Deeb v Space Property [2013] QCATA 164

CITATION: Deeb v Space Property [2013] QCATA 164 PARTIES: Mr John Deeb (Applicant/Appellant) V Space Property (Respondent) APPLICATION NUMBER: APL073 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 17 June 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused CATCHWORDS: MINOR CIVIL DISPUTE – where break lease fee charged – whether break lease fee reasonable – whether grounds of 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 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. -- 1 of 3 -- 2 REASONS FOR DECISION [1] Mr Deeb rented a house on a fixed term of 12 months through Space Property. He couldn‟t afford to stay so, after about four months, he advised Space Property that he wanted to break the lease. Space Property found new tenants. It filed an application for damages for breach of the tenancy. One of the claims was a break lease fee of one week‟s rent plus GST, a total of $935. [2] The learned Adjudicator ordered Mr Deeb pay Space Property $1,079.75. That amount included the break lease fee. Mr Deeb wants to appeal that decision. He says that $935.00 is not a reasonable fee. [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] The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.5 An appellate tribunal may interfere if the conclusion is „contrary to compelling inferences‟ in the case.6 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 the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.7 [5] Mr Deeb told the learned Adjudicator that he thought the break lease fee was unreasonable. He argued that one week‟s rent was excessive in cases where the rent was high.8 He told the learned Adjudicator that he thought $400 was a reasonable break lease fee. [6] The learned Adjudicator pointed out that, sometimes, it is harder to rent a more expensive property.9 In fact, it took 13 weeks to find another tenant 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 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 6 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 7 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. 8 Transcript at 11:28. 9 Transcript at approximately 12:30. -- 2 of 3 -- 3 for this property.10 The learned Adjudicator asked the agent why it took so long.11 The agent told the learned Adjudicator the delay was a combination of the time of year and the high rent. The agent told the learned Adjudicator they had a number of inspections of the property but prospective tenants did not meet the criteria. [7] The learned Adjudicator considered the question of whether the break lease fee was reasonable.12 She cited the industry standard. She noted the long campaign, the fact of advertising, the need to vet applications, and that the agent altered the advertising to attract applications. The learned Adjudicator was satisfied that Space Property had earned its break lease fee and I can find no compelling reason to come to a different view. [8] 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. 10 Transcript at 28:50. 11 Transcript at 29:33. 12 Transcript at 35:28. -- 3 of 3 --