Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Williams v Ray White Cairns Beaches[2016] QCATA 16

Williams v Ray White Cairns Beaches[2016] QCATA 16

CITATION:

Williams v Ray White Cairns Beaches [2016] QCATA 16

PARTIES:

Terrance Norman Williams

(First Applicant/Appellant)

Pamela Jean Williams

(Second Applicant/Appellant)

v

Ray White Cairns Beaches

(Respondent)

APPLICATION NUMBER:

APL387-15

MATTER TYPE:

Appeals

HEARING DATE:

12 January 2016

HEARD AT:

Brisbane 

DECISION OF:

Justice Carmody

DELIVERED ON:

22 January 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

  1. Leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – where the applicant sought leave to appeal against a decision of a Magistrate ordering the applicants to pay the respondent monies as a result of breaching a lease agreement – whether leave to appeal should be granted.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 8, 28, 61, 137, 139, 138, 142, sch 3

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), ss 4, 302, 349, 362, 404, 416

Briginshaw v Briginshaw (1938) 60 CLR 336

Bruce Moon v Office of State Revenue (unreported, Queensland Civil and Administrative Appeal Tribunal, APL213-15, 4 December 2015, Carmody J)

Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53

Chambers v Jobling (1986) 7 NSWLR 1

Dearman v Dearman (1908) 7 CLR 549

Devries v Australian National Railways Commission (1993) 177 CLR 427

Eileen Reed v Department of Public Housing and Works (unreported, Queensland Civil and Administrative Appeal Tribunal, APL484-15, 20 November 2015, President Thomas)

Fox v Percy (2003) 214 CLR 118

Hampton Court Ltd v Crooks (1957) 97 CLR 367

Lowe v Aspley [2010] QCATA 59

Mobile Building System International Pty Ltd v Hua [2014] QCATA 336

National Australia Bank Ltd v KDS Construction Services Pty Ltd (1987) 163 CLR 668

Park v Brothers [2005] HCA 73

Pochi v Minister for Immigration (1979) 36 FLR 482

Port Jacks Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1978) 139 CLR 231

Reihana v Beenleigh Show Society [2015] QCATA 170

Wollongong v Metwally (No 2) (1985) 59 ALJR 481

APPEARANCES and REPRESENTATION (if any):

APPLICANT/APPELLANT

P Williams for the first and second applicant

RESPONDENT

J Indorato for the applicant

REASONS FOR DECISION

  1. [1]
    This is an application for leave to appeal and appeal filed by the applicant on 17 September 2015 against a decision of Magistrate Bentley, exercising the minor civil dispute jurisdiction of QCAT, dated 27 July 2015. 
  2. [2]
    The application seeks to have the original decision set aside and for the matter to be remitted to be reheard by a differently constituted Tribunal.

