QCAT update: Retaliatory action

Readers will no doubt be aware that as of 1 October 2022, tenants in Queensland have a broader scope to seek orders from the Tribunal regarding ‘retaliatory action’ by a lessor. Prior to October 2022, tenants were only able to seek orders from the Tribunal for retaliation if a Notice to Leave was issued without grounds pursuant to section 291(3) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the RTRA Act). 

Whilst section 291(3) of the RTRA Act remains in force, on 1 October 2022, standalone ‘retaliatory action’ sections 246A and 276A (in relation to rooming accommodation) of the RTRA Act came into effect. 

Under section 246A of the RTRA Act, tenants may apply to the Tribunal for orders to set aside the actions of a lessor, if they ‘reasonably believe the action was taken to intimidate or punish them’ for:

(a) the tenant’s actions to enforce their rights (with a broad scope discussed below);

(b) the tenant complaining to an authority (such as the Residential Tenancies Authority); or

(c) if a Tribunal order is in force in relation to the lessor or tenant.

Section 246(1)(a)(i) of the RTRA Act provides examples of actions which may be taken by a tenant to enforce their rights, including:

(a) issuing the lessor with a notice to remedy breach;

(b) requesting repairs or maintenance to the property;

(c) requiring the lessor to reimburse the tenant for an amount properly incurred by the tenant for emergency repairs; or

(d) applying to the Tribunal for an order under the RTRA Act.

If a tenant has taken action as set out above, and the lessor:

(a) issues the tenant with a notice to remedy breach (other than a notice relating to a failure to pay rent for at least 7 days);

(b) increases the rent payable under the tenancy agreement;

(c) takes action to end the tenancy agreement; or

(d) refuses to renew the tenancy at the end of the current agreement;

then the tenant may apply to the Tribunal for an order to set aside the lessor’s actions if they reasonably believe the action was taken to ‘intimidate or punish’ the tenant.

In the recent decision of Bunting v S Drakos Real Estate Pty Ltd & Ors [2025] QCATA 31, the Queensland Civil and Administrative Tribunal, in its appellate jurisdiction, discussed retaliatory action under section 246A of the RTRA Act.

In Bunting, the appellant (the tenant) made various complaints about the rental property as well as the conduct of the lessor and lessor’s agent. The appellant initially filed an application in the Tribunal seeking compensation totalling $25,000. 

On 6 September 2023, the Tribunal dismissed the application, and the appellant proceeded to appeal the decision. The complaints made by the appellant were summarised into five grounds of appeal, with the following ground of appeal being relevant:

“(d) The actions of the lessor in issuing breach notices and a notice to leave, and offering the applicant a six-month lease with an increase in rent, were retaliatory actions by the lessor;” [1]

The appellant submitted that the Tribunal erred in failing to address her complaints about an increase in rent as constituting retaliatory action. 

The Appeal Tribunal noted that in addressing this aspect of the appellant’s claim, the Adjudicator considered whether section 71 of the RTRA Act applied, rather than section 246A of the RTRA Act.  The Appeal Tribunal held that the failure of the Adjudicator to consider the application of section 246A of the RTRA Act was an error of law.

In discussing retaliatory action, the Appeal Tribunal referred to the decision of Du Preez v Linda’s Homes Pty Ltd [2],  which 

“If ‘retaliatory’ is construed too broadly, almost any complaint by a tenant to an agent or landlord, or even a less than amicable exchange between them, might qualify in the sense that if the owner or its agent then gives a notice to leave the notice may be categorised as retaliatory. It is improbable the legislature intended that effect.” [3]

In Du Preez the Appeal Tribunal considered retaliatory action under section 291(3) of the RTRA Act and commented that “for an action to be considered retaliatory the lessor was required to have acted in a way that was unreasonable, excessive or vindictive in response to justifiable action taken by a tenant.” [4]

The Appeal Tribunal also referred to the decision of De Bruyne v Ray White Waterford [5], where a tenant alleged that a Notice to Leave had been issued in retaliation (under section 291(3) of the RTRA Act) only two days after the tenant had raised complaints about the state of the property.

In De Bruyne, the Appeal Tribunal stated that “the fact that `A’ precedes `B’ does not necessarily mean that `A’ caused `B’. It is not suggested that the agent-tenant relations here were invariably sweetness and light.” [6]

Unfortunately, it was not necessary in Bunting for the Appeal Tribunal to determine the operation of section 246A of the RTRA Act to decide the appeal. Given the error of law, as referred to above, the Appeal Tribunal set aside the initial decision and remitted the matter to a differently constituted Tribunal.

Conclusion

While we still await a published decision of the Tribunal regarding retaliatory action under section 246A (and 276A) of the RTRA Act, the decisions of Du Preez and De Bruyne remain important decisions for property managers and lessors to be aware of when considering action to be taken under the RTRA Act.

Property managers and lessors must also remember that section 291(3) of the RTRA Act remains in force, and section 246A does not amount to the only form of retaliatory action that can be considered by 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 regarding all aspects of a dispute. If property managers have any concerns about a residential tenancy dispute, including compliance with the RTRA Act and any other relevant legislation, it is strongly recommended that they seek legal advice.

Read another property management article: Application for rent reduction for loss of amenity dismissed on appeal.

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