Anderson v Lamond Estate Agents - Anturin Pty Ltd & Arthur Lewis [2026] QCATA 31

[1] For nearly six months the appellant was the tenant of a unit in Wynnum, owned by the second respondent and managed by the first respondents.[1] On 1 February 2023 the appellant lodged a Form 13 Notice to Leave (without grounds) because she could not endure the neighbour's smoking. However, on 13 February, prior to the move out day, the appellant obtained a report that there was asbestos at the premises and moved to a hotel the next day. The application referred, in Part E, to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ('RTA Act') s 94 and s 429.

[2] The matter was heard by an adjudicator on 12 September 2024 who delivered a decision and oral reasons that day dismissing the application. On 29 November 2024 the appellant filed in the Tribunal an Application for Leave to Appeal or Appeal from the decision which identified two grounds of appeal. The parties were directed to provide submissions. The appellant did this on 20 January 2025 and again on 4 March 2025 (having been given an extension of time to file submissions) when she raised several more grounds of appeal. The respondents filed their submissions on 3 March 2025 although the due date had been extended to 26 March 2025. While the respondents have only responded to the two original grounds of appeal, I am satisfied they were given an opportunity to provide submissions in response to the appellant's new grounds and that no prejudice will be caused by considering those grounds.

[3] The proceeding at first instance was a minor civil dispute, so the appellant requires leave to appeal to the Appeal Tribunal, whatever the ground.[2] Leave is usually only granted where there is a reasonable argument that there is an error which should be corrected and an appeal is necessary to correct a substantial injustice to the applicant,[3] although it may also be granted when the application raises an issue of general importance on which the decision of the Appeal Tribunal would be useful.[4] The requirement for leave to appeal reflects a legislative intention that ordinarily parties to a minor civil dispute will be confined to one judicial determination of the dispute.

[4] I will consider whether to grant leave in the course of considering each of the grounds of appeal. Given many of the grounds overlapped or were interrelated I have summarised the grounds where appropriate.

[5] The appellant claimed a refund of rent for the entire tenancy due to the presence of asbestos. The claim was made pursuant to ss 94 and 429 of the RTA Act. The appellant also claimed an amount for reimbursement of hotel charges, again, pursuant to s 429.

[6] The adjudicator did not mention s 94 or 429 of the RTA Act in his reasons for decision. However, at the outset of the hearing, he categorised the application as one for 'compensation under section 429' presumably because s 94 requires action to be commenced while the lease is current.

[7] During the course of the hearing the appellant also mentioned s 185 and misrepresentation in the context of a discussion she had with the agents prior to leasing the property which she alleged caused her to believe there was no asbestos at the premises which turned out not to be the case.

[8] The adjudicator summarised the appellant's claim to be that the owner had not met their responsibilities under s 185 of the RTA Act because the appellant had been exposed to asbestos. The conversation between the appellant and the property manager was referred to but the adjudicator merely pointed out that there was disagreement between the parties as to what had been said and that the respondents contended they were not professionals and did not know the difference between different types of building materials. The adjudicator did not make a finding or reach any conclusion about whether the misrepresentation about the presence of asbestos occurred.

[9] The adjudicator said that the appellant was 'entitled to be concerned about asbestos' but needed to establish:

(i) it was misrepresented to her; and

(ii) the asbestos at the premises had exposed her to risk.

[10] The adjudicator described this as a 'weighty burden' and was not satisfied she had discharged it. The report obtained by the appellant on 13 February 2024 was referred to as 'light on' and as having been obtained after the appellant had given her Notice to Leave (Form 13). The adjudicator also noted that the appellant at the time she gave the Form 13 was leaving due to her neighbour's smoking and that she did not notify the respondents about the asbestos until after she left the premises.

[11] The adjudicator noted that the respondents had done work to remedy the ceiling in the bathroom and sealed the wall inside the cupboard, although he added that he thought that the respondents maintained the wall had always been sealed with an undercoat and that 'that would seem to be suggested'.

[12] The adjudicator referred to absence of any affidavit from Mr Dalgliesh outlining the 'huge risk' that the appellant believed she'd been exposed to. Nor were there any medical reports.

[13] Finally, the adjudicator rejected the appellant's claim that the respondents had failed to carry out their obligations under the RTA Act and said that the evidence and timeline seemed to suggest otherwise. Accordingly, the application was dismissed.

