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- Unreported Judgment
Burlington Realty Pty Ltd v McComb QCATA 110
Burlington Realty Pty Ltd t/as Belle Property Paddington v McComb  QCATA 110
Burlington Realty Pty Ltd t/as Belle Property Paddington
On the papers
Senior Member Stilgoe OAM
5 July 2016
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – OTHER MATTERS – where tenancy flooded in May – where tenant gave notice of intention to leave with grounds in October – where tenant vacated – where claim for compensation for early termination of tenancy – where tribunal found lessor failed to take reasonable steps to mitigate loss – whether grounds for leave to appeal
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur  QCA 294
Chambers v Jobling (1986) 7 NSWLR 1
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
- Fiona McComb rented a Queenslander at Windsor through Burlington Realty Pty Ltd t/as Belle Property Paddington. The term of the tenancy agreement was from 15 April 2015 to 14 April 2017.
- In May, 2015, a severe storm hit Brisbane. Some areas of Brisbane experienced 100mm of rainfall in one hour. The underneath of Ms McComb’s rental property, including a lockable storage area, was flooded.
- Ms McComb notified Burlington of the flooding by email of 8 May 2015, requesting action. By email of 11 May, Burlington advised Ms McComb that it was an extreme weather event and that it did not advertise the property as being able to withstand severe weather events.
- By email of 20 October 2015, Ms McComb told Burlington that she intended to ‘break the lease’ as soon as possible because of the flooding issue under the house. Ms McComb advised that she intended to vacate on or about 15 December. Burlington responded on 21 October 2015, advising Ms McComb that, if she left as she planned, she would breaking the tenancy agreement. Ms McComb issued a Form 13 (notice of intention to leave) on 10 November 2015. She issued a Form 11 (notice to remedy breach) on 3 December 2015. She vacated on 15 December 2015.
- Burlington did not find another tenant until 5 February 2016. It filed an application for compensation for $3,278.57 lost rent. The tribunal gave Burlington no compensation and ordered the bond be paid to Ms McComb.
- Burlington wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. 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.
- Burlington says that Ms McComb was not entitled to issue the Form 13. It says that the Form 11 was too late, there was no basis for it, and Ms McComb was not entitled to issue it. It says that the tribunal erred in finding that it did not mitigate its loss because the tribunal erred in finding that it delayed almost a month before attempting to find a new tenant.
The Form 13
- The tribunal did not specifically refer to the Form 13 in its reasons for decision. Tribunals constituted by Justices of the Peace, as this tribunal was, have no power to determine termination applications, so it is understandable that it did not consider the termination issues inherent in the application before it.
- Ms McComb rightly submits that, because the tenancy had been terminated, and terminated early, the tribunal was not required to look at the Form 13.
- She also says that the validity of the Form 13 was not part of the tribunal’s reasoning process. I also agree with this submission. Although the tribunal said:
Now, because of the damage, in our view, because Ms McComb has contracted to rent a house with storage and suitable storage, in our view, Ms McComb would have been able to seek termination of her lease at that time...
the tribunal did not accept that Ms McComb validly terminated the tenancy. If it had taken that view, then there would have been no discussion as to whether Burlington mitigated its loss.
- I agree that, for various reasons, Ms McComb was not entitled to issue the Form 13 but the tribunal’s decision was not affected by a failure to refer to that issue.
- The tribunal was not in error. This is not a valid ground for leave to appeal.
The Form 11
- It follows from my comments about the Form 13 that Burlington’s submissions about the validity of the Form 11 are also not relevant to the tribunal’s decision.
- Ms McComb could not cure any defect in her Form 13 by issuing a late Form 11 but, again, this issue was not relevant to the tribunal’s determination. The tribunal was not in error. This is not a valid ground for leave to appeal.
Did the tribunal err in finding that Burlington did not mitigate its loss?
- The tribunal’s reason for finding that Burlington failed to mitigate its loss was that it did not advertise the tenancy for lease for over one month after Ms McComb gave notice of her intention to leave.