FACTUAL MATRIX AND PROCEDURAL HISTORY

  1. [3]
    The applicants entered a lease agreement with the owner of a residential premises, represented by the respondent real estate agency, on 25 July 2014. Consideration for exclusive possession was rent at $520.00 per week.  The lease was set to expire on 25 July 2015. 
  2. [4]
    In March 2015 the respondent informed the applicants that the lease would not be renewed.  The applicants located and purchased land for permanent accommodation.  The applicants vacated the rental property on 3 May 2015, after serving a Notice of Intention to Leave on 7 April 2015. 
  3. [5]
    The applicants filed an application with QCAT on 30 June 2015 for the recovery of a bond, valued at $2,080.00, retained by the Residential Tenancies Authority.  The applicants accepted that they owed $1,188.58 in outstanding rental payments, up to the date of vacation on 3 May 2015.  However, the applicants claim they were entitled to an additional $357.00 for repairs performed to kitchen draws in October 2014.
  4. [6]
    The net amount claimed by the applicants in the minor civil dispute application was $1,358.42.
  5. [7]
    The application was listed to be heard on 14 July 2015.  On the date of the hearing, the respondent filed a counter-application with QCAT. The counter-application filed by the respondent claimed $6,242.43, comprising of:
    1. $5,571.43 for rent between 18 April 2015 and 30 June 2015;
    2. $572.00 for break-lease fee, which is one week’s rent plus GST;
    3. $99.00 for the advertising fee.
  6. [8]
    The amount claimed by the respondent, subtracting the bond withheld, was $3,941.43.
  7. [9]
    The counter-application was accepted by the Magistrate, and the hearing of both the application and counter-application was adjourned to 27 July 2015.
  8. [10]
    Both parties made an appearance at the hearing on 27 July 2015.  The Transcript indicates the parties were provided with an adequate opportunity to be heard. 
  9. [11]
    The Magistrate found that:
    1. the applicants’ claim for repairs performed in October 2014, amounting to $357.00, was refused because it was out of time;
    2. the respondent’s claim for rent was reduced by two weeks as a result of a two week delay in listing the premises.  Therefore, the respondent was awarded:
      1. $1,188.57 for outstanding rent between 7 April 2015 and 3 March 2015;
      2. $3,342.86 for loss of rental income between 4 May 2015 and 30 June 2015 (reduced by two weeks due to the delay in listing). 
    3. the respondent’s claim for the break-lease fee of $357.00 was allowed because the applicants failed to comply with statutory requirements for early termination of a lease;
    4. the respondent’s claimed for $99.00 for advertising fees was allowed because the applicants failed to comply with statutory requirements for early termination of a lease.

JURISDICTION

  1. [12]
    Sections 26, 27 and 142 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) define the jurisdiction of the Appeal Tribunal.  The Appeal Tribunal has jurisdiction to hear an appeal against a decision of the Tribunal, exercising its original jurisdiction,[1] if a judicial member did not constitute the Tribunal in the proceeding.[2]
  2. [13]
    The applicants will require leave because the applicants are appealing a decision of the Tribunal exercising its minor civil dispute jurisdiction.[3]
  3. [14]
    The grounds of appeal nominated by the applicants are questions of law and questions of fact.

PROCEDURE

  1. [15]
    The applicants’ enumerated grounds of appeal raise questions of fact, or mixed questions of law and fact. The Appeal Tribunal will not interfere with the findings of fact of the original decision-maker if the evidence is capable of supporting their conclusions.[4] 
  2. [16]
    However, if the Appeal Tribunal finds that the original decision-maker was in error, making due allowance for the considerable advantages of the original decision-maker in directly observing the evidence and the disadvantage of the Appeal Tribunal in proceeding primarily from the record, the Appeal Tribunal must not eschew give effect its own determinations.[5]
  3. [17]
    If the findings of fact are based on evidence in respect of which the original decision-maker possesses a manifest and incontrovertible advantage, such as the credibility of witnesses appearing to give oral testimony, the Appeal Tribunal will only interfere with the decision of the original decision-maker where it is “contrary to compelling inferences”,[6] “glaringly improbable”,[7] or “inconsistent with facts incontrovertibly established by the evidence”.[8]

GROUNDS OF APPEAL

  1. [18]
    The applicants enumerated numerous grounds of appeal, including:
    1. the Magistrate erred in accepting the late counter-application of the respondent;
    2. the Magistrate erred in accepting the counter-application of the respondent without first referring the matter to conciliation under s 404 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld);
    3. the Magistrate erred in failing to correctly apply the duty to mitigate loss in s 362(3)(b) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld);
    4. the Magistrate committed an error of fact in concluding that the delay in advertising was two weeks, as opposed some other unparticularised period not nominated by the applicants;
    5. the Magistrate committed an error of law by failing to apply s 4 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) to conclude that previous conduct of the owners of the premises in respect of a Notice to Remedy Breach, amounting to a reprisal, should have constituted unconscionable conduct alleviating the applicants’ obligation to comply with the statutory requirements relating to a Notice of Intention to Leave;
    6. the Magistrate erred in failing to apply the rules of evidence regarding assessment of the relative probative value of evidence, as required in Pochi v Minister for Immigration (1979) 36 FLR 482, 492, which constituted a deprivation of natural justice; and
    7. the Magistrate committed a mixed error of fact and law by failing to appreciate the significance of renovations performed by the respondent after vacation of occupation by the applicants as indicating that there was further delay in advertising the premises. 

