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- Unreported Judgment
Lawrence v Gold Coast Property Expo QCATA 133
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Lawrence v Gold Coast Property Expo  QCATA 133
gold coast property expo
5 September 2019
On the papers
Acting Senior Member Browne
APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – where tenancy ended early by tenant – where the tenant disputed the landlord’s claim for a break lease fee – where compensation awarded – where the landlord claimed outstanding rent – where an amount for outstanding rent awarded – whether grounds for leave to appeal – whether grounds to rely upon fresh evidence – consideration of general principles for granting leave to appeal – whether leave should be given to rely upon fresh evidence
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 142(3)(i), s 147(3)(b)
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 32, s 94, s 185, s 419
Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404
Pickering v McArthur  QCA 294
REASONS FOR DECISION
- Stephen Lawrence was the tenant of a property on the Gold Coast under a fixed term agreement until he decided to end the tenancy and leave the property early.
- Although there was no dispute about ending the tenancy early, there was, however, a dispute about the payment of a break lease fee and rental owing.
- Mr Lawrence applied to the Tribunal for an order that the reasonable costs associated with reletting the premises be calculated at $220 and that the amount of $220 be taken from the remaining bond held. The respondent counter-claimed for outstanding rental, the respondent’s costs in attending the Tribunal hearing and the filing fee.
- Two Justices of the Peace sitting in the Tribunal’s busy minor civil disputes jurisdiction made final orders about the disputed claims. Relevantly, the Tribunal found that the Landlord is entitled to the amount of $440 in compensation to be paid out of the bond with the balance payable to Mr Lawrence. The Tribunal also found that there was unpaid rental in the amount of $795 for the period from 20 September 2018 to midnight on 26 September 2019, inclusive. The Tribunal was not satisfied, however, that the respondent was entitled to claim its costs in attending the Tribunal hearing in the amount of $240, but did order Mr Lawrence to pay the respondent’s filing fees in the amount of $120.50.
- Mr Lawrence seeks leave to appeal the Tribunal’s decision. Mr Lawrence says that there is an error in the Tribunal’s calculation of the money payable to the respondent by reason of the Tribunal’s failure to take into account an earlier payment of $874.50 for ‘break lease fee’ made on 15 September 2018. Mr Lawrence contends that the Tribunal effectively accepted the payment of $874.50 as a break lease fee despite its finding that compensation in the amount of $440 is payable to the respondent. Mr Lawrence says that the Tribunal erred in awarding costs of the filing fees to the respondent on the basis that both parties should be responsible for their own costs. Further, Mr Lawrence contends that there was no rental arrears and the Tribunal should order a refund of the overpayment of rent in the amount of $79.50.
- 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 according to general principles such as 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.
- There is a further issue to be considered by the Appeal Tribunal in the disposition of the matter. That is, whether leave to rely upon fresh evidence should be granted. Mr Lawrence seeks leave to rely upon two documents identified as ‘a list of payments made by myself as taken from my bank statements showing the receipt numbers’ and the tenant ledger that he says was provided to him by the respondent. Mr Lawrence says that he was not given an opportunity in the hearing below to present an argument in relation to the calculation of the rent paid by him. Mr Lawrence says that the documents are critical and support his submission that there has been over payment of rent on the basis that the break lease fee payable by him, as decided by the Tribunal, is $440.
- For reasons explained below, I am not persuaded that leave to rely upon fresh evidence should be granted. I am not satisfied that the documents were not reasonably available at the time the proceeding was heard and determined; and that the evidence will probably have an important impact on the result of the matter. The application for leave to rely upon fresh evidence is refused.
Was there an error in the calculation of rental payable?
- Mr Lawrence does not challenge the Tribunal’s finding that the amount of compensation payable to the respondent is $440. Mr Lawrence’s contention is that there was a failure by the Tribunal to take into account an earlier payment by him of $874.50 as reflected in the tenant’s ledger. Mr Lawrence says that the Tribunal has simply failed to take that payment into account and effectively accepted the payment as a break lease fee notwithstanding its finding that the amount of $440 for compensation is payable to the respondent. Further, Mr Lawrence says that the Tribunal should have treated the payment of $874.50 as rent.
- The tenant ledger shows that an amount of $874.50 for ‘break lease fee’ was paid by Mr Lawrence on 12 September 2018. The circumstances surrounding the payment of that amount was considered in the hearing at first instance. Mr Lawrence confirmed that he paid $874.50 as requested by the respondent not because the Landlord is entitled to a break lease fee but, as stated by him, ‘to get you guys to get started on re-letting the property’. Mr Lawrence submitted at the Tribunal hearing that the payment of $874.50 should be put towards the rent. Indeed the email exchange between the parties filed in MCDT1426/18 supports Mr Lawrence’s submission made at the Tribunal hearing that he will transfer the amount of $874.50 to the respondent but does not consider that he is required to pay it.
- Mr Lawrence is correct in his contention that he, as the tenant, is not liable to pay a break lease fee under the tenancy agreement for breaking the lease early. Mr Lawrence, as the tenant, may, however, be required to pay the reasonable costs incurred by the respondent (as the lessor) in reletting the premises. Where the lessor has in respect of claiming any reasonable costs in reletting the premises, a duty to take all reasonable steps to mitigate the loss or expense. The Tribunal in ordering compensation in favour of a lessor must have regard to relevant matters set out under s 421 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘the Act’) such as, for example, rent required to be paid but not paid for the period starting when the agreement is terminated because of the tenant’s action and ending when the preemies are relet.
