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- Unreported Judgment
Your Future Strategy v Rosenfield QCATA 95
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Your Future Strategy v Rosenfield  QCATA 95
YOUR FUTURE STRATEGY PTY LTD
1 July 2019
On the papers
Member Richard Oliver
Leave to appeal is refused.
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where residential tenancy terminated on the grounds of excessive hardship – whether the need to move children from current high school to new school as a result of potential stress on the children from bullying at school constitutes excessive hardship – where decision involves a question of fact – whether substantive injustice if the fresh evidence not allowed
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 13, s 142
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 310
Bradlyn Nominees Pty Ltd v Saikovski  QCATA 39
Fox v Percy (2003) 214 CLR 118
Robinson Helicopter Company Incorporated v McDermott
 HCA 22
Terera & Anor v Clifford  QCA 181
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
- On 9 October 2017 Mr and Mrs Rosenfield entered into a Residential Tenancy Agreement with Lisa Sanders, the owner of 6 Hillary Circuit, Pacific Pines for a period of 16 months. The Residential Tenancy Agreement commenced on 23 October 2018 and expired on 22 February 2019. The Rosenfields took possession from 23 October 2017 and remained in possession of the premises until 26 October 2018. The applicant was the managing agent for the tenancy.
- On 3 October 2018 they gave the applicant a Notice of Intention to Leave under the Residential Tenancies and Rooming Accommodation Act 2008 (‘RTRA’) on the grounds of excessive hardship under s 310 of the RTRA. That section provides:
(1) The tenant may apply to a tribunal for a termination order because the tenant would suffer excessive hardship if the agreement were not terminated.
- (2)An application under this section is called an application made because of excessive hardship.
- The excessive hardship relied upon by the Rosenfields’ in their Notice of Intention to Leave is as follows:
Our kids have been relentlessly bullied at Pacific Pines High School all year. This has resulted in diminished mental health and professional medical assistance.
- The Rosenfields wanted to transfer their children from the Pacific Pines High School, to the Benowa High School near Southport but before they could enrol their children in that school, they were told by the school that they had to reside, or have a commitment to reside, in the school catchment area. The residence at 6 Hillary Circuit was not within the Benowa School catchment. It is for that reason that they claimed that they had to vacate the premises to move to a house within the catchment.
- At the time they gave Notice of Intention to Leave in October 2018, they had signed the tenancy agreement on a property within the catchment area and were committed to move into the new house. Because of that commitment, and the signing of the tenancy agreement, the Benowa High School was satisfied that the catchment criteria issue was satisfied and the children were enrolled in that school.
- The applicant did not accept that the circumstances of the Rosenfields’ case amounted to excessive hardship and therefore it would not release the Rosenfields from the tenancy agreement they had entered into with Ms Sanders. As a consequence, the Rosenfields brought an application in the minor civil disputes jurisdiction of the tribunal seeking an order that the lease be terminated on the grounds of excessive hardship under s 310 of the RTRA.
- The matter came on for hearing before an adjudicator on 23 October 2018. Initially there was some issue about whether the applicant had notice of the Rosenfields’ application and after a short adjournment Mr Croy who appeared on behalf of the applicant was satisfied that he had sufficient information to proceed with the hearing.
- Mr Croy argued the case on the basis that the Rosenfields had not demonstrated ‘financial hardship’ however the learned Adjudicator pointed out to him that the section was not restricted to financial hardship, but was in more general terms and could include those matters relied upon by the Rosenfields. This is of course correct.
- After hearing from both parties, the learned Adjudicator was satisfied that the Rosenfields had demonstrated that they had suffered excessive hardship by reason of the constant bullying of their daughters in the Pacific Pines High School, and also within the local community. He pointed out that the onus was on the Rosenfields to establish excessive hardship and having heard their evidence, he was satisfied that this was in fact the case.
