Bunting v S Drakos Real Estate Pty Ltd & Ors [2025] QCATA 31

• [1] This is an appeal from a decision made by an adjudicator in the Tribunal's minor civil dispute jurisdiction.
• [2] Ms Bunting was a tenant in residential premises. She made various complaints about the conduct of the landlord and the landlord's agent and about the rented premises. Ms Bunting filed an application for minor civil disputes - residential tenancy dispute claiming compensation totalling $25,000.
• [3] On 6 September 2023 an adjudicator dismissed Ms Bunting's application. Ms Bunting appeals the decision.

Appeals from decisions in the minor civil disputes jurisdiction

• [4] A party may appeal to the appeal tribunal against a decision of the tribunal.[1] An appeal against a decision in a proceeding for a minor civil dispute may only be made with the leave of the appeal tribunal.[2]
• [5] The well-established principles to be applied in considering whether leave to appeal should be granted are:

(a) Is there a reasonably arguable case of error in the primary decision?[3]

(b) Is there a reasonable prospect that the applicant will obtain substantive relief?[4]

(c) Is leave necessary to correct a substantial injustice to the applicant caused by some error?[5]

(d) Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[6]

• [6] If leave to appeal is granted and the appeal is allowed on a question of law the appeal tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter for reconsideration.[7]
• [7] Where a question of fact or mixed law and fact is raised, the appeal must be decided by way of rehearing. The appeal tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter for reconsideration.[8]

• [8] Before undertaking the exercise of identifying the grounds of appeal it is necessary to say something about the way in which the applicant has conducted the appeal proceeding. The applicant filed the application for leave to appeal on 20 September 2023. On 27 September 2023 the applicant was directed to file appeal submissions by 9 November 2023. The time for compliance with this direction was subsequently extended on a number of occasions. On 14 December 2023 directions were made that if the applicant did not comply with the direction by 12 February 2024 the application for leave to appeal would proceed on the basis of the material the applicant had already filed. The applicant did not comply with the direction. Accordingly, insofar as the grounds of appeal and the applicant's primary submissions are concerned, the appeal proceeds on the basis of the application for leave to appeal and accompanying documents.
• [9] Not all of the grounds set out in the application for leave to appeal and appeal are proper appeal grounds. The grounds, insofar as they can be discerned, may be grouped as follows:

(a) The applicant was not afforded procedural fairness at the hearing;

(b) The adjudicator erred in not dealing with the applicant's claim for compensation for stress, trauma and the time taken by the applicant in preparing the proceeding;

(c) The adjudicator erred in not engaging with the material facts of the case, or the evidence filed by the applicant, in making the decision;

(d) The adjudicator erred in not dealing with the applicant's complaints about the proposed increase in rent and being offered a short term lease as constituting retaliatory action;

(e) The adjudicator erred in not finding the landlord's mowing of the lawn at the property constituted a breach of the applicant's privacy and peaceful enjoyment of the property.

• [10] It is appropriate to address the grounds of appeal against the background of the various claims made by the applicant in the proceeding below.
• [11] The learned adjudicator observed at the hearing that she found the application confusing. The applicant agreed.[9] It may be fairly observed that the originating application filed by the applicant lacked focus and adopted a 'scattergun' approach to the various issues raised.
• [12] The hearing below took place on 6 September 2023. Prior to the hearing the Tribunal had ordered that any material a party sought to rely upon was required to be filed by 25 August 2023. The Tribunal further ordered that the parties would not be permitted to rely upon any further material without the leave of the Tribunal. The applicant applied for an extension of time to file her material. On 5 September 2023, the day before the hearing, the Tribunal ordered that the material filed by the applicant on that date be deemed to have been filed in compliance with the previous order. The statement of evidence by the applicant runs to some 66 pages and 256 paragraphs. There are various annexures to the statement running to 49 pages. There are 98 numbered attachments to the annexures. These exceed, in total, well over 200 pages. The statements and various attachments traversed a wide array of matters, some of which were relevant and many of which were not. It is necessary to consider that material in the context of the tenancy dispute application filed by the applicant.
• [13] The complaints made by the applicant, relevant to the determination of the appeal, and as referred to in the material filed by the applicant in the proceeding below, may be summarised as follows:

(a) The agent had entered the property on a number of occasions without giving the required notice under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ('RTRAA');

(b) The applicant had been given a notice to remedy breach as a result of the applicant's failure to clean mould observed by the agent during an (unannounced) inspection by the agent;

(c) The lessor's father had entered the property on various occasions to undertake lawn mowing without the required notice under the RTRAA being given;

(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;

(e) The premises were partly unfit to live in as a result of which there should be a decrease in the rent payable;

(f) The front door of the property was not secure or weather-proof and electrical work was required to be carried out relating to a kitchen light fitting.

