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Lockhard v Chastre QCATA 102
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Lockhard v Chastre  QCATA 102
ORIGINATING APPLICATION NO/S:
21 June 2019
On the papers
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where application against the exercise of a statutory discretion based on alleged errors of fact – where test for disturbing findings not met – where discretionary choice within range of permissible options – where leave refused for failure to satisfy criteria for a grant.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 13, 32
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 277(4), 327, 331, 332, 362(3), 419, 420, 421
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
- The question is whether there are grounds for a grant of leave to appeal the dismissal of a lessor’s compensation claim for post break lease rent under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act).
- The fixed term tenancy between the parties terminated on the stated end date pursuant to ss 277(4), 327, 331 and 332 RTRA Act.
- The premises were advertised for reletting from the handover date initially at the same rent and then a reduced rate. After nine (9) failed inspections the premises were leased to a new tenant on 4 May 2018.
- Under ss 419 and 420 RTRA Act a lessor may apply to the tribunal for a compensation order within six (6) months of a claimed breach of the terms of the tenancy agreement including where a the tenant hands over the premises in a way permitted by the RTRA Act before the end of fixed term.
- Subject to the mandatory considerations in s 421 RTRA Act the tribunal has a discretion to order or refuse compensation for expectation loss including rent payable under the agreement but unpaid.
- By virtue of s 362(3) RTRA Act a lessor is not entitled to receive compensation for any loss or expense that could have been avoided by taking reasonable steps to mitigate.
- The applicant claimed for spruce clean prior to new tenants – $110; pool chemical balance owing – $98.50; garden maintenance – $70; application fee – $116.40 and $2,862.76 unpaid rent (“rent arrears”) from the handover day to when the new tenancy started or 8 days at the old rent of $580 per week = $662.86 plus 28 days at the reduced rate of $550 per week = $2,200.
- The respondent argued that their obligation to pay rent ceased when the applicant acted unreasonably and failed to mitigate his loss in not accepting an earlier application before it was withdrawn.
- The tribunal refused to order compensation.
- Relevantly, the tribunal’s reasons for dismissing the application were given at T1-18:10-30:
Lessor has a duty to mitigate his losses.
In the context of this particular property and its place in the market … the property is in the higher end of the market and is not attractive to a particularly broad market.
In that context the lessor would know the prospective tenants would be few on the ground. To wait from 9 March to 22 March in the hope of securing another suitable tenant with an inside dog, in my view and in my finding was unreasonable.
The dog issue was not an actual deal-breaker for the lessor, as he ultimately accepted the dog, but he simply wished to wait for a tenant without a dog, and that was something that he wished to do is his own advantage.
… the lessor has not mitigated his losses by not accepting the (6 March application) sooner.
Had the lessor acted reasonably, the losses would not have been incurred by him.
- The agent Rent City contends that reletting is at the lessor’s absolute discretion and it was reasonable for him to hold out for two weeks in the hope of getting a tenant with an outside dog to protect the polished floors of the premises. There is no allegation that the tribunal failed to take a mandatory consideration into account.
- The reasonableness of the steps the lessor took to mitigate the loss or expense in issue is a contestable question of fact with no uniquely right answer.
- Leave to appeal is not warranted for mere disagreement with the decision or doubts about the findings on which it is based. Some specific reasoning error causing substantial injustice is required.
- Tribunal findings or inferences of fact of this kind are not in jeopardy of being disturbed on appeal unless they are irrational, illogical or contrary to the only reasonable conclusion open on the available evidence.
- The applicant has failed to carry the burden of demonstrating any recognised category of vitiating factor such as acting on a wrong principle, mistaken understanding, considering irrelevant matters or ignoring relevant ones or plain injustice.
- Accordingly, the order in issue is unimpeachable on appeal because it was evidence based and is capable of being considered a fair and equitable one for resolving the parties dispute within s 13 QCAT Act. The application for leave is refused.
 Transcript 18 June 2018 T1-6:30-45.
- Published Case Name:
Lockhard v Chastre
- Shortened Case Name:
Lockhard v Chastre
 QCATA 102
21 Jun 2019