- Here the Tribunal calculated the amount of compensation payable under s 173(2) of Act in the amount of $440. The Tribunal’s finding as to the amount of compensation payable is not challenged in the appeal. The Tribunal has not, however, in determining the amount of rent payable to the respondent taken into consideration the earlier payment by Mr Lawrence of $874.50 and effectively treated that payment as a break lease fee despite its finding that compensation is payable under s 173(2) of the Act in the amount of $440. This is an error and leave to appeal should therefore be granted.
Should the ‘break lease’ payment be treated as rental money?
- The amount of unpaid rental was a live issue in the hearing below. The transcript reveals that the respondent referred to the tenant ledger and outlined the amount claimed including unpaid rent as being $795. More importantly, the respondent referred the Tribunal to the tenant ledger that shows the last payment of rent was received on 12 September 2018 for the period from 13 September 2018 to 19 September 2018, inclusive. The transcript reveals that Mr Lawrence was given an opportunity to respond to the issue of outstanding rental. Mr Lawrence submitted that he was seeking the return of the rental bond less an amount for compensation that he estimated to be $220. Further, Mr Lawrence submitted to the Tribunal below that the payment of $874.50 should effectively be treated as rental.
- There is no error in the Tribunal’s finding that rent was payable for the period from 20 September 2018 to midnight on 26 September 2018, inclusive being the day before the new tenancy commenced. The tenant ledger clearly shows that the last payment of rent was on 12 September 2018 for the period from 13 September 2018 to 19 September 2019, inclusive. Mr Lawrence accepted at the Tribunal hearing that he vacated the property from midnight on 26 September 2019 and the new tenancy commenced from 27 September 2018. There is, however, an error in the calculation of the rental money payable by Mr Lawrence to the respondent on the basis that the Tribunal did not take into account the earlier payment of $874.50. This may have been an oversight given that the Tribunal determined compensation payable under s 173(2) of the Act in the amount of $440. The Tribunal should have considered the payment of $874.50 on 12 September 2018, in its calculation of rental money owing under the agreement and treated the payment of $874.50 as a credit after determining rental owing in the amount of $795. Had the Tribunal taken into account the earlier payment of $874.50, there would in fact be a credit of $79.50 payable to Mr Lawrence for rental owing. The appeal is allowed and the Tribunal’s decision in relation to rental arrears is set aside and the respondent is ordered to pay Mr Lawrence the amount of $79.50 for rental owing.
Is there an error in the Tribunal’s decision to award the costs of the filing fee?
- The Tribunal’s minor civil disputes jurisdiction is busy and demanding and in meeting its objectives under the QCAT Act, the Tribunal is required to deal with matters in a way that is ‘accessible, fair, just economical, informal and quick’. Often there is an allocated time in the hearing in which the parties may present their case and the Tribunal will often, after considering the submissions and evidence, deliver oral reasons for its decision. Here the Tribunal ordered that Mr Lawrence pay the respondent’s costs of the filing fee. Although the respondent’s costs was a live issue in the hearing below, it is clear from the transcript of the hearing that Mr Lawrence was not given an opportunity to make oral submissions about the payment of the respondent’s filing fee.
- I have found that there is an error in the Tribunal’s calculation of rental owing to the respondent and having set aside the Tribunal’s decision in relation to rental arrears, there is an amount of $79.50 payable to Mr Lawrence for rental owing. The Appeal Tribunal is well placed, having granted leave and in allowing the appeal, to consider the issue of costs ordered by the Tribunal.
- The power to award costs involves the exercise of a broad discretion. The starting position is that each party bear their own costs. Here both parties have incurred costs of a filing fee by reason of the filing of the application and counter-application. In this matter, I am persuaded that the discretion to award the payment of costs of the respondent’s filing fee was in error and should be set aside on the basis that both parties have in part been successful in their respective claims before the Tribunal below. Had the Tribunal properly calculated the amount of rent owing to the respondent, it is unlikely the Tribunal would have exercised its discretion to award costs and more importantly exercised its discretion to award the cost of the filing fee in the respondent’s favour.
- The appeal is allowed. The Tribunal’s decision in MCDT1426-18 in relation to the rental arrears and costs is set aside and the following decision is substituted:
- Gold Coast Property Expo pay the amount of $200 to Stephen Lawrence for $79.50 in rental owing and $120.50 for repayment of filing fee.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 142(3)(a)(i).
 Pickering v McArthur  QCA 294, .
 Application for leave to rely upon fresh evidence filed 12 April 2019.
 Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404, 408
 Transcript of proceedings, T1-19, L25 - 35.
 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 173.
 Ibid s 173.
 Ibid s 362.
 Transcript of proceedings, T1-17 to T1-19.
 Ibid, T1-26.
 Ibid, T1-31.
 Ibid, T1-19, L25 – 35.
 Ibid, T1-34, L30.
 Ibid, T1-12.
 QCAT Act s 3.
 Ibid s 100.
- Published Case Name:
Stephen Lawrence v Gold Coast Property Expo
- Shortened Case Name:
Lawrence v Gold Coast Property Expo
 QCATA 133
A/Senior Member Browne
05 Sep 2019