• [14] On 27 March 2023 the applicant had lodged a dispute resolution request with the Residential Tenancies Authority ('RTA'). The dispute notice identified three issues: 'Lease renewal not done properly; Continue to conduct inspections without me receiving notices at times I am asleep as I work nights. They don't call, they just let themselves in; Now they claim I am responsible for mould that isn't my responsibility to fix.'
• [15] Section 416(1) of the RTRAA provides that the lessor or tenant under a residential tenancy agreement may apply to QCAT about an issue only if the applicant has first made a dispute resolution request about the issue to the RTA and the conciliation process has ended without a conciliated resolution having been reached or a conciliated resolution is reached but the applicant reasonably believes the other party has breached the conciliation agreement. Section 416(2) provides that s 416(1) does not apply to urgent applications. Section 415 sets out the meaning of 'urgent application'.
• [16] While the applicant's material traversed the many complaints about the lessor and the agent and made reference to various provisions of the RTRAA, it seems apparent from the transcript that the applicant was not aware of the application of s 416 of the Act. It does not appear that the applicant was alive to the difference between urgent and non-urgent applications, nor of the consequences of failing to comply with the provisions of the RTRAA where the pre-proceeding conciliation process was required to be undertaken.
• [17] I turn now to the grounds of appeal.

Grounds of appeal 1 and 3 - failure to afford procedural fairness and failing to engage with the facts

• [18] Grounds of appeal 1 and 3 are related. The applicant says the adjudicator erred in failing to afford her procedural fairness and in not engaging with the material facts of the case or the evidence filed by the applicant, in making the decision.
• [19] The applicant says that she was not given the opportunity to 'introduce anything to the court' nor was she 'asked if there was anything (she) needed to say prior to the Hearing commencing.' This complaint appears to be directed at the difficulties the applicant had encountered in filing the material she sought to rely upon. The applicant says that, on the day prior to the hearing, she filed her statement of evidence together with an application to adjourn the hearing and an application to extend time to file the statement. The applicant says that the documents were stamped by the QCAT registry and that she was advised to 'let the member know about this' at the hearing on the following day. The applicant says that 'none of my documents ... got a chance to be mentioned, let alone handed to the Adjudicator ... (and that) nothing in her demeanour and running of this Hearing made it possible for me to advise her.'
• [20] There is nothing in the transcript to indicate that the applicant was not afforded the opportunity to present her case. In the very busy minor civil disputes jurisdiction multiple matters are listed to be heard within constrained time periods. Tribunal adjudicators are required to exercise a tighter degree of control in conducting a hearing in these circumstances than might otherwise be the case in the Tribunal's other jurisdictions. The procedure at the hearing was at the discretion of the adjudicator.[10] The adjudicator was required to observe the rules of natural justice[11] and to act with as little formality and technicality and with as much speed as the requirements of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and the RTRAA and a proper consideration of the matters before the Tribunal permitted.[12] I am satisfied that the parties were, insofar as the conduct of the hearing is concerned, given a fair hearing.
• [21] However it is apparent from the transcript and from the applicant's appeal submissions, that the adjudicator was not made aware of the extensive material filed by the applicant the day before the hearing nor did the adjudicator have reference to the material in deciding the matter. The applicant concedes that she did not bring to the attention of the adjudicator that the material had been filed. Having been filed the material formed part of the Tribunal record. One cannot be critical of the adjudicator in these circumstances. What may be assumed to be an administrative oversight by the Tribunal registry in not ensuring that all material filed by the parties was on the file at the time of the hearing led the adjudicator into error in deciding the matter without reference to the material filed by the applicant. Had the late filing of the material been brought to the attention of the adjudicator the issue of potential prejudice to the respondents would likely have arisen. There is no evidence before the Appeal Tribunal to suggest that the respondents were served with the material. Given the extent of the applicant's material it seems almost inevitable that a consideration of the material by the adjudicator would have led to an adjournment of the hearing.
• [22] Nevertheless, the failure by the adjudicator to consider the material filed by the applicant is a sufficient basis upon which to grant leave to appeal.

