Gerrard v Emerald Lakes Residential
[2025] QCAT 33
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- Gerrard v Emerald Lakes Residential[2025] QCAT 33
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Gerrard v Emerald Lakes Residential[2025] QCAT 33
Gerrard v Emerald Lakes Residential[2025] QCAT 33
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Gerrard v Emerald Lakes Residential [2025] QCAT 33 |
PARTIES: | william anthony gerrard (applicant) v emerald lakes residential (respondent) |
APPLICATION NO/S: | APL111-24 |
ORIGINATING APPLICATION NO/S: | MCDT24/24 (Southport) |
MATTER TYPE: | Residential tenancy matters |
DELIVERED ON: | 15 January 2025 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Goodman |
ORDERS: | Leave to appeal is refused. |
CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the evidence was capable of supporting the conclusions reached by the adjudicator – where leave to appeal refused Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 Cougar Air Pty Ltd v Sankarayya [2015] QCATA 98 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 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Hempel & Anor v Richardson & Wrench Hervey Bay [2018] QCATA 170 Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]The applicant is a former tenant who is seeking the refund of money from the respondent, an agent which formerly managed his rental property on behalf of the owners.
- [2]The applicant’s application was heard and determined by an adjudicator on 19 February 2024, when his application was dismissed.
- [3]The applicant has applied for leave to appeal,[1] and, if successful, to appeal against the adjudicator’s decision. This is the decision in relation to the leave to appeal application.
- [4]In considering whether to grant leave to appeal, the Appeal Tribunal considers whether:
- there is a reasonably arguable case of error in the primary decision;[2]
- there is a reasonable prospect that the appellant will obtain substantive relief;[3] and whether;
- leave is needed to correct a substantial injustice caused by the error;[4] or
- there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[5]
- [5]An error of law may occur where a decision maker:
- has made a finding of fact without probative evidence to support it, or has drawn an inference which was not reasonably open on the primary facts;[6] or
- has made a decision which is manifestly unreasonable by failing to give adequate weight to a relevant factor of great importance or given excessive weight to a relevant factor of no great importance.[7]
- [6]The appeal process is not an opportunity for applicants to have their case automatically reheard or a decision reconsidered.[8] Leave to appeal will not be granted merely because an appeal tribunal disagrees with a factual finding of the tribunal.[9] The appeal tribunal will not usually disturb findings of fact if the evidence is capable of supporting the conclusions.
THE DECISION OF THE ADJUDICATOR
- [7]The Adjudicator, in giving reasons for their decision, sets out the facts of the case, and explains their decision as follows:
The application from Mr Gerrard seeks orders of the tribunal that the respondent compensate an amount of $2400, which is equivalent to two weeks’ rent. It is an amount that Mr Gerrard had paid to – after he had vacated the property but during the term of his lease.
The background to the matter is that Mr Gerrard signed a tenancy agreement that commenced on the 20th of January 2023 and was due to end around that time in 2024. By Form 13 notice of intention to leave given on the 14th of August 2023, Mr Gerrard notified Emerald Lakes Residential that he was going to be leaving by the end of 19th October but later the 26th of October. The reason for wanting to break the lease is that Mr Gerrard had purchased a new property, and it was likely to settle and be ready to be occupied in October.
Mr Gerrard paid the rent up until the 26th of October 2023. A new tenant was not found until – to take over until about the 15th of November of 2023. Pursuant to clause 7 of the lease and also, I guess, some other – an agreement to terminate a fixed-term tenancy that was filled out by Mr Gerrard, he was notified that he was entitled to break the lease; however, he would be – he would incur costs which would be a week’s rent plus GST, which is the – what is defined as the owner’s reasonable costs incurred, and that is usually payable to the agency for the work in finding a new tenant, plus advertising, which Mr Gerrard happily paid, and he was also notified that he would have to continue to pay rent until a new tenant was found. That new tenant was found as of around the 15th of November.
