were not sufficiently related to Ms Smith’s tenancy. The evidence can support that finding and I can find no compelling reason to come to a different view. [15] On the limited ground that Ms Smith should pay Ms Fenech’s costs of changing the locks, I am compelled to grant leave to appeal and allow the appeal. The decision of 13 January 2014 is set aside. Ms Smith shall pay Ms Fenech $159.50 within 21 days of today’s date. 6 Transcript page 1-26, line 8. -- 4 of 4 --