Ground 2 - failing to deal with the claim for compensation and the application for a decrease in rent

• [23] The applicant says that the adjudicator erred in not dealing with the applicant's claim for compensation for stress, trauma and the time taken by the applicant in preparing the proceeding. In dealing with appeal ground 2 I will also address the claim by the applicant for a decrease in rent.
• [24] The adjudicator correctly stated at the commencement of the hearing that the Tribunal did not have jurisdiction to decide the applicant's claim for trauma and stress.[13]
• [25] The applicant complained about issues relating to the front door of the house and a light in the kitchen. The applicant conceded at the hearing that her complaints regarding the kitchen light had been addressed. As to the complaint regarding the front door, the applicant said that the door was not solid and did not fit the frame and that it 'let in a lot of air and cockroaches.'[14]
• [26] By s 221(1) of the RTRAA a tenant may apply to the tribunal for an order about emergency repairs to premises if the premises require repair and the tenant has either been unable to notify the lessor of the need for repair or the repair was not made within a reasonable time after the tenant gave notice of the need for the repair. The meaning of 'emergency repairs' is defined.[15] An application for an order about emergency repairs is an urgent application and a tenant is not required to engage in the pre-proceedings conciliation process before commencing a proceeding in QCAT. Repairs that are not emergency repairs are routine repairs.[16] A tenant must comply with the pre-proceeding conciliation provisions of the RTRAA before filing an application for an order about routine repairs.
• [27] There was no evidence before the Tribunal that the applicant's complaints about the front door constituted a fault or damage that made the premises unsafe or insecure.[17] Any issue regarding the front door was, at best, a routine maintenance issue and there was no evidence the applicant had complied with s 416(1) of the RTRAA. In the absence of compliance with the pre-proceeding conciliation process the applicant was not entitled to commence a proceeding relating to the front door.
• [28] The applicant also sought compensation for the cost associated with the purchase of a lawn mower. I will address this claim under ground of appeal 5.
• [29] Section 94 of the RTRAA relates to rent decreases. Where it is alleged that premises are partly unfit to live in, the Tribunal may make an order for a decrease in rent if the tenant applies for an order and the Tribunal is satisfied that the premises are partly unfit to live in. An application for an order for a decrease in rent is subject to the application of s 416(1), that is, the tenant must first have engaged in the pre-proceedings conciliation process. The applicant did not comply with s 416(1) as it related to the claim for decrease in rent before commencing the proceeding below. She was not entitled to bring such a claim in the absence of compliance with the Act.
• [30] Ground of appeal 2 is not made out.

• [31] The applicant says the adjudicator erred in not dealing with the applicant's complaints about the proposed increase in rent and being offered a short term lease as constituting retaliatory action.
• [32] Section 246A of the RTRAA empowers the Tribunal to make an order to set aside action taken by a lessor if the Tribunal is satisfied that the action was taken to intimidate or punish a tenant for taking certain action as set out in s 246A(1)(a)(i). An application for an order relating to retaliatory action is an 'urgent application.'[18] This means that the requirements of s 416(1) do not apply with respect to such a claim.
• [33] An application for an order relating to retaliatory action must be made within one month after the resident becomes aware that the lessor has taken the action.[19]
• [34] The applicant told the adjudicator that the lessor was proposing a rent increase of $130 per week which was retaliatory and excessive.[20] The applicant said that she had been given two months notice of the proposed increase.[21] The adjudicator considered whether s 71 of the RTRAA applied. The adjudicator considered whether the applicant was required to comply with s 416(1) before bringing the application. The applicant said that an application relying upon s 71 was a non-urgent application.[22] The basis upon which s 71 might have been relevant is not immediately apparent. Section 71 only applies if, among other things, the lessor of the premises enters into a new agreement with the tenant for the premises that starts after the end of the existing agreement and the new agreement contains one or more significant changes to the terms of the existing agreement. At the date of the hearing, the parties had not entered into a new agreement to commence after the expiration of the existing tenancy.
• [35] It seems that the adjudicator's reference to s 71 had the result of leading the hearing away from a consideration of the applicant's claim based on retaliatory action. Having raised the allegation of retaliatory action, it was necessary for the adjudicator to consider the application of the relevant provisions of the RTRAA. Retaliatory action falls into four categories: giving a resident a notice to remedy breach, other than a notice relating to a failure to pay rent for at least seven days; increasing the rent payable under the residential tenancy agreement; taking action to end the residential tenancy agreement; refusing to enter into a further residential tenancy agreement, at the end of the current agreement, with the tenant.[23]
• [36] In Du Preez v Linda's Homes Pty Ltd ('Du Preez')[24] the QCAT Appeal Tribunal stated:

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.

• [37] In Du Preez the Appeal Tribunal said 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. In De Bruyne v Ray White Waterford[25] the Appeal Tribunal noted the importance of the need for a decision maker to avoid the fallacy that assumes a causal relationship between two events because one occurred before the other:

In other words, 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.[26]

• [38] The evidence below was that a notice to leave had been given by the lessor on 3 July 2023 requiring the applicant to vacate the premises by midnight on 15 September 2023. On 21 July 2023 the applicant wrote to the agent and advised that the tenancy was periodic and that she did not consider the notice to leave valid. On 26 July 2023 the agent wrote to the applicant and advised that the tenancy was periodic and that the notice to leave was withdrawn. On 26 July 2023 the applicant gave the lessor a notice to remedy breach relating to the broken kitchen light, the front door and the presence of mould in the premises. On the same date the applicant wrote to the lessor and the agent advising that she had applied to the RTA for a Notice of unresolved dispute to be issued. The issuing of the notice was a necessary step before proceedings could be commenced in QCAT. On 2 August 2023 the agent wrote to the applicant advising that from 3 October 2023 the rent for the property would increase by $130.00 per week and advising that a new tenancy agreement for a six month term had been delivered to the applicant. On 4 August 2023 the applicant commenced the proceeding in QCAT. As may be seen from the foregoing chronology, all of these events occurred in fairly close succession.
• [39] At the hearing the applicant said that the retaliatory action she was asserting had been engaged in by the respondents was the offer of the new lease and the increase in rent.[27] It appears from the transcript that the adjudicator then proceeded on the basis that the applicant's complaint about retaliation was confined to the notice to leave which had been withdrawn.[28] As has been referred to earlier in these reasons, the applicant said at the hearing that she considered the proposed rent increase to be retaliatory and excessive.[29] The complaint by the applicant about retaliatory action was not related to the notice to leave. It was at this point of the hearing that the adjudicator proceeded to consider s 71 of the RTRAA and thereafter did not engage with the applicant's application under s 246A. The failure by the adjudicator to consider the application of s 246A and the application for orders based on retaliatory action was an error of law.