First Ground of Appeal

  1. [19]
    The applicants claim the Magistrate erred in accepting the late counter-application of the respondent.  The applicants have not asserted that the application was outside any prescribed statutory time limits. 
  2. [20]
    The application and counter-application involved common questions of fact and law, such as the liability of the respondent for economic loss caused by the applicants by terminating the lease early.  Refusing to accept the counter-application would result in the multiplication of legal proceedings, and generate a risk of inconsistent judicial decisions on mutual issues.  If incompatible judicial findings were made in the bifurcated proceedings, it would violate judicial comity and bring the administration of justice into disrepute.  Such consequences are relevant to any exercise of discretion. 
  3. [21]
    Furthermore, the bond monies claimed by the applicants are intended to secure any monies claimed by the respondent.  Maintaining separate proceedings for the application and counter-application would prevent the respondent from seeking to claim any offset against the bond monies, and subvert the function of the bond in securing the lessor of premises.
  4. [22]
    The Magistrate was entitled to exercise his Honour’s discretion to permit the late counter-application. His Honour exercised his discretion in a manner consisted with established principle and precedent.
  5. [23]
    Leave to appeal should not be granted on this ground.

Second Ground of Appeal

  1. [24]
    The applicants claim the Magistrate erred in accepting the counter-application without any prior conciliation having been held under s 404 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).
  2. [25]
    An appellant cannot raise a point or objection for the first time on appeal,[9] unless the evidence for the point has been established beyond controversy, or the point is one of law or construction which is incontrovertibly correct.[10] 
  3. [26]
    The applicants failed to directly request the Magistrate to refer the matter to conciliation in the original proceedings.  This deprived the Magistrate of the opportunity to consider the appropriateness of such action under Chapter 6, Part 1 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).  On this basis, the Appeal Tribunal doubts whether the applicants should be permitted to ambush the respondent with this ground of appeal. 
  4. [27]
    The applicants’ failure to raise a prompt objection in the original proceedings about conciliation might be construed of a waiver of such a procedural requirement under the Act. The applicants’ response to the respondent’s counter-application demonstrates that the applicants and respondent regarded further attempts at conciliation as being futile or inefficacious.
  5. [28]
    Section 404 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) is permissive, not mandatory.  However, s 416(1) provides that:

The lessor or tenant under a residential tenancy agreement… may apply under this Act to a tribunal about an issue only if the applicant has first made a dispute resolution request about the issue and… the conciliation process has ended without a conciliated resolution…or a conciliated resolution is reached but the applicant reasonably believes the other party has breached the conciliation agreement.[11]

  1. [29]
    The noun “issue” is not defined under the Tenancies and Rooming Accommodation Act 2008 (Qld).  The term should be construed in accordance with its natural and ordinary meaning. 
  2. [30]
    “Issue” refers to a specific and defined subject matter of dispute between two or more parties.  An application may raise multiple issues.  Issues may be interconnected and interdependent.  Merely raising the issue of bond recovery does not, necessarily, raise the issue of compensation for loss of rental income. 
  3. [31]
    The parties attempted conciliation through the Residential Tenancies Authority’s dispute resolution process.  An acknowledgement of a dispute resolution request was issued by the Residential Tenancies Authority on 21 May 2015.  The particulars of the dispute refer to: (a) the advertising fee; (b) the break-lease fee; and (c) rental arrears which were still accruing.
  4. [32]
    On 22 June 2015 the Residential Tenancies Authority issued a notice to the applicants and respondent that a conciliated agreement could not be reached to resolve the dispute “regarding the rental bond”.  This conciliation undoubtedly included the matters averted to regarding the advertising fee, break-lease fee, and rental arrears. 
  5. [33]
    The issues raised in the counter-application, therefore, were the subject of an unsuccessful dispute resolution process.  This permitted a subsequent application or counter-application to the Tribunal under s 416(1)(a)(iii) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). 
  6. [34]
    Leave to appeal should not be granted on this ground.

