Hunter v Fowler[2021] QCATA 83

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This matter began as an application by a co-tenant of residential premises for early release from her tenancy obligations on the ground of `excessive hardship’.^[1]
2. [2]
   On 29 October 2019 the appellant Kimberley Hunter (`Hunter’) and the respondent Narah Fowler (`Fowler’) jointly leased residential premises (`the premises’) at Alderley, Brisbane, managed by McGrath Estate Agents Wilston (`McGrath’).
3. [3]
   The term of the lease was from 29 October 2019 to 26 October 2020.

Co-tenants in dispute

4. [4]
   On or about 27 April 2020 Fowler left the premises, claiming that she was forced to do so by personal conflicts with Hunter and financial difficulties. In the event, Fowler rested her case on incompatibility, and the application was decided on that basis.^[2]
5. [5]
   Admirably Fowler, after leaving the premises, continued to pay her share of rent.^[3] Thus any suggestion that she had no serious cause to leave the premises challenges probability.
6. [6]
   According to Fowler, tension between Hunter and herself became acute about 27 December 2019, when Hunter objected to Fowler’s use of a slow cooker given to her by her parents, and Hunter abused Fowler and her parents in an outburst liberally interspersed with obscenities.^[4] Fowler says that this confrontation was followed between 27 December and 2 January 2020 by a contretemps over a vacuum cleaner, during which Hunter told her co-tenant inter alia: `You are so (expletive) stupid. I am sick to death of having to deal with your stupidity every day ... you can’t keep acting in this (expletive) psychotic way.’ According to Fowler there was further verbal abuse on 3 February 2020 when she failed to take Hunter’s dog for a walk. In late April 2020 Fowler told Hunter: `I’m only going because of your constant screams at me on Easter Sunday’.^[5] Fowler moved out, she said, when the `stressful situation’ became extreme’.^[6]
7. [7]
   Hunter denies some of these encounters, but not her use of colourful language. Hunter admits that she had `issues’ with Fowler.^[7] In a parting message Hunter wrote:

You lack the ability to communicate in any form. In a share house [lack of] communication turns to tension, stress, frustration, unknown concerns and feelings, un-comfortableness and all in all – annoyance. ... In any event, if living here was so terrible that your solution was to vacate, that is your decision and you are entitled to do so.^[8]

8. [8]
   Fowler commenced these proceedings two days later.

Fowler’s co-tenancy dissolved

9. [9]
   The Tribunal heard the application on 21 July 2020, and, pursuant to section 310 of the RTRAA, ordered that Fowler be removed as a party to the tenancy agreement as and from 1 September 2020.^[9] In fairness to the appellants^[10] the order was suspended for six weeks.
10. [10]
    Whatever be the precise `issues’ and exchanges between the parties, - and the minutiae need not be dissected here - it is manifest that their relationship had broken down, and that Fowler, at least, felt that deeply. That is the point. As the learned adjudicator carefully pointed out, a section 310 application is not about the attribution or apportionment of fault, but about the state of the subject relationship:

I am satisfied, even from what I have heard from the parties,^[11] that there was an incompatibility issue ... the extent of that may be in dispute ... and I make no findings as to who’s at fault, but ... there [are] grounds to make an order.”^[12]

11. [11]
    Hunter now asks the appeal Tribunal to set that decision aside.

Section 310 of the RTRAA

12. [12]
    Section 310, enabling the Tribunal to terminate a residential lease to relieve a tenant’s `excessive hardship’ confers a broad discretionary power.^[13] Appeals against discretionary decisions face special difficulties.^[14]
13. [13]
    The RTRAA does not define `hardship’. Therefore we are referred to a basic rule of statutory interpretation, namely that, absent special provision, legislation is to be construed according to its natural and ordinary meaning.^[15] Assistance may be gained from cases decided in this Tribunal, or under comparable legislation in other jurisdictions. But unsurprisingly most expositions end with the reflection that no abstract definition is possible, and that ultimately every decision depends on the facts and circumstances of the case.^[16] The decision is one of fact, judgment and degree.^[17]

The word `hardship’ is not a word of [legal] art. It follows that it must be construed ... in a common-sense way ... such as would meet with the approval of ordinary sensible people. In my judgment the ordinary sensible man would take the view that there are two aspects of `hardship’ – that which the sufferer ... thinks he is suffering, and that which a reasonable bystander with knowledge of all the facts would think that he is suffering.^[18]

14. [14]
    Usually, if not invariably, Queensland cases favouring tenants involve persons whose position is largely passive – where the hardship is involuntary, rather than a consequence of a chosen course of action.

The present issue

15. [15]
    As Wilson J, a former President of the Tribunal, said in Hayward & Anor v L J Hooker Longreach^[19]:

This [is] a simple case with one issue – whether or not the tenants would suffer excessive hardship if the Tribunal did not terminate the tenancy agreement.

There is no issue as to brevity of reasons. There is no rule that voluminous evidence or submissions must be followed by a long and complex judgment,^[20] particularly where much of the material is peripheral,^[21] or – for reasons stated below - not relevant to an application for leave to appeal. Reasons need not be elaborate where it is simply a discretionary assessment of compatibility of parties in shared accommodation.^[22]

16. [16]
    The would-be appellants make it clear that, in their view, Fowler’s application should be dismissed. But that is not nearly enough. It is necessary to specify an arguable ground of appellable error. They have not done so.

Not a retrial

17. [17]
    Unfortunately it is a common error of parties seeking leave to assume that such an application is an opportunity to re-run the trial, or to `second guess’ the primary Tribunal, as if the first hearing were merely a `preliminary skirmish’.^[23] On the contrary, findings of fact, assessments of credit and reasonable exercises of discretion are the prerogative of the primary adjudicator.

If there is evidence ... no error of law occurs simply because the judge prefers one version of evidence to another or one set of inferences to another. This is his function. ... Even if the evidence is strongly one way the Appeal Court may not intervene simply because it reaches a different conclusion [and] ... regards the conclusion of the trial judge against the weight of evidence.^[24]

18. [18]
    This is classically a case in which the applicants are attempting to conduct a retrial on evidence already advanced, or additional evidence which could reasonably have been presented at the trial. It is just the sort of case that the legislature intends to be resolved speedily, economically and with finality.^[25] The very point of the `leave to appeal’ hurdle is to curb attempts to misuse appeals as retrials or devices of delay. It is not appellable error to prefer one version of the facts to another, or to give more weight to the evidence of `A’ than to that of `B’. Findings of fact will not normally be disturbed if they have rational, albeit debateable support in the evidence, even where another reasonable view is available.^[26] Where reasonable minds may differ, a decision is not erroneous merely because one solution has been preferred to another possible view.^[27] It is not nearly enough for a party to express disappointment at the original decision, or a subjective feeling that justice has not been done.^[28]

19. [19]
    I can discern no appellable error in the Tribunal’s decision; indeed, none has been specified. There was ample evidence to support the findings made and the discretion exercised. Leave to appeal must therefore be refused.

ORDER

The application for leave to appeal is dismissed.