Bateson v Coronis Real Estate [2013] QCATA 328

CITATION: Bateson v Coronis Real Estate [2013] QCATA 328 PARTIES: Melissa Louise Bateson (Applicant) v Coronis Real Estate (Respondent) APPLICATION NUMBER: APL253 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 4 November 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where application for termination for excessive hardship – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Leddicoat v Walker [2010] QCATA 18 Hayward & Anor v LJ Hooker Longreach [2013] QCATA 221 -- 1 of 3 -- 2 APPEARANCES and REPRESENTATION (if any): The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] Ms Bateson is a teacher. She had a six month contract to teach at Ormeau State High School so she signed a tenancy agreement on a home at Coomera. The tenancy agreement was for twelve months. When Ms Bateson‟s teaching contract expired, she could not afford to pay her rent. She applied to terminate the tenancy agreement on hardship grounds. A tribunal Member dismissed Ms Bateson‟s application. [2] Ms Bateson wants to appeal that decision. She says, in simple terms, that the learned Member was wrong. [3] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?1 Is there a reasonable prospect that the applicant will obtain substantive relief?2 Is leave necessary to correct a substantial injustice caused by some error?3 Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?4 [4] “Excessive hardship” is a question of fact having regard to the particular circumstances of the case5. The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.6 An appellate tribunal may interfere if the conclusion is „contrary to compelling inferences‟ in the case.7 However, the appeal tribunal must exercise its own discretion when considering whether the original decision maker was in error. As the High Court said in Fox v Percy: In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 2 Cachia v Grech [2009] NSWCA 232 at 2. 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 4 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. 5 Hayward & Anor v LJ Hooker Longreach [2013] QCATA 221; Leddicoat v Walker [2010] QCATA 18. 6 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 7 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 2 of 3 -- 3 the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.8 [5] Ms Bateson told the tribunal she had a lot of debts and financial problems9. She was unemployed from December 2012 and on Centrelink benefits. Ms Bateson said that she had only $300 left in her bank account.10 [6] However, by the time of the hearing, Ms Bateson was employed and earning $800 per week.11 For that reason, the learned Member found that Ms Bateson was not suffering excessive hardship. The evidence can support that finding and I can find no compelling reason to come to a different view. [7] Even if Ms Bateson established excessive hardship, the learned Member could consider whether it was fair to terminate the tenancy agreement.12 Ms Bateson knew that her teaching contract finished before the tenancy agreement finished. Her dire financial position does not seem to be entirely connected to her lack of employment for the short period from December to mid-February. [8] In any event, a termination order had no utility. As the learned Member observed, termination could only take effect from the date of the hearing - that is, on 5 April 2013. Coronis Real Estate relet the tenancy on 22 February 2013.13 Ms Bateson‟s liability for rent crystallised at that point. A termination order offered her no additional protection. [9] There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. 8 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. 9 Transcript page 1-5, lines 41 – 42. 10 Transcript page 1-5, line 18. 11 Transcript page 1-5, line 3. 12 Hayward & Anor v LJ Hooker Longreach [2013] QCATA 221 at [30]. 13 Transcript 1-6, line 10. -- 3 of 3 --