[14] The application for leave to appeal set out two grounds of appeal:

(i) The adjudicator relied on an email exchange between the property manager and the Brisbane City Council that was not related to the issue before the tribunal, being the unsealed wall inside the cupboard, not the ceiling issue. The Council was not advised of the unsealed asbestos wall.

(ii) The adjudicator said I did not provide a medical certificate. The matter is not for damages requiring medical evidence. It is for rent reduction for breach of s 185 of the General Tenancy Agreement.

[15] The appellant, in Part D, says she wants an order that the respondents pay her the sum of $8 496.57 for breach of s 185 of the tenancy agreement for renting her a unit with a large wall of unsealed asbestos.

[16] In submissions in writing in support of the appeal the appellant purported to add other grounds. The matters are set out in a discursive way and it is difficult to identify specific grounds of appeal. I have added the complaints I can identify to the initial grounds of appeal, which can be summarised as follows:

(a) The claim was treated as one for damages when it was for a rent reduction.

(b) There was no consideration of s 185 of the RTA Act.

(c) Lack of medical evidence was irrelevant to a claim under s 185.

(d) That the unsealed cupboard wall was discovered after the Form 13 was issued did not mean the respondents had not breached s 185.

(e) There was insufficient regard to the appellant's report in determining whether there had been a breach of s 185.

(f) Too much weight was attributed to the fact the Brisbane City Council had been notified of asbestos and 'closed their file' given the Council was unaware of the unsealed cupboard wall.

(g) The adjudicator wrongly believed the cupboard wall was sealed.

(h) The adjudicator did not take into account she was vision impaired and unable to discover the unsealed cupboard wall until she had the premises inspected.

(i) The adjudicator referred to the leave date as 9 February when it was 19 February.

[17] On 3 March 2025 the respondents submitted in response:

(i) There was no error of fact in referring to the complaint made to the Brisbane City Council. The applicant had raised issues with the ceiling, which was the subject of that complaint, in her original application for dispute. The issue with the unsealed cupboard wall was only raised after the she had given notice to leave on other grounds; the cupboard was not damaged, disturbed or deteriorating; there was no evidence the premises were unliveable and the applicant left the premises at the same time she notified the respondents of her concerns, before the cupboard wall could be tested for asbestos and/or painted.

(ii) The tribunal's reference to the absence of any medical evidence was not an error of law. The absence of any medical evidence was one factor that was relevant in determining whether the premises were unfit to live in as alleged, based on the applicant's claims concerning the interior wall of a cupboard.

Consideration - claim for rent reduction not damages

[18] The principal basis for the appellant's claim for relief advanced at first instance was that there was an unsealed wall inside a cupboard which was highly likely to be asbestos, and that because of that she was entitled to a total refund of the rent paid. The original application referred to s 94, but that provision deals with changes in the condition of the premises after the commencement of the tenancy.[5] It is not in dispute that the unsealed cupboard wall existed at the commencement of the tenancy as did the crack in the bathroom wall.

[19] A difficulty for the appellant is that it has been held that an application for relief under s 94 can only be made during the tenancy.[6] It was not. It follows that there was no power under s 94 to make an order that the rent be refunded or reduced to nothing from the date the tenancy commenced. Presumably this is the reason the adjudicator focused on whether the appellant had an entitlement to compensation. While the adjudicator, ideally, should have dealt with the appellant's claim for a rent reduction under s 94 and explained why it could not succeed, there was no substantial injustice caused by his omission to do so.

[20] I refuse leave to appeal in relation to this ground.

[21] The appellant raises a number of complaints about the way the adjudicator dealt with s 185 of the RTA Act. I will deal with the complaints listed as (b), (c) and (d) above, together under this heading.