Third Ground of Appeal

  1. [35]
    The applicants claim the Magistrate erred in applying the duty to mitigate under s 362(3)(b) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). 
  2. [36]
    The substance of the applicants’ submission is that the respondent failed to mitigate his loss by delaying in advertising the premises.  Because the respondent failed to mitigate his loss, the respondent should not have received any compensation for loss of rental income.
  3. [37]
    In support of this submission, in written submissions the applicants cited Czydel v Bertelsson.  In oral submissions, the applicants confirmed that the correct citation for the authority is Bertelsen v Czdel [2014] QCATA 165.
  4. [38]
    In particular, the applicants relied on [13] of Czdel, where Senior Member Stilgoe held that:

The learned Adjudicator considered that Ms Bertelsen should have rerented the property within six weeks. He came to that view based on his experience of other claims for loss of rent within the tribunal. There is no evidence to contradict the learned Adjudicator‘s view. I am satisfied that the learned Adjudicator’s finding was reasonable and I can find no reason to come to a contrary view.

  1. [39]
    The Appeal Tribunal is somewhat perplexed regarding the applicants’ perceived relevance of the abovementioned passage. The applicants appear to be suggesting that because the Adjudicator in Czdel held that the lessor should have re-leased the premises within six weeks, and that such a finding was upheld on appeal, the Magistrate should have found the same in this case, and that the failure to find the same amounts to error. 
  2. [40]
    The Appeal Tribunal observes that this is not authority for the proposition advanced in the written submissions of the applicants.  To the extent that the applicants have referred to Czdel for the modified purpose of supporting a contention that the Magistrate erred by not finding that the respondent had failed to mitigate its loss after six weeks had elapsed following vacation of the property, the applicants’ submission is misconceived. 
  3. [41]
    It is axiomatic that stare decisis applies only in respect of propositions of law constituting the ratio decidendi of a decision. Conclusions of fact by a superior tribunal or court in the judicial hierarchy does not have the effect of binding an inferior tribunal or court to such a findings, especially in different proceedings.  Identifying that a different factual conclusion was reached in a similar case is not sufficient to give rise to appellable error.
  4. [42]
    Findings of fact may be modified by subtle changes in the circumstances or evidence in different cases.  In the context of loss mitigation by re-leasing a residential domicile, it may depend on:
    1. prevailing economic or market conditions;
    2. reasonable industry practices and custom;
    3. the nature, size, location, and condition of the premises;
    4. the nature, scope, and size of the target market;
    5. the appropriate or reasonable rental value for the premises;
    6. the appropriate or reasonable terms and duration of a tenancy, having regard to the nature and characteristics of the premises;
    7. the effectiveness, and period, of any notice provided by the lessee of termination of the tenancy;
    8. the circumstances within which the tenancy was terminated, including the date on which the lessor became aware that the lessee had vacated the premises;
    9. the period of time required to restore the premises to a tenantable condition; and
    10. any other relevant circumstances.
  5. [43]
    Any one or more of the abovementioned factors may modify a finding by the Tribunal regarding the effectiveness of loss mitigation strategies employed by the respondent.  Therefore, each case will depend entirely on its facts. 
  6. [44]
    Section 362(3) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) provides that:

