A & C G Lee Pty Ltd v Rennie [2011] QCATA 162

CITATION: A & C G Lee Pty Ltd v Rennie [2011] QCATA 162 PARTIES: A & C G Lee Pty Ltd ATF Lee Unit Trust v Kerry Faye Rennie APPLICATION NUMBER: APL116-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member Peta Stilgoe, Member DELIVERED ON: 5 July 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: MINOR CIVIL DISPUTES – where commercial tenant terminated tenancy – whether tenant exercised option or was month to month tenant – calculation of outgoings – whether grounds for leave to appeal PROCEDURE – where respondent appeared by telephone – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009, s 3(b) Fox v Percy (2003) 214 CLR 118 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. -- 1 of 4 -- 2 REASONS FOR DECISION Mr Oliver [1] In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes. Ms Stilgoe [2] Ms Rennie was the tenant in a commercial complex owned by A & C G Lee Pty Ltd (“Lee”). At the end of the first year, Ms Rennie stayed in possession of the premises, paid rent calculated on the first year’s rent plus CPI and paid a contribution towards outgoings. She did not, however, exercise an option to renew the lease. After a further ten months, Ms Rennie terminated the tenancy. Lee applied the bond towards its calculation of rent and outgoings owed by Ms Rennie but considered there was a shortfall of $992.33. It applied to the tribunal for an order that Ms Rennie pay that amount. The learned Adjudicator found that Lee had included amounts in the calculation of outgoings that were not properly chargeable. After a recalculation of the outgoings, the learned Adjudicator ordered that Ms Rennie pay Lee $25.13. [3] Lee has appealed the learned Adjudicator’s decision on these grounds: a) Ms Rennie was permitted to attend the hearing by telephone when Mr Lee, on behalf of the company, travelled from interstate to attend. b) The learned Adjudicator should have found that Ms Rennie did enter into a new lease, not that the tenancy converted to a month to month tenancy. c) The learned Adjudicator was wrong in his recalculation of the outgoings. d) The learned Adjudicator should have ordered that Ms Rennie pay the filing fee and interest. [4] Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [5] Ms Rennie’s application to attend by telephone was filed in the tribunal on 4 February 2011, well before the hearing on 14 March 2011. The tribunal is required to deal with matters in a way that is accessible, fair, just, -- 2 of 4 -- 3 economical and quick.1 Allowing Ms Rennie to attend the hearing by telephone fulfils that objective. It was an avenue also open to Mr Lee but he chose not to take it. The transcript shows that Lee did not suffer any detriment or lack of natural justice, because Ms Rennie appeared by telephone. [6] Clause 2.2 of the commercial tenancy agreement signed by the parties states: “If the Tenant continues to occupy the Premises after the Term with the Landlord’s consent then: (1) The Tenant does so as a monthly tenant on the same basis as the last day of the term.” [7] Clause 14 of the commercial tenancy agreement provides that the option for a further term is exercisable by Ms Rennie giving: “…notice to that effect to the Landlord not less than 3 months before and not more than six months before the Term expires.” [8] Ms Rennie did not give any notice, let alone a notice that complied with clause 14. Lee says, however, that by giving notice of the CPI increase, to which Ms Rennie did not respond except to pay the increased amount, Ms Rennie is taken to have accepted the new term. Lee also says that it did not consent to Ms Rennie continuing to occupy as a month to month tenant pursuant to clause 2.2. [9] The learned Adjudicator rightly rejected both of these arguments. Ms Rennie did not give the notice required by clause 2.2 so did not exercise the option. The mere payment of the increased rent by Ms Rennie does not bind her to a further term. Conversely, acceptance of rent by Lee does amount to the Landlord’s consent to a month to month tenancy. [10] The learned Adjudicator found that outgoings did not include administration costs payable by Lee to Mr Lee. What comprises “outgoings” is a difficult decision; clause 4.2 of the commercial tenancy agreement, conflicts with Item 9 of the reference schedule which, in turn is slightly (although not materially) different from the letter of offer. [11] It is not the appeal tribunal’s task to determine whether there is a different interpretation of the obligation to pay outgoings or even whether there is a better interpretation. The sole function of the appeals tribunal is to determine whether the tribunal’s interpretation is capable of being supported by the evidence2. I find that the learned Adjudicator’s interpretation is capable of being supported by the factual matrix before him. [12] Given the very small amount recovered by Lee in this proceeding, the learned Adjudicator’s decision not to require Ms Rennie to pay interest or 1 Queensland Civil and Administrative Tribunal Act 2009, s 3(b). 2 Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ. -- 3 of 4 -- 4 the filing fee is understandable and is not a decision that merits any change by the appeals tribunal. [13] 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; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. -- 4 of 4 --