- There was some argument about whether the Rosenfields did in fact have to move. However, at the time they enrolled their children in the Benowa High School, and entered into the tenancy agreement, they had a honest and reasonable belief, from what they were told, that they had to commit to a lease within the school catchment before the school would take their children. This is what they did. The learned Adjudicator was satisfied with this explanation and that is set out clearly in his reasons. The learned Adjudicator made a decision terminating the tenancy agreement.
- From that decision the applicant filed an application for leave to appeal or appeal. The grounds of appeal raised questions of fact such as that the Rosenfields did not ‘meet the grounds for excessive hardship’. Also that the school children had already been enrolled in the school in another catchment area when the Notice of Intention to Terminate was given. These, of course, are questions of fact.
- An appeal from a decision in the minor civil disputes jurisdiction of the tribunal is not as of right. Section 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act (‘QCAT Act’) provides that an appeal against a decision in respect of minor civil dispute can only be made ‘if the party has obtained the appeal tribunal’s leave to appeal’.
- For the appeal tribunal to give leave to appeal, the appellant must identify some error of law or other good reasons to interfere with the original tribunal as constituted. The issues raised on the question of whether to grant leave to appeal have been summarised in the recent case of Terera & Anor v Clifford, they are whether:
- (a)an appeal is necessary to correct a substantial injustice;
- (b)there is a reasonable argument that there is an error to be corrected; and
- (c)on the question of whether leave to appeal might be given, the court usually makes some preliminary assessment of the prospects of the proposed appeal. As was said in Queensland Building & Construction Commission v Meredith, there dealing with an appeal from the appellate tribunal of QCAT:
Section 150(3) of the QCAT Act permits an appeal to this Court against a final decision of the Appeal Tribunal only on a question of law and only if the party who wishes to appeal has obtained leave to appeal from this Court. The very structure of this provision forcefully implies, first, that leave to appeal may be given only with respect to a question of questions of law and, secondly, that in considering the exercise of the discretion to grant leave to appeal, this Court will have high regard for the prospects of success that the applicant for leave has of demonstrating error on the part of the Appeal Tribunal with respect to the question or questions of law concerned. There must be reasonable prospects of success to warrant a grant of leave.
- There is one other consideration: the application for leave to appeal or appeal is not a rehearing on the merits of the matter that was before the primary decision maker/s to achieve a different outcome. The appellant must identify some error of law or alternatively some substantial injustice, generally on the basis that the conclusion of the Tribunal at first instance was simply not open on the evidence before it.
- Another consideration is the discretion conferred on the decision makers in minor civil disputes under s 13 of the QCAT Act. It provides:
- (1)In a proceeding for a minor civil dispute, the tribunal must make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute but may, if the tribunal considers it appropriate, make an order dismissing the application.
- The learned Adjudicator here, was faced with the uncontroversial evidence as to the bullying of the Rosenfields’ children at the high school, and in the local area, and the impact this was having on the psychological well-being of the children. He also accepted their evidence that it was a requirement that they move, or commit to move, to a residence in the catchment area of Benowa so their children could be enrolled. Although he did not specifically say so in his reasons for the decision, it is evident that he gave consideration to the fair and equitable outcome to the Rosenfields in considering whether or not to terminate the lease.
- More importantly, his decision in respect of the excessive hardship question, was based on an assessment of the facts as put before him and having considered that those facts, concluded that the Rosenfields had made out a case for excessive hardship. That conclusion was open on the evidence and it is not for this Appeal Tribunal to interfere with that finding.
- As the question of whether or not a tenant is experiencing excessive hardship in the circumstances, is a question of fact, and not one of law and having regard to the criteria set out in Terera referred to above, the applicant has not established that this is a case where leave to appeal should be granted.
- Published Case Name:
Your Future Strategy v Rosenfield
- Shortened Case Name:
Your Future Strategy v Rosenfield
 QCATA 95
Member Richard Oliver
01 Jul 2019