Jacobs v Karagianis

[2016] QCATA 153

CITATION: Jacobs v Karagianis [2016] QCATA 153

PARTIES:	Alexandra Jacobs (Applicant/Appellant)
v
Archilleas Karagianis Lazaros Karagianis (Respondents)

APPLICATION NUMBER: APL202 -16

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM

DELIVERED ON: 17 October 2016

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBIED MATTERS AND PROTECTION FOR LESSEES – RENTAL BONDS AND SECURITY DEPOSITS where tenant left premises – where no formal notice of termination or notice to leave – where tenant kept paying rent for co-tenant – where tenancy terminated – where claim for compensation – where tribunal found both tenants liable for compensation - whether grounds for leave to appeal

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 310, s 311

Chambers v Jobling (1986) 7 NSWLR 1
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Alexandra Jacobs and her then partner Bam Bentley rented a home from Lazaros Karagianis and a number of his family members. The tenancy started on 29 March 2014. Ms Jacobs left the tenancy in August 2014. The lessors terminated Mr Bentley’s tenancy in May 2015.

2. The lessors filed an application for compensation agianst both Ms Jacobs and Mr Bentley. The tribunal ordered that they were jointly liable for compensation of $9,967.45 and Mr Bentley was liable for a further $2,211.86.

3. Ms Jacobs wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted 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.[2]

   [1]QCAT Act s 142(3)(a)(i).

   [2]Pickering v McArthur [2005] QCA 294 at [3].

4. Ms Jacobs says the tribunal did not give enough consideration to the abusive relationship she had with Mr Bentley, the reasons she left so suddenly, and a number of other circumstances resulting in her not taking precise formal steps to remove herself from the lease. She says that, had she applied for a domestic violence order, the decision would have been different but ‘too often women are scared to involve police and they are ultimately punished for being scared.’

5. The tribunal clearly set out what was required for a termination of a tenancy; that is, an agreement between the parties or a notice to leave.[3] Ms Jacobs told the tribunal that she thought her email in August was a notice to leave.[4] The tribunal pointed out that it was not, in fact, a notice to leave under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).[5] It also pointed out that Ms Jacobs’ email was equivocal:

   I’ll be discussing the current matter with various family members and will be in touch with you again in the morning to discuss more formally – discuss in more detail but wanted to let you know formally that I’m not longer there.[6]

   [3]Transcript page 1-8, line 21 to page 1-9, line 3.

   [4]Transcript page 1-9, lines 5 – 6.

   [5]Transcript page 1-9, lines 8 – 9.

   [6]Transcript page 1-9, lines 23 – 26.

6. The tribunal pointed out that Ms Jacobs continued to pay rent.[7] Ms Jacobs explained that she continued to pay rent because she was waiting for Mr Bentley to find a new tenant.[8]

   [7]Transcript page 1-10, lines 1 – 2.

   [8]Transcript page 1-10, lines 12 – 25.

7. Against that evidence, Ms Jacobs accepted that she was liable for the rent and bills. She did not accept liability for the damage.[9] Of the $9,967.45 the tribunal ordered Ms Jacobs pay only $1,660.64 related to damage.

   [9]Transcript page 1-11, lines 1 – 3.

8. The Residential Tenancies and Rooming Accommodation Act is clear in the way a tenant can terminate a tenancy. It provides for termination because of excessive hardship.[10] It allows a tenant to apply for a termination if a co-tenant is likely to cause injury to that tenant.[11] The tribunal serves the application on any respondent, and parties can apply to appear by telephone, so there was no need for Ms Jacobs to have any direct contact with Mr Bentley.

   [10]Section 310.

   [11]Section 311(1)(b)(i).

9. There was no evidence before the tribunal that Ms Jacobs’ situation was so dire that she was unable to contemplate her future or seek help. She had the support of her father.[12] She worked in the real estate industry.[13] She did nothing for approximately six months. Her assertion, only on appeal, that the domestic violence situation prevented her from taking any positive action does not fit well with the evidence before the tribunal.

   [12]Letter Barry Jacobs to Queensland Civil and Administrative Tribunal dated 24 September 2015.

   [13]Affidavit Lazaros Karagianis filed 21 September 2015.

10. I do not accept that the tribunal should have taken into account matters that were not brought to its attention and which are contrary to the evidence at the hearing. I do not accept that the tribunal should take judicial notice that ‘too often women are scared to involve police and they are ultimately punished for being scared’ when the actual evidence before it suggested Ms Jacobs persevered with the tenancy agreement when there was no immediate or obvious threat to her safety.

1. There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused.