QCAT update: Residential tenancy disputes on appeal

In this article, we consider two recent decisions of the Queensland Civil and Administrative Tribunal, in its appellate jurisdiction, which provide property managers with some useful information in the event that they are named as a respondent in an application for leave to appeal filed in the Tribunal.  

Greg Ritchie v Harcourts Broadbeach/Mermaid Waters [2024] QCATA 15

In July 2021, the appellant (the tenant) signed a six-month fixed term tenancy agreement for a property in Broadbeach Waters. Shortly after the fixed term tenancy agreement had expired, the respondent (the property manager) issued a Notice to Leave without grounds with the required notice period. The tenant failed to vacate the property and the property manager applied to the Tribunal for the termination of the tenancy agreement and a warrant of possession.

The learned Adjudicator found in the property manager's favour, terminating the tenancy agreement and issuing a warrant of possession.

The tenant, despite not living in the property since August 2022, appealed the decision submitting that the Tribunal was in error by:

1. Finding he was not tricked into signing a shorter tenancy agreement; and
2. The unfair acceptance of the property manager’s evidence.

The Appeal Tribunal noted that leave of the Tribunal is required,[1] which will usually be granted where there is a reasonable argument that there was an error in the primary decision, and an appeal is necessary to correct a substantial injustice caused by that error.[2]

In circumstances where the tenant also sought to introduce new evidence, the Appeal Tribunal considered the following test for leave to introduce new evidence:

1. The evidence could not have been obtained with reasonable diligence for use at the trial;

2. The evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and

3. That the evidence is credible though it need not be incontrovertible.[3]

The tenant was unable to offer any reason why the new evidence could not have been obtained and filed for the initial hearing. In the circumstances, leave to file the new evidence was refused.

During the initial hearing, the tenant argued that he was tricked into signing a six-month tenancy agreement, when he believed he was signing a 12-month lease. The Tribunal did not accept this argument.

The Appeal Tribunal stated that the findings of fact made in a first instance decision should generally not be interfered with,[4] except where those findings of fact are demonstrated to be wrong by incontrovertible facts, or if they are contrary to compelling inferences.[5]

The Appeal Tribunal held that on “the evidence available, or lack thereof,”[6] it was open to the learned Adjudicator to conclude that the tenant was not tricked into signing a shorter tenancy agreement.

The tenant also argued that it was unfair of the Tribunal to allow the property manager to submit a lengthy document during the initial hearing. However, the tenant was provided with a copy of the document during the hearing and given time to consider its contents. The tenant advised the learned Adjudicator that he had read the document and did not raise any concerns during the initial hearing.

In the circumstances, the Appeal Tribunal held that there was no error made by the learned Adjudicator in allowing the property manager to introduce the document as supporting evidence during the initial hearing.

The Appeal Tribunal held that the tenant had not demonstrated that the Tribunal was in error or that a substantial injustice needed to be corrected. Accordingly, leave to appeal was refused.

Tulloch v LJ Hooker Bay Islands Pty Ltd [2024] QCATA 10

The appellant, a tenant of a property, applied to the Tribunal to set aside a Notice to Remedy Breach (the Notice) issued by the respondent, the property manager, alleging objectionable behaviour by the tenant. The tenant was successful in setting aside the Notice but proceeded to file an application for leave to appeal the Tribunal’s decision.

The tenant submitted that he was not given natural justice in circumstances where documents he had provided to the Tribunal during the initial hearing were disregarded. At the initial hearing, the tenant sought an order from the Tribunal to direct the property manager to issue a formal apology and stop harassing him.

The Appeal Tribunal referred to the powers granted to the Tribunal under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act). While section 426(1) of the RTRA Act provides that the Tribunal has the power to make orders in relation to notices issued by lessors, those powers do not include the orders sought by the tenant, other than setting aside the Notice.

Leave to appeal was refused as the tenant had not established any error by the Tribunal or a substantial injustice that needed to be addressed by the Appeal Tribunal.

Conclusion

In determining whether to allow an application for leave to appeal, the Appeal Tribunal will consider, amongst other things, whether there is a reasonable argument that there was an error in the initial decision, and an appeal is necessary to correct a substantial injustice caused by that error.[7]

These two appeal decisions are a timely reminder that leave to appeal will not simply be granted where a party is unhappy with the outcome of the initial hearing in the Tribunal.

Whilst all parties involved in residential tenancy disputes before the Tribunal must represent themselves (some exceptions apply), they are of course, always able to seek legal advice in regard to all aspects of a dispute. If property managers have any concerns about a residential tenancy dispute, including compliance with the RTRA Act or any other relevant legislation, it is strongly recommended that they seek legal advice.

Read another property management article: Right to disconnect - Information for real estate workplaces.

Or browse our list of property management articles.