Sarvari v Rent My Property Pty Ltd

[2017] QCATA 14

CITATION:

Sarvari v Rent My Property Pty Ltd [2017] QCATA 14

PARTIES:

Zahra Sarvari
(Applicant/Appellant)

v

Rent My Property Pty Ltd

(Respondent)

APPLICATION NUMBER:

APL228-16

MATTER TYPE:

Appeals

HEARING DATE:

27 January 2017

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

Ex tempore reasons 27 January 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1.    Leave to appeal is granted.

2.    The appeal is allowed.

3.    Paragraph 1 of the Tribunal decision dated 15 June 2016 is set aside. The following order is substituted:

The Tenancy is terminated as and from 15 June 2016.

4.    Paragraph 2 of the Tribunal decision dated 15 June 2016 is set aside.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – LANDLORD AND TENANT – LEASES AND TENANCY AGREEMENTS – RESIDENTIAL TENANCIES LEGISLATION – application for termination due to excessive hardship – where tribunal terminated tenancy agreement for excessive hardship – where tribunal terminated tenancy agreement on a date in the future – where tribunal ordered break lease compensation -whether compensation can be awarded on an tenant’s application for excessive hardship without application by landlord – whether tribunal erred in awarding compensation – whether grounds for appeal

APPEARANCES:

APPLICANT:

Zahra Sarvari
Niloufer Sarvari, support person
Amir Reza, interpreter

RESPONDENT:

David Isles, Rent My Property Pty Ltd

REASONS FOR DECISION

1. Ms Sarvari entered into a tenancy agreement with Rent My Property on the 21^st of January 2016.  This was a one year fixed term agreement due to end on the 20^th of January 2017.  In May 2016, Ms Sarvari was offered a tenancy through the Department of Housing.  She signed a tenancy agreement with the Department on the 23^rd of May 2016.  Her application to the tribunal below indicates that she’d been on the waiting list for approximately three years. 

2. On the 23^rd of May 2016 Ms Sarvari provided a notice of intention to leave to Rent My Property.  The notice showed that she intended to vacate the property on 3 June 2016, which she did. 

3. On the 25^th of May 2016 Ms Sarvari filed an application for termination of a lease agreement due to financial hardship as her circumstances had changed following the acceptance of the offer from the Department of Housing.  Prior to the offer Ms Sarvari was receiving rent assistance from Centrelink.  When she accepted the offer from the Department, the rent assistance ceased.  As a result of that, the total household income per week was only $2 more than the rent she was paying to Rent My Property.  The tribunal heard the application on the 15th of June and ordered that the tenancy agreement be terminated on the basis of hardship from the 27th of June 2016.

4. Ms Sarvari has applied for leave to appeal the tribunal’s decision.  To succeed in an application for leave to appeal Ms Sarvari must demonstrate two things.  Firstly, an error by the tribunal and, secondly, that because of the error there is substantial injustice.  Ms Sarvari did not point me to any error by the tribunal, rather her submissions were directed to errors by Rent My Property.  Having said that, a careful reading of the transcript does reveal an error by the tribunal. 

5. Section 310 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) allows a tenant to apply to a tribunal for termination if the tenant would suffer excessive hardship. Section 343 of the Act says that if an application is made because of this excessive hardship the tribunal may make the order if it is satisfied that the applicant, Ms Sarvari, has established the ground of the application. So the tribunal made a finding of excessive hardship at page 8 of the transcript but then went on to make a contradictory finding that there wasn’t excessive hardship within the terms of the Act because it resulted from Ms Sarvari’s own actions.

6. That finding tends to ignore Ms Sarvari’s statement in her claim that housing affordability had been an issue for a much longer period.  And the tribunal didn’t explore that evidence at all.  If the tribunal was satisfied that there was excessive hardship, as apparently it was, the appropriate order was to terminate the tenancy from the date of the hearing, the 15th of June. 

7. There was no power in the tribunal to then go on and order compensation. 

8. That’s not to say that Rent My Property isn’t entitled to compensation.  It’s simply that there is a different process and a different application to be made.  So, if the lessor makes an application for termination for excessive hardship then section 350(2) allows the tribunal to make a compensation order automatically.  Section 350(2) permits the tribunal to make an order for compensation at that time.  But if the application is by the tenant then the conciliation and dispute resolution processes have to be followed because it might be that the compensation can’t be fixed until a new tenant has been installed. 

9. So my decision is that leave to appeal is granted and the appeal is allowed.  Paragraph 1 of the decision dated the 15^th of June 2016 is set aside, and the following order is substituted:  the tenancy is terminated as and from 15 June 2016 and paragraph 2 of the decision dated 15 June 2016 is also set aside.