Seo v Kent Southport Realty Pty Ltd t/a Shores Realty
[2018] QCATA 125
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- Seo v Kent Southport Realty Pty Ltd t/a Shores Realty[2018] QCATA 125
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Seo v Kent Southport Realty Pty Ltd t/a Shores Realty[2018] QCATA 125
Seo v Kent Southport Realty Pty Ltd t/a Shores Realty[2018] QCATA 125
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Seo v Kent Southport Realty Pty Ltd t/a Shores Realty [2018] QCATA 125 |
PARTIES: | JAY SEO (appellant) v KENT SOUTHPORT REALTY PTY LTD t/a SHORES REALTY (respondent) |
APPLICATION NO/S: | APL050-18 |
ORIGINATING APPLICATION NO/S: | MCDT39-18 (Southport) |
MATTER TYPE: | Appeals |
DELIVERED ON: | 30 August 2018 |
HEARING DATE: | 27 August 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Dr J R Forbes, Member |
ORDERS: | The application for leave to appeal is dismissed. |
CATCHWORDS: | LEAVE TO APPEAL – GENERAL PRINCIPLES – WHEN APPEAL LIES – NATURE AND LIMITATIONS OF LEAVE APPLICATION – Residential Tenancies and Rooming Accommodation Act 2008 (Qld) – objectionable behaviour – proof of same – frequent and recurrent behaviour Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 279, 336, 345 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Cutbush v Team Maree Property Service (No 2) [2010] QCATA 20 Department of Housing and Public Works v Turnbull [2014] QCAT 442 Etienne v Hamlet [2017] QCA 5 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Tut v Department of Communities and Housing [2012] QCATA 196 W, In re (an infant) [1971] AC 682 |
APPEARANCES & REPRESENTATION: |
|
The 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 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTA) seeks to balance the interests of landlords and tenants and tenants inter se. A tenant may be evicted if this tribunal finds that he or she is guilty of `objectionable behaviour’ in `harass[ing], intimidat[ing] or verbally abus[ing] ... a person occupying ... premises nearby, or is causing, or has caused, a serious nuisance to persons occupying premises nearby’[1] to an extent that justifies terminating the offender’s tenancy agreement.[2]
- [2]Here the primary tribunal, on the application of the landlord’s agent, made a finding of objectionable behaviour against the appellant for repeatedly switching off the power supply of another tenant (`the other tenant’) in the same building.
- [3]In deciding whether the behaviour complained of warrants a termination order the tribunal may have regard to its frequency;[3] if it consists of harassment, intimidation or abuse, its seriousness is to be considered.[4] Any other relevant circumstances are at the tribunal’s discretion.[5] It seems curious that the permissive word `may’ governs both limbs of subsection 345(2), but as a matter of common sense, seriousness is a crucial issue.
- [4]The other tenant occupied separate quarters immediately above the appellant’s.[6] However, for some reason that need not be explored, the electrical switchboard for both units was situated in the one occupied by the appellant.
- [5]According to the appellant, the other tenant frequently smoked cigarettes inside his unit, or on a balcony outside. The appellant says that the other tenant’s smoke infiltrated the appellant’s unit, seriously affecting his health. But in the absence of any clear and unequivocal medical support, the appellant’s litany of alleged smoke-induced ailments may seem a trifle hyperbolic:
We[7] were coughing, wheezing, had difficulty breathing, burning throat, waking up through the night ... we were very sick every night ... I began to feel a lot of pain in my PIP finger joints ... it is a common symptom of rheumatoid arthritis which is caused by extreme exposure to smoke in genetically-susceptible individuals. ... My blood tests showed some issues, which is the first time I’ve ever had abnormal blood test results ... tested positive for an autoimmune marker ... I also developed acid reflux (GERD) because the smoke caused my lower esophageal sphincter to relax ...[8]
Order
- [6]Most of these complaints are matters for expert opinion, which the appellant is not qualified to express. The appellant led no medical evidence to confirm them; a brief note by a Dr Punystrong dated 8 October 2017 merely records the appellant’s complaints about smoke, but makes no finding or diagnosis beyond `lungs clear today’. There is also a copy of a QML blood test, unaccompanied by any medical interpretation or report. The landlord’s agent claims that it asked the appellant to provide a medical report, but none was forthcoming.[9]
- [7]
- [8]The appellant freely admitted that he switched his neighbour’s electricity off several times[12], but `only some of it’.[13] At all events, there is uncontradicted evidence that he turned off quite enough of it to prevent the other tenant cooking, and causing the contents of his refrigerator to decay.[14] Soon the other tenant vacated the premises, complaining of stress and fear of further harassment by the appellant.[15] However, the appellant’s attitude is that he did nothing objectionable.[16]
- [9]The learned adjudicator pointed out that, if there was substance in the appellant’s complaint of a smoking nuisance, there were lawful remedies available to him, instead of taking `matters into his own hands’.[17] The adjudicator held that the appellant’s actions amounted to `harassment and/or nuisance”[18], and that a termination order was warranted.
- [10]The other tenant also objected that the appellant photographed him in his unit from a position across the street. Unauthorised photography does not necessarily amount to objectionable behaviour[19] but in this case it may be regarded as an aggravating factor.
- [11]The appellant baldly asserts that section 297 of the RTA is irrelevant. This submission flies in the face of other evidence, including the appellant’s own admissions. In support of this untenable proposition the appellant argues, first, that the complainant is not on premises `nearby’. In fact, this patently incorrect; the respective units, albeit in the same apartment building, were separate `habitable abodes’[20]. Second, the appellant contends that the nuisance, if any, must be caused to `persons’,[21] whereas the complainant is singular. This quibble overlooks the fact that section 297 also speaks of harassment of `a person’,[22] and the tribunal has found him guilty of harassment.
- [12]The appellant argues, further, that no account has been taken of section 336[23], in that there is no evidence that the agent, as distinct from the landlord, was entitled to seek a termination order. This argument is misconceived. At common law, the agent represents the principal, and clause 43(2) of the tenancy agreement[24] confirms this principle. There is no substance in this submission.
- [13]The appellant asserts that section 345 was “not satisfied and not properly considered by the tribunal”. The first assertion is a mixed question of fact and law, which is one for the tribunal to decide. The second assertion is unsupported by any particulars. On a reading of the transcript, it is clear that the adjudicator was satisfied that the appellant was guilty of `harassment and/or nuisance’[25] within the meaning of section 297, and that his misbehaviour was sufficiently serious to warrant termination of his tenancy[26].
- [14]The task imposed by section 297 is to strike a proper balance between the interest of the other tenant in the quiet enjoyment of a tenancy, and the appellant’s concern to continue his occupancy.[27]
- [15]The seriousness of objectionable conduct is a judgment of fact and degree, to be made in the reasonable discretion of the tribunal. As Senior Member Oliver observed in Tut v Department of Communities and Housing,[28] the exercise of that discretion will not be overridden by an appeal tribunal unless it is demonstrated that the adjudicator acted on a wrong principle, or allowed extraneous or relevant matters to affect him, or made a substantial mistake of fact.
- [16]It must be emphasised that an application for leave to appeal is not a retrial at large. It is not a function of the appeal tribunal to `second guess’ matters of fact, credit or judgmental discretion that are the prerogative of the original decision maker. The task of the appellant is to establish an arguable case that the primary judge has made a significant error of law (an expression that includes fact-finding or an exercise of discretion that is irrational.
- [17]It is not appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it deserves. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available.[29] Where reasonable minds may differ, a decision is not erroneous simply because one conclusion has been preferred to another possible view.[30]
- [18]It is clear that the adjudicator preferred the evidence of the applicant agent to that of the appellant, finding that the appellant is guilty of serious objectionable conduct. Importantly, the RTA directs the tribunal, on an issue of seriousness, to have regard to `whether the behaviour was recurrent and, if [so], the frequency of the recurrences’.[31] The appellant, far from regretting his high-handed, not to say outrageous conduct, openly admits it and seeks to justify it. It may be inferred that, in similar circumstances, his conduct would be similarly offensive. By no stretch of the imagination can the adjudicator’s decision, on the evidence, be regarded as unreasonable or wrong in law. Indeed, it is difficult to imagine that he would arrive at any other conclusion.
- [19]This application for leave is without merit and should be dismissed.
- [20]The application for leave to appeal is dismissed.
Footnotes
[1]RTA s 297(1).
[2]RTA s 345(2).
[3]RTA s 345(2)(a).
[4]RTA s 345(2)(b).
[5]RTA s 345(3).
[6]Transcript of hearing 30 January 2018,(`T’) page 10 line 46 (Adjudicator).
[7]There were two occupants of the appellant’s unit.
[8]Written submissions of appellant, unsigned, undated.
[9]Submissions of respondent filed 15 May 2018.
[10]Letter of other tenant’s solicitor to appellant 8 January 2018; Text message, other tenant to appellant 10 October 2017.
[11]T page 4 lines 27-28; email Redward to appellant 2 January 2018.
[12]T page 10 line 17; page 12 lines 41-42. Several occasions are specified in a letter of solicitors for the complainant dated 8 January 2018.
[13]T page 11 lines 30-31.
[14]Email Braun to agents 3 January 2018.
[15]Email other tenant to agent 4 January 2018; T page 11 lines 16-18.
[16]T page 7 line 22.
[17]T page 8 lines 3-4; T page 14 lines 3-5. See Etienne v Hamlet [2017] QCA 5.
[18]T page 14 lines 3-5.
[19]Cutbush v Team Maree Property Service (No 2) [2010] QCATA 20.
[20]T 10 line 46 (Adjudicator).
[21]RTA s 297(1)(b)..
[22]RTA s 297(1)(a)(ii).
[23]Applications to tribunal.
[24]RTA Form 18a, dated 25 August 2017.
[25]T page 14 lines 4-5.
[26]Within the meaning of s 345(1)(b).
[27]Department of Housing and Public Works v Turnbull [2014] QCAT 442 at [31].
[28][2012] QCATA 196 at [11].
[29]Fox v Percy (2003) 214 CLR 118 at 125-126.
[30]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.
[31]RTA s 345(2)(a).