Ground of appeal 5 - claim for breach of privacy and peaceful enjoyment

• [40] The applicant says that the adjudicator erred in not finding the attendances by the lessor's father at the property to mow the lawn constituted a breach of the applicant's privacy and peaceful enjoyment of the property.
• [41] Section 183(1) of the RTRAA provides that the lessor is required to take reasonable steps to ensure the tenant has quiet enjoyment of premises. Section 183(2) provides that the lessor or the agent is obliged not to interfere with the reasonable peace, comfort or privacy of the tenant in using the premises. Section 52 provides that if a duty is imposed on or an entitlement is given to a lessor or tenant, the duty or entitlement is taken to be included as a term of the residential tenancy agreement. The entitlement to quiet enjoyment and the duty not to interfere with the reasonable peace, comfort or privacy of the tenant as provided for in s 183 are therefore included in the terms of a tenancy agreement. By s 420(1)(e), if an application about a breach of a residential tenancy agreement is made to the tribunal the tribunal may make an order for compensation.
• [42] At the time of the hearing, the applicant had been a tenant of the premises for almost three years. There were three tenancy agreements, each for a period of 12 months. The validity of the third agreement had been challenged by the applicant. The lessor conceded that the tenancy at the time of the hearing was a periodic tenancy. It was a term of each of the tenancy agreements that the applicant was responsible for yard and garden maintenance and the removal of lawn clippings and green waste. On the copies of a number of the agreements before the Tribunal, beside the term relating to yard and garden maintenance, handwritten notations had been made by the applicant, variously 'landlord', 'currently done by landlord assume ongoing', and 'done by landlord'. The evidence of the agent was that the lessor had not agreed to vary the relevant term in the agreements.[30] As I have observed it was not disputed as between the parties that the tenancy at the time of the hearing was a periodic tenancy. The periodic tenancy continued on the same terms as applied immediately before the end of the preceding fixed term. The copy of the relevant fixed term tenancy agreement which was before the Tribunal contained no handwritten notations as have been earlier referred to. A special term of the agreement provided that the applicant was responsible for yard and garden maintenance and the removal of clippings and green waste. This term continued as a term of the periodic tenancy.
• [43] The adjudicator found that it was a term of the tenancy that the applicant was responsible for yard and garden maintenance and on this basis refused the applicant's claim to be compensated for the cost of purchasing a lawn mower. In light of my findings regarding the terms of the tenancy as referred to above, there was no error by the adjudicator in this regard.
• [44] As I have referred to earlier in these reasons, it was common ground that, from time to time, the lessor's father would attend at the property to mow the lawn. This was despite the applicant's obligation under the tenancy to do so. This arrangement appears to have arisen out of a verbal agreement between the parties that the lessor's father would, when he was available, mow the lawn. The applicant complained that notice of these attendances had not been given to her. At the hearing, the applicant referred to this as '... straight up a breach to the rules of entry.'[31]
• [45] A lessor may enter premises to make routine repairs to or carry out maintenance of the premises.[32] The lessor or lessor's agent may enter the premises only if, inter alia, the lessor or agent has given an entry notice to the tenant.[33]
• [46] I have referred earlier in these reasons to the dispute resolution request lodged by the applicant with the RTA. One of the issues of dispute referred to in the request was the continued 'inspections' being undertaken by the agent without appropriate notice being given. The evidence before the Tribunal may be summarised as follows. On 1 February 2023 the agent undertook an inspection of the premises. There was a factual dispute between the parties about whether notice had been given of the proposed entry by the agent. It was the visit on 1 February 2023 that resulted in the notification by the agent to the applicant regarding the presence of mould in the premises. On 4 March 2023 the agent gave another entry notice regarding a proposed inspection on 17 March 2023. The applicant was unhappy at receiving the notice and communicated this to the agent on 23 March 2023. On 26 March 2023 the applicant lodged the dispute resolution request with the RTA. Seen against this factual background it seems reasonably readily apparent that the complaint made by the applicant in the dispute resolution request related to the recent inspections by the agent. There was no mention of the lessor's father's attendances at the premises to undertake the mowing.
• [47] On the evidence before the adjudicator, insofar as any complaint by the applicant concerned the attendances by the lessor's father at the premises, it is not apparent that s 416(1) of the RTRAA had been complied with by the applicant. The applicant was not entitled to make an application to the Tribunal about any alleged breach of the tenancy agreement as a result of the attendances by the lessor's father to undertake the mowing absent the applicant complying with the pre-proceeding conciliation process under the RTRAA. There was no error by the adjudicator in not determining the applicant's claim for compensation arising out of these attendances.
• [48] This ground of appeal is not made out.

• [49] The applicant has been successful in the appeal albeit to the limited extent of her claim relating to retaliatory action.
• [50] Leave to appeal is allowed. The appeal is allowed limited to appeal ground 4 confined to the applicant's claim based on retaliatory action.
• [51] The decision of the Tribunal is set aside and the matter remitted to a differently constituted Tribunal to be heard and decided according to law and in accordance with these reasons.

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act'), s 142(1).

[3] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41 ('QUYD').

[4] Cachia v Grech [2009] NSWCA 232, [13].

[6] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580.

[13] Yates & Anor v Littlee Properties Pty Ltd [2020] QCAT 508.

[24] [2010] QCATA 2.

[25] [2020] QCATA 113.