Kabel v Shier[2021] QCATA 101

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   At all material times the respondent (`Shier’) was lessee of residential premises at Wynnum (`the premises’) owned by the appellant (`Kabel’). Kabel’s managing agent was one Ms McKenna, the Property Manager of Ray White Wynnum - Manly (`the agent’).

2. [2]
   On 13 August 2020 Shier applied to the Tribunal for early termination of the tenancy, pursuant to section 310(1) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), (the Act) which provides:

The tenant may apply to a tribunal for a termination order because the tenant would suffer excessive hardship if the agreement were not terminated.

3. [3]
   The Act does not define `excessive hardship’, so we are thrown back upon the principle of statutory interpretation that legislation is to be construed according to its natural and ordinary meaning.^[1] Unsurprisingly most expositions of section 310 lead to the reflection that no abstract definition is possible, and that ultimately every decision depends on the facts and circumstances of the case.^[2] The decision is a discretionary blend of fact, judgment and degree.^[3] Discretionary decisions are particularly difficult to disturb on appeal.^[4]
4. [4]
   On 24 September 2020 the Tribunal heard and determined the application. Shier represented herself, and the agent appeared on behalf of Kabel. The agent’s locus standi derives from a specific provision in the REIQ’s standard form of residential lease.^[5]
5. [5]
   Shier told the Tribunal that she is a Canadian citizen who moved to Brisbane in November 2019 to be nearer to her daughter, then living in Fiji. Soon afterwards, however, international travel restrictions due to the Covid pandemic left Shier stranded in Australia. As an employee of a travel agency, the precarious position of such a business in the Covid emergency exacerbated her sense of isolation.
6. [6]
   Shier explained:

[Y]ou can imagine the distress of working in that industry and being here by myself with no friends and no family. It was really for mental health, because I needed a companion.

I’ve always had dogs back home in Canada and ... I needed to get to get a dog for a companion for my mental wellbeing.^[6]

7. [7]
   Shier sought medical advice^[7] and as the Tribunal accepted, she was advised to move `due to the problems with her mental health based on her isolation.’^[8]
8. [8]
   However, Shier’s wish to keep a dog on the premises depended on the body corporate’s consent as well as Kabel’s. Initially Kabel was agreeable, and Shier was led to believe that body corporate consent would be a formality.^[9] 
9. [9]
   Meanwhile Shier, confident of the body corporate’s consent, purchased a dog,^[10] which was delivered sooner than expected. 
10. [10]
    But after delays and complications in the body corporate process Kabel changed her mind.^[11]
11. [11]
    Absent the necessary consents, Shier decided that she `just ... had to remove myself. There was nothing further I could do.’^[12]

12. [12]
    At the conclusion of Shier’s evidence, the Adjudicator addressed Kabel’s representative (McKenna) as follows:

ADJUDICATOR WALSH: So Ms Shier has made an application to the tribunal for termination of the lease from the 4th of September based on the fact that she would suffer excessive hardship if she wasn’t released from the lease. My question to you is do you want to make any submissions as to why this is not a case of excessive hardship? 

MS McKENNA: No.^[13]

13. [13]
    Whereupon the Tribunal proceeded to its decision: 

I consider, based on all the evidence that I have heard and the documents supplied to the Tribunal that Ms Shier has established the grounds of excessive hardship. ... I’ll make an order that the tenancy of the property ... be terminated as and from the 4th of September 2020 on the grounds of the tenant’s excessive hardship.^[14]

14. [14]
    Kabel now seeks leave to have that decision set aside and in lieu thereof she asks:

... that the rent continues to be paid until the end of the lease, or when the property manager finds another tenant. I cannot financially afford the $9,000 body corporate fees, rates, utilities, my living expenses on the road, food, fuel, accommodation, currently in Far Nth Qld on no income’.^[15]

15. [15]
    Kabel’s subsequent submissions repeat and elaborate her alleged financial difficulties, but they do not identify, let alone particularise, any reasonably appellable error on the Tribunal’s part. That is the proper object of an application for leave.^[16] An application of this kind is not an opportunity to conduct a retrial, or to `second guess’ the primary tribunal’s decision, but that is what Kabel’s submissions really amount to. Unfortunately, it is common error of selfrepresented litigants to make those assumptions. The trial is not merely a `preliminary skirmish’.^[17] 
16. [16]
    The very point of the leave to appeal hurdle is to curb attempts to misuse appeals as retrials or devices of delay, or to introduce evidence or arguments that might have been led in the first place, but were not. It is the legislative intention that minor civil claims be resolved speedily, economically, and speedily.^[18] It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.^[19] Findings of fact, assessments of credit and discretionary decisions are the prerogative of the trial judge. The fact that a party loses a case and disagrees with the result does not signal an error of law. It is not a ground of appeal that the primary judge preferred one version of the facts to another, or gave less weight to one party’s case than the latter thinks it should have received. On the contrary –

[N]o error of law occurs simply because the judge prefers one version of evidence to another. This is his function ... the appeal court may not intervene simply because it reaches a different conclusion.^[20]

Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.^[21]

17. [17]
    Kabel contends that there is fresh evidence, in the form of the lease agreement and other documents. There is no substance in this submission. Those materials were before the primary tribunal, or could, with reasonable diligence, have been produced at the trial.^[22]
18. [18]
    At the trial, as noted above, Kabel’s agent and representative effectively conceded or at least declined to oppose Shier’s case:

ADJUDICATOR WALSH: [D]o you want to make any submissions as to why this is not a case of excessive hardship? MS McKENNA: No.^[23]

19. [19]
    Within the ambit of her employment as agent McKenna was Kabel’s alter ego.^[24] That fundamental principle of the common law is confirmed in the REIQ’s standard form of residential lease, as follows: 

Unless a special term provides otherwise^[25], the agent may – (b) do anything else the lessor may do ... under this agreement”.^[26]

20. [20]
    Clearly a lessor may choose to release his or her lessee from a residential agreement. And that is the effect of McKenna’s concession, which resulted in a virtual consent order.
21. [21]
    No doubt Kabel regrets that she did not represent herself at the trial, but she cannot retrospectively revoke her agent’s authority. She now complains that McKenna `did not act in my best interests’^[27], but that is a matter between Kabel and McKenna. Kabel may, if so advised, and if it seems financially worthwhile, seek a remedy against McKenna, but that is something for a different case and another day.
22. [22]
    I can discern no appellable error in the subject decision. There was ample evidence to support the findings made, and the manner in which the learned adjudicator’s lawful discretion was exercised. 
23. [23]
    Furthermore, the appellant Kabel, by her agent McKenna, unequivocally conceded, or at least did not oppose the order sought and secured by the respondent.
24. [24]
    Accordingly this application for leave to appeal must be dismissed.

ORDER

The application for leave to appeal is dismissed.