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- Appeal Determined (QCA)
Noffke v Oceanside Management Pty Ltd QCATA 6
Noffke v Oceanside Management Pty Ltd t/as Broadwater Apartments  QCATA 6
Oceanside Management Pty Ltd t/as Broadwater Apartments
On the papers
Senior Member Stilgoe OAM
17 January 2017
APPEAL – LEAVE TO APPEAL – LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – RECOVERY OF POSSESSION – where termination for excessive hardship – where application for compensation – where compensation ordered – whether grounds for leave to appeal
APPEAL – LEAVE TO APPEAL – QCAT – POWERS AND DUTIES – REASONS – PROCEDURAL FAIRNESS AND NATURAL JUSTICE – where application for compensation – where respondent submitted compensation not payable – where tribunal’s reasons did not address respondent’s submissions – where breach of natural justice – where error of law
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Pickering v McArthur  QCA 294
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
- Allan Noffke has suffered from severe health problems over the last couple of years which means he can no longer live in his rented home. His tenancy agreement was due to end on 12 December 2016 but, by notice dated 17 May 2016 to Oceanside Management Pty Ltd t/as Broadwater Apartments, he advised that he intended to terminate the tenancy on 9 June 2016.
- On 8 June 2016, Mr Noffke applied to the tribunal for a termination of the tenancy agreement due to excessive hardship. The tribunal made that order on 20 June 2016, with the termination effective from 21 June 2016.
- Broadwater Apartments then applied for part of the bond to be paid to it as compensation for early termination. The tribunal ordered that Mr Noffke pay $6 in unpaid rent, a break lease fee of $456 ($415 plus GST) and the filing fee of $63.20.
- Mr Noffke 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.
- Mr Noffke says the tribunal failed to apply the relevant law. He says that the tenancy agreement was lawfully terminated under s 277 of Residential Tenancies and Rooming Accommodation Act 2009 (Qld) (RTRA Act). He says that clause 7 of the tenancy agreement, which allows Broadwater Apartments to charge a break lease fee, does not apply because the tenancy agreement was lawfully terminated. He says, therefore, that Broadwater Apartments was not entitled to compensation.
- Unfortunately, even though these matters were argued before the tribunal below, the tribunal’s reasons are silent about the relationship between the tribunal’s order, s 277 and clause 7.
- The tribunal should have addressed Mr Noffke’s submissions in its reasons. As Dr Forbes, a member of this tribunal has observed, there is a strong case for treating reasons for a decision as a necessary element of natural justice, which is an error of law for which leave to appeal should be granted.
- Although leave to appeal should be granted, the appeal should be dismissed. Section 350(2) of the RTRA Act provides, specifically, that if the tribunal terminates a tenancy agreement because of excessive hardship, it may also make an order it considers appropriate, including an order that the a party pay compensation for the loss of tenancy. That section operates to negate Mr Noffke’s submission that no compensation was payable because the tenancy agreement was lawfully terminated.
- The appeal should be dismissed.
- Published Case Name:
Allan Noffke v Oceanside Management Pty Ltd t/as Broadwater Apartments
- Shortened Case Name:
Noffke v Oceanside Management Pty Ltd
 QCATA 6
Senior Member Stilgoe
17 Jan 2017
|Event||Citation or File||Date||Notes|
|Primary Judgment||QCAT (No Citation)||20 Jun 2016||-|
|Primary Judgment|| QCATA 6||17 Jan 2017||Appeal against order to pay fees for early termination of lease.|
|Notice of Appeal Filed||File Number: CA 1388/17||14 Feb 2017||Notice of Leave to Appeal filed.|
|Appeal Determined (QCA)|| QCA 156||21 Jul 2017||Appeal against  QCATA 6 allowed: Sofronoff P and Gotterson JA and Applegarth J.|