Mr Gerrard says he objects to paying that – he has paid it but says he should be compensated two weeks’ rent because he believes that the advertising was not done timely. It should have been done around the time of – he gave the Form 13 notice of intention to leave. Ms Christiansen has said that it was the 27th of September, I think, that the first advertising took place, and that there were open homes that were conducted on at least, I think you said, eight occasions, and there was one applicant at the $1200 a week rent. That application was accepted. It was the only application. It just so happened she could not move in until the 15th of November, which meant that Mr Gerrard was still liable up until the day before that lease commenced.
I – in my view, Ms Christiansen has given adequate explanations as to why the advertising was late September and not August, that the – a listing too early for a vacancy two months hence would go down the list and perhaps become – not unfindable, but go too far down the list and become, as she described it, stale after a time. The generally accepted time is a month before the departure of a tenant. Mr Gerrard, unfortunately, has taken the risk that this would happen by breaking a lease when the owner is entitled to have – to be – to have rent paid on a weekly basis at least until the 19th of January 2023 under the current lease.
Accordingly, I find there are no grounds for reimbursing Mr Gerrard the money he has paid. In my view, section 362 of the Residential Tenancies Act has been observed in that the agency has taken adequate steps to mitigate the loss of the tenant by advertising at a reasonable time, taking an application that was made to them, and working quickly to make sure that that – that tenancy came to fruition as soon as was possible. Accordingly, I find that there are no grounds to the application, and the application is therefore dismissed. That is the order of the tribunal.
- [8]In seeking leave to appeal, the applicant states that:
- his claim is about the agent’s failure to advertise the property on their own website, where other advertised properties were leased very quickly.
- he provided more than two months notice (rather than the required 14 days) and paid the costs of the reletting fee, expecting the agent to start promoting the property promptly.
- If the property had been advertised promptly, there is a good chance that it would have attracted a tenant much earlier.
- Despite being him being charged on 17 August 2023, the agent showed no intention or attempt to market the property until 27 September.
- Rent was paid until Thursday 26 October 2023, but the property was advertised as being available from Wednesday 1 November 2023, with no explanation for the delay, but it could have been to allow for work to be done to the property.
- The extra rent paid amounted to $3,257.14, not the $2,400 stated in the decision.
SHOULD LEAVE TO APPEAL BE GRANTED?
- [9]The adjudicator provided the parties with ample opportunity to present their cases during the hearing, and considered the evidence before them. The reasons for the decision explain clearly what the decision is, and the basis upon which it was made.
- [10]The issues raised by the applicant in seeking leave to appeal are essentially the same issues raised at the hearing.
- [11]The applicant submits that the adjudicator was wrong, and that the agent did not make sufficient effort to limit his loss or expense because they delayed advertising the property for lease. The adjudicator hearing the matter considered those submissions and determined the issue in favour of the agent. It is clear that the adjudicator had regard to evidence presented by the parties, and made findings on the evidence. The reasons for the decision are clear. There was sufficient evidence to justify the decision, even though the applicant says it was wrong. There is no error of law identified by the applicant. There are findings of fact which were open to the adjudicator to make based on their assessment of the evidence.
- [12]The applicant disagrees with the decision of the adjudicator. That does not entitle him to have the issues reheard. The assessment of evidence is a matter for the adjudicator in the hearing. As the evidence was capable of supporting the conclusions reached, there is no basis for interfering with the conclusions reached by the adjudicator.
- [13]I am not satisfied that there is a reasonably arguable case of error in the primary decision, or that there is a reasonable prospect that the applicant would obtain substantive relief if leave was given for the appeal to be considered. I am not satisfied that leave is needed to correct a substantial injustice caused by an error, and I am not satisfied that there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.
- [14]Leave to appeal is refused.
Footnotes
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143.
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232, 2.
[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.
[6] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356.
[7] Ibid, 340.
[8] Hempel v Richardson & Wrench Hervey Bay [2018] QCATA 170 [14].
[9] Ibid; Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611, [131].