[22] The adjudicator began by referring at the commencement of the hearing to the appellant's application as one for 'compensation under s 429 of the RTA Act'. The appellant referred to s 429 in her original application for minor civil dispute and, in her submissions in support of her application, to s 185. Section 429 applies where there is a dispute about an agreement between a lessor and tenant and gives the Tribunal broad power to make any order it considers appropriate to resolve the dispute. Section 429 has been described as a "... general catch-all provision. It is not intended to override those special provisions that the [RTRA Act] has addressed with detail and particularity."[7] I agree that s 429 as a general provision, should be read subject to the application of the more specific provision in s 419.[8]

[23] The issue was whether the appellant was entitled to compensation due to the unsealed cupboard wall. The only way the Tribunal can order compensation for lack of amenity under the RTA Act is under s 94 (by way of a decrease in rent, which did not apply for the reasons outlined above) or s 419.[9]

[24] Section 419 applies, relevantly, if a tenant claims there has been a breach of a term of a residential tenancy agreement. By s 419(2) the tenant may apply to the Tribunal for an order about the breach. The application must be made within 6 months after the tenant becomes aware of the breach and can be made after the end of the agreement. If a breach is established, compensation can be ordered under s 420.

[25] The reference in s 419(1) to a term of the agreement includes any duty imposed on a lessor under the RTA Act: s 52 of the RTA Act. This has the effect of making a statutory obligation, like the one in s 185(2), a term of the agreement.

[26] The appellant relies on s 185(2)(b) and (c), which require the lessor, at the start of the tenancy, to ensure, respectively, that the premises are fit for the tenant to live in and in good repair. If the premises are not in the required state at the beginning of the tenancy, the breach occurs at that time, and the six month time limit for bringing the claim runs from when the tenant became aware of the problem. It is the responsibility of the lessor to be aware of the state of the premises at the beginning of the tenancy.[10] If a problem arises during the tenancy, for example, the issue with the ceiling in the bathroom, the lessor cannot be in breach of the duty to repair and maintain in the Act and in the agreement until the lessor (or agent) is aware of the problem, and does not deal with it within a reasonable time.

[27] The adjudicator, though he did not specifically mention s 185, referred to the appellant's claim that the respondents had not carried out their responsibilities under the RTA Act and concluded that 'the evidence and timeline suggested otherwise'. He was also not satisfied that the cupboard wall or any of the other defects present at the commencement of the tenancy, rendered the premises unfit to live in or not in good repair. The adjudicator, in stating there was no medical evidence or affidavit to say she had been exposed to "huge risk", was most likely directing himself to the issue of whether the premises were fit to live in. This was a relevant consideration. Given the evidence before him, the adjudicator was not satisfied the premises were unfit to live in.

[28] This finding of fact is difficult to challenge on appeal. Leave to appeal in a minor civil dispute to challenge findings of fact is not readily given. It may be that, strictly speaking, the appellant was entitled to nominal damages for breach of the agreement even if no real loss was proved, but failing to receive an award of nominal damages does not amount to a substantial injustice to the appellant.

[30] A number of the appellant's complaints deal with the weight the adjudicator attributed to various aspects of the evidence. I will deal with complaints (e), (f) and (g) together under this heading.

[31] The appellant contends that the adjudicator did not give appropriate weight to the report by Mr Dalgliesh, which said that the likelihood of the unsealed wall being asbestos was 'high', particularly in circumstances where there was no evidence from the respondents to counter that.

[32] There was no evidence of the qualifications of Mr Dalgliesh, or his experience, such as to permit opinion evidence from him.

[33] The 'report' was a short email from Mr Dalgliesh of Jim's Building Inspections that said that the sample he had taken from the toilet wall where it had broken had been tested and come back positive for asbestos. In respect of the cupboard wall, it said:

The back of the cupboard wall in the entry area was a Fibre cement product (potentially asbestos as well) and was unsealed and so any fibres from that wall are not encapsulated. It is not known whether that cupboard wall contains asbestos as no sample was taken, but the likelihood that it does contain asbestos is high.

It is recommended that the back of the cupboard be painted or kept closed and not used until further testing is done to confirm the presence of asbestos in this area.

[34] The cupboard wall had not been tested and the 'report' stopped short of concluding that the wall was asbestos. The opinion of Mr Dalgliesh relied upon by the appellant (that the likelihood of it being asbestos was 'high') did not identify the grounds upon which it was based, making it of little, if any, evidentiary value.[11] As noted above, it is also not clear what Mr Dalgliesh's qualifications are or whether he is experienced in identifying asbestos. There is no error of fact in failing to make a positive finding that the wall was asbestos, based on that 'report'.

[35] The appellant also argued that the adjudicator erred in not drawing an inference that the wall was asbestos in circumstances where the respondent had an opportunity to provide evidence to the contrary but did not do so.