(3) The lessor or tenant –

  1. must take all reasonable steps to mitigate the loss or expense; and
  2. is not entitled to receive compensation for any loss or expense that could have been avoided by taking the steps.
  1. [45]
    The subject “loss or expense” is qualified by the descriptive clause “that could have been avoided by taking the steps.”  Therefore, if a lessor fails to mitigate his or her loss, the lessor is only disentitled to claim compensation for loss or expense that could have been avoided by taking such steps. 
  2. [46]
    This requires a causal connection between: (a) the failure to take reasonable steps; and (b) the portion of the loss sustained sought to be excluded.  It is reasonable to infer that a two week delay in advertising the premises resulted in a two week delay in obtaining a new tenant.
  3. [47]
    The implausible and artificial construction urged on the Tribunal by the respondent is inconsistent with the natural and ordinary meaning of s 362(3) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). 
  4. [48]
    Leave to appeal should not be granted on this ground.

Fourth Ground of Appeal

  1. [49]
    The applicants claim that the Magistrate committed an error in fact by finding that the respondent delayed in advertising the premises for two weeks.  The applicants do not particularise the period of delay which the Magistrate should have found on the basis of the evidence.
  2. [50]
    Page 10, line 16, to page 10, line 11, demonstrates that:
    1. the respondent conceded the premises was advertised late;
    2. the respondent stated that it would normally start advertising between two or three weeks before the premises became available to rent;
    3. the respondent agreed with the Magistrate that the respondent would, therefore, ordinarily have started advertising in mid-April;
    4. the Magistrate stated, and the respondent appeared to accept, that the premises was advertised “a week and a half late”;
    5. all parties accepted that the first physical inspection took place on 12 May 2015.
  3. [51]
    The Notice of Intention to Leave stated that the applicants intended to leave the premises in May.  If the respondent would ordinarily advertise two or three weeks before the premises became available to rent, which would appear standard industry practice, the respondent would have commenced advertising the premises in mid-April.
  4. [52]
    The respondent conceded that he was late.  The Magistrate suggested, and the respondent agreed, that it would have been about one and a half weeks late. This would mean that the respondent would have commenced advertising at the end of April, or the beginning of May. The first physical inspection took place on 12 May 2015.  This is around two weeks after the applicants had vacated the premises.
  5. [53]
    The applicants have not pointed to any evidence tending to establish that there was a longer period of delay in advertising. In any event, assuming that one or two weeks will ordinarily elapse between first advertising the premises and the first physical inspection, the latest that the Magistrate could have sensibly found for delay is four weeks.
  6. [54]
    It was open to the Magistrate to infer that the respondent had advertised the premises two weeks late.  This finding is not glaringly improbable, contrary to compelling inferences, or otherwise unreasonable.
  7. [55]
    Leave to appeal should not be allowed on this ground.

Fifth Ground of Appeal

  1. [56]
    The applicants claim that the Magistrate erred in failing to apply s 4 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) to ameliorate the applicants’ obligation to provide a Notice to Remedy Breach before issuing the Notice of Intention to Leave for an unremedied breach. 
  2. [57]
    The applicants claim that they were not required to issue a Notice to Remedy Breach because of prior unconscionable conduct by the applicants in issuing a Notice to Leave as a result of the applicants filing an earlier Notice to Remedy Breach.
  3. [58]
    The applicants also claimed, in their submissions to the Tribunal at first instance, that the Tribunal could waive the procedural requirement to issue a Notice to Remedy Breach under s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
  4. [59]
    The applicants have not articulated the basis on which any application of the equitable principles relating to unconscionable conduct would ameliorate her obligation to issue a Notice to Remedy Breach before the Notice of Intention to Leave. This is unsurprising, as there appears to be no recorded decisions supporting the novel proposition advanced by the applicants. 
  5. [60]
    The Appeal Tribunal refers the applicants to the decision of Deputy President Kingham DCJ in Lowe v Aspley [2010] QCATA 59, [10]-[11], where her Honour held that:

The RTRA is prescriptive about the requirements for issuing Notices and commencing proceedings. The consequences that can flow from a tenant’s failure to comply with Notices issued under the RTRA explains the degree of prescription. If the tenant fails to comply with validly issued notices, the agent is entitled to commence urgent proceedings, without the need to enter into discussions with the tenant in an effort to resolve the dispute. The end point of that process is an order to terminate the tenancy.