- There is no basis for the tribunal’s conclusion that Burlington waited over one month before listing the premises for lease. On the contrary, Burlington received written notice of Ms McComb’s intention to leave by email of 20 October 2016 and listed the premises for lease on 3 November 2015, before it received Ms McComb’s formal notice of intention to leave via the Form 13. By email of 26 October 2015, Ms McComb acknowledged that the lessor would suffer losses and asked Burlington do its best to mitigate that loss.
- Although not contained in its reasons for decision, the tribunal’s questioning of Burlington appears to point to a failure to advertise the premises for lease in October 2015. But Burlington officially knew of Ms McComb’s intention to vacate no earlier than 25 October 2015. If the tribunal thought that Burlington could market the premises in October, 2015, it was mistaken.
- Ms McComb submits that Burlington did not mitigate its loss because:
- It continued to advertise the property with storage space, when it was not entitled to do so, because ‘storage space’ means ‘away from water, dry or secure’.
- It had a stated policy not to investigate flood damaged premises, and did not investigate this premises.
- It failed to contact her or follow up her complaint to ensure no resultant repairs were required.
- It failed to advertise the premises as being available for reletting as soon as Ms McComb vacated.
- It was entitled to, but did not, challenge the Form 13.
- Ms McComb does not provide any evidence, or precedent, to support her submission that ‘storage space’ has a particular meaning. The ordinary meaning of that phrase is, simply, some place where ‘stuff’ can be stored. It might had have a particular meaning to Ms McComb, because she wanted to store particular items in a particular way, but her perception cannot colour the meaning of an ordinary phrase.
- Ms McComb’s complaint about Burlington’s attitude towards her complaint cannot be a factor in its decision to advertise the premises for lease. I understand that she was unhappy with Burlington’s response to her concerns but it cannot be a basis for deciding that Burlington failed to mitigate the loss stemming from Ms McComb’s decision to break lease.
- Ms McComb gave evidence that she told the tribunal she was happy to move if Burlington found another tenant. The tribunal interpreted that statement as an indication that Burlington could tell potential tenants that the premises was available from 3 November 2015. That cannot be correct. The premises went up on the website on 3 November 2015. As late as 13 November 2015, the parties were in dispute about possible inspection times. It could not be said that Burlington was in a position to offer possession of the premises from either 3 November or 11 November 2015.
- If, as Ms McComb acknowledged, her termination and the Form 13 were irrelevant to the tribunal’s decision, it is difficult to understand why a failure to challenge the Form 13 amounts to a failure to mitigate loss. Burlington had already accepted Ms McComb’s breach of contract, and was making plans to find a new tenant. There was nothing to be gained from challenging the Form 13.
- Burlington filed material showing the efforts it had taken to secure a new tenant. It explained to the tribunal that it is difficult to lease premises over the Christmas period. The evidence does not support a finding that Burlington failed to mitigate its loss. The tribunal was in error. Leave to appeal should be granted and the appeal allowed.
- Because the grounds of appeal are mixed fact and law, the appeal tribunal must decide the appeal by way of rehearing. I have considered the evidence before the tribunal. I am satisfied that Burlington took reasonable steps to mitigate its loss. Ms McComb broke her tenancy agreement; she should pay rent until Burlington was able to find a new tenant.
- The order of 1 March 2016 is set aside. Fiona McComb shall pay Burlington Realty Pty Ltd t/as Belle Property Paddington $3,278.57 by 28 July 2016.
 QCAT Act s 142(3)(a)(i).
Pickering v McArthur  QCA 294 at .
 Transcript page 1-33, lines 11-14.
 Transcript page 1-33, line 21.
 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
 Chambers v Jobling (1986) 7 NSWLR 1 at 10.
 Transcript page 1-33, lines 18-19.
 Transcript page 1-33, line 19.
 Transcript page 1-33, line 23.
 See, for example, 1-27, lines 12-13.
 Transcript page 1-27, lines 35 – 37.
 Transcript page 1-27.
 QCAT Act s 147(2).
- Published Case Name:
Burlington Realty Pty Ltd t/as Belle Property Paddington v Fiona McComb
- Shortened Case Name:
Burlington Realty Pty Ltd v McComb
 QCATA 110
Senior Member Stilgoe
05 Jul 2016