[36] It is well settled that, in the ordinary course of legal reasoning, an inference may be drawn contrary to the interests of a party who, although having the power to provide evidence on an issue, declines to do so. Thus, for example, there may sometimes be an inference in civil cases that the evidence, if called, would not assist that party's case: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. In other cases, the failure to give evidence may result in more ready acceptance of the evidence for the other party or the more ready drawing of an inference that is open on that evidence.[12]

[37] Even if the adjudicator erred in not drawing the inference against the respondents that the wall was asbestos, the error was not material, given the lack of evidence to support the appellant's case that the presence of the asbestos wall caused her compensable damage. The appellant, in order to succeed was required to demonstrate that the premises were not fit to live in. Whether or not the back wall of the cupboard contained asbestos, the appellant has not proven that the premises were unfit to live in at the relevant time. The adjudicator did not err in so finding, given the evidence before him.

[38] For the reasons above, there has been no error in the weight given to Mr Dalgliesh's 'report' nor in the failure to find the cupboard wall was asbestos. Leave to appeal in respect of these grounds is refused.

[39] The appellant argues the adjudicator was mistaken in thinking the cupboard wall was sealed, presumably making an error of fact. The adjudicator did not make a finding that the cupboard wall was sealed. The adjudicator referred to the fact the respondents had said that they had sealed it now. This indicates that the adjudicator accepted that the wall was not sealed before that. The adjudicator then said:

I think [the respondent's] view is that the cupboard wasn't unsealed, that, in fact, there was an undercoat on it, and that would seem to be suggested.

[40] The adjudicator made comments supporting both views but, in the end, did not make a definitive finding one way or the other. In any event, whether the wall was sealed was immaterial in circumstances where there was no finding that the wall was asbestos or, that if there was, the premises had not been shown to be unfit to live in.

[41] Finally, the appellant argues that the adjudicator placed too much weight on the fact the Brisbane City Council had closed its investigation. The appellant argues that the weight was misplaced given the Council was unaware when they closed the case, of the issue with the cupboard wall. Again, for the reasons outlined above, the adjudicator did not err in considering the Council's response to an anonymous complaint about the presence of asbestos at the premises. There was dialogue in the hearing concerning exactly what the Council investigation addressed. The adjudicator was aware of the point the appellant was seeking to make, that is, that when they closed the case they did not know about the cupboard wall.

[42] The adjudicator makes only passing reference to the involvement of the Council, to the effect that the respondents had brought a complaint about asbestos to the attention of the Council and that there was no evidence the Council was concerned about it or were refusing to allow the respondents to rent out the property. The adjudicator has not erred in fact in stating that to be the case. Leave to appeal on this ground is refused.

[43] The appellant contends the adjudicator erred in failing to take into account she was vision impaired and unable to discover the unsealed cupboard wall until she had the premises inspected. This is irrelevant to a claim under s 94 or for damages for a breach of s 185. It follows there is no error in failing to consider it.

[44] The appellant contends the adjudicator erred by referring to the leave date as 9 February when it was 19 February. Although the adjudicator made this error of fact, nothing turns on it and so leave to appeal in respect of this ground is refused.

[45] As no appealable grounds have been established, leave to appeal is refused.

[46] For completeness, the application is dismissed.

[1] For convenience I shall refer to Ms Anderson as the appellant and to Lamond Estate Agents and Arthur Lewis as the respondents.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).

[3] Campbell v Queensland Building and Construction [2021] QCATA 34 at [17].

[4] Allen v Queensland Building and Construction Commission [2024] QCA 24 at [21].

[5] Dearlove v Wavar Pty Ltd [2024] QCATA at [23].

[6] Gould v Mazheiko [2020] QCATA 10 at [18], per Daubney J.

[7] Khromeenkova v PRD Robina Nationwide [2021] QCATA 35 at [43]; Jackson v ManageMe Property Management Solutions Pty Ltd [2024] QCAT 18 at [30].

[8] Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 14:

Where there is a general provision which, if applied in its entirety, would neutralize a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply.

[9] Bauer v McMillan [2013] QCATA 140 at [11]. See now s221A(4) which gives power to award compensation where a repair order is made.

[10] Gration v C Gillon Investments Pty Ltd [2005] QCA 184 at [8].

[11] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 at [59].

[12] G v H [1994] HCA 48 at [22].