The requirements are not merely a matter of form; they are preconditions to QCAT’s jurisdiction to grant relief under the RTRA. The path that the agent took to proceedings in QCAT in this case required a series of steps to be taken in order. Each stood like one in a line of dominos. If one fell it brought the others down with it…

  1. [61]
    The validity of the Notice of Intention to Leave for unremedied breach, under s 302 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), is conditioned on the existence of a prior Notice to Remedy Breach. 
  2. [62]
    The absence of a Notice to Remedy Breach cannot be cured by the Tribunal exercising its jurisdiction under ss 4 or 349 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), or under s 61 of the QCAT Act.
  3. [63]
    Leave to appeal should not be granted on this ground of appeal.

Sixth Ground of Appeal

  1. [64]
    The applicants claim the Magistrate erred by denying the applicants procedural fairness by failing to apply evidentiary principles in assessing the weight given to evidence furnished by the applicants and respondent. 
  2. [65]
    The Tribunal is not bound by the rules of evidence.[12]  However, the Appeal Tribunal accepts that the Tribunal is required to assess the relative probative value of evidence adduced by the applicants and respondent.
  3. [66]
    The respondent referred to an affidavit filed the day before the hearing from a software manager regarding an events log.  The relevance of this affidavit was to prove mitigation of loss.  The applicants adduced evidence that an enquiry had taken place, and that the enquiry was missed.  An events log demonstrated the respondent attempted to contact the prospective tenant on several occasions.  The applicants stated they contacted the company which produced the software, and a representative of the company told her something.  The Magistrate declined to receive this evidence on the basis that it was oral hearsay.
  4. [67]
    The oral hearsay the applicants intended to provide suggested that the events log could be modified by the system administrator.  Even if the oral hearsay could be admitted to prove the truth of the facts it contains, establishing that the events log is capable of being modified by a system administrator is not sufficient to establish that the events log was modified by the systems administrator of the respondent.
  5. [68]
    Such an allegation is tantamount to an allegation of fraud.  As held in Briginshaw v Briginshaw (1938) 60 CLR 336, the civil standard of proof operates as a sliding scale based on the gravity of an asserted fact, and the seriousness of the consequences for finding that asserted fact.
  6. [69]
    The tenuous evidence the applicants proposed to adduce could not establish the existence of a fraudulent enterprise to modify the log of the event records system. The evidence was not probative of any other material fact, as it did not, directly or indirectly, establish any failure to mitigate loss.  The Magistrate was correct to refuse to admit the oral hearsay.
  7. [70]
    The applicants further complain regarding the Magistrate’s treatment of an email received by the prospective tenant.  The email stated ‘Apologies your earlier enquiry was missed.’ The Magistrate drew the respondent’s attention to the email, who replied that the leasing consultant is very busy, and would have simply made that statement rather than going through the effort to examine the events log report of automatic system responses.
  8. [71]
    The respondent was invited to make submissions to explain the email.  The explanation relied on evidence regarding the events log.  The Magistrate was entitled to accept the evidence of the respondent over the applicants’ claim that the respondent must have modified the events log.  This finding of fact is more plausible than an explanation involving fraud.
  9. [72]
    The applicants claim that the respondent’s evidence regarding the reasons for the applicants’ early termination of the lease were accepted by the Magistrate over the applicants’.  This is not evident from the Magistrate’s reasons; the Magistrate made no finding regarding the reason the applicants gave the Notice of Intention to Leave, and such a finding was not required.  
  10. [73]
    The applicants complain about the respondent not being aware of the relationship between the lessor and the gardener.  However: (a) no specific finding was made by the Magistrate on this issue; (b) this fact is of little relevance to the contentious issues; and (c) no finding of fact regarding the relationship between the lessor and the gardener was necessary.
  11. [74]
    The complaints made by the applicants under this ground of appeal disclose no factual or legal error in the reasoning of the Magistrate, or any failure to provide natural justice.
  12. [75]
    Leave should not be granted on this ground of appeal.

Seventh Ground of Appeal

  1. [76]
    The applicants claim the Magistrate erred by construing renovation works and improvements performed after the applicants vacated the premises as mitigating loss. The applicants appear to further assert that the renovations constituted circumstantial evidence from which it could be inferred that the respondent delayed for longer than two weeks in advertising.
  2. [77]
    A careful reading of the decision of the Magistrates demonstrates that his Honour did not find that the renovations were a form of loss mitigation. 
  3. [78]
    Rather, the Magistrate concluded that had the respondent failed to seek a tenant during the renovation period, the respondent would have failed to mitigate its loss. The error alleged by the applicants is unfounded.
  4. [79]
    The applicants claim that the renovations explain the existence of delay by the respondent in advertising the premises. This is an explanans searching for an explanandum.  That is, the applicants’ explanation only makes sense if one first accepts that the respondent delayed for more than two weeks in advertising for a new tenant.  The mere proffering of such an explanation – which presumes the existence of the fact explained – cannot operate as inductive evidence from which one might infer the existence of such fact.
  5. [80]
    Leave should not be granted on this ground of appeal.

CONCLUSION

  1. [81]
    The applicants have failed to establish a reasonably arguable case that the Magistrate’s decision was infected by legal, factual or discretionary error.

ORDERS

  1. [82]
    It is the decision of the Appeal Tribunal that leave to appeal is refused.

Footnotes

[1] See: Mobile Building System International Pty Ltd v Hua [2014] QCATA 336; Eileen Reed v Department of Public Housing and Works (unreported, Queensland Civil and Administrative Appeal Tribunal, APL484-15, 20 November 2015, President Thomas); Bruce Moon v Office of State Revenue (unreported, Queensland Civil and Administrative Appeal Tribunal, APL213-15, 4 December 2015, Carmody J); Reihana v Beenleigh Show Society [2015] QCATA 170.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 142(1). Note that s 8 and Sch 3 of the Act define “judicial member” to exclude a Magistrate.

[3]Ibid, s 142(3)(a)(i).  “Minor civil dispute” is defined in s 8 and sch 3 of the QCAT Act.  “Prescribed amount” is defined in s 8 and sch 3 of the QCAT Act as $25,000.

[4] Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-126.

[5] Fox v Percy (2003) 214 CLR 118, 218; Chambers v Jobling (1986) 7 NSWLR 1, 10.

[6]Chambers v Jobling (1986) 7 NSWLR 1, 10.

[7] Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53, 57.

[8] Devries v Australian National Railways Commission (1993) 177 CLR 427, 479.

[9] Park v Brothers [2005] HCA 73; Wollongong v Metwally (No 2) (1985) 59 ALJR 481, 483.

[10] National Australia Bank Ltd v KDS Construction Services Pty Ltd (1987) 163 CLR 668, 679-680; Hampton Court Ltd v Crooks (1957) 97 CLR 367.

[11] Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 416(1)(a)-(b).

[12]Queensland Civil and Administrative Tribunal 2008 (Qld), ss 28(1), 28(3)(b).

Close

Editorial Notes

  • Published Case Name:

    Terrance Norman Williams and Pamela Jean Williams v Ray White Cairns Beaches

  • Shortened Case Name:

    Williams v Ray White Cairns Beaches

  • MNC:

    [2016] QCATA 16

  • Court:

    QCATA

  • Judge(s):

    Carmody J

  • Date:

    22 Jan 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.