Guirao v Ray White Townsville [2025] QCATA 64

This matter was heard and determined on the papers pursuant to s 32 of the (Qld)

[1] This matter concerns an application for leave to appeal and appeal filed on 21 March 2023.
[2] The applicant, Ms Guirao, signed a general tenancy agreement with Explore Rentals One Pty Ltd on 1 February 2022. The agreement was renewed on 21 April 2022, for a further 12-month lease. The respondent, trading as Ray White Townsville, acts as the property manager for the subject property, 2/13 Shelton Street, Kirwan.
[3] On or about 2 January 2022, Ms Guirao notified her property manager that the air-conditioning unit was tripping the power in the property. On 4 January 2022, the respondent issued a job request to Jackson Electrical to check the air conditioner for faults.
[4] Upon inspection, Jackson Electrical determined that the air-conditioning unit was not tripping the power. In evidence at the hearing Ms Guirao was asked if the power had tripped out since, and she answered "no".
[5] Special Term 2 in the tenancy agreement states the following:

"Should a repair or maintenance item be found to be tenant related/fault/unnecessary call out e.g. Not a faulty product or no issue found by tradesperson, the tenant may be responsible for the payment of the invoice within 30 days."[1]

[6] This special term gives the lessor discretion as to whether the tenant is responsible for the payment of the invoice.
[7] On 1 February 2022, the property manager emailed Ms Guirao an invoice for the electrical inspection in the amount of $93.50, claiming that as no fault was found with the appliance, the applicant was liable to pay the call-out fee, as stated in Special Term 2 in the general tenancy agreement between the tenant and lessor.
[8] Ms Guirao disputes that she is liable to pay the invoice and relies on the Residential Tenancies and Rooming Accommodation Act 2008 (RTRAA) ss 54, 163, 185, 217 and 246A.
[9] The applicant made the following statement in email correspondence on 2 February 2022:

"Further, should you attempt to retaliate against me in any form, I place you the acting agent on Notice, that any and all invoices arising from frivolous or unsubstantiated claims, will place you, the acting agent in commercial liability."[2]

[10] After some correspondence back and forth between Ms Guirao and the property manager, on 18 October 2022, the applicant lodged a dispute resolution application with the Residential Tenancies Authority (RTA). The dispute resolution process was unsuccessful, and a notice of unresolved dispute was issued on 13 January 2023, meaning that the Queensland Civil and Administrative Tribunal (QCAT) could then exercise jurisdiction.[3]
[11] The applicant proceeded to file an application with QCAT on 24 January 2023 under RTRAA section 246A.
[12] A hearing was held on 3 March 2023 before a Magistrate acting as a Tribunal Member. Ms Guirao and the property manager both appeared in person to address the Tribunal. The Tribunal Member dismissed Ms Guirao's claim[4] and found that the special term in the tenancy agreement was clear. Further, the Tribunal Member held that there was no evidence before the Tribunal that suggested or confirmed that there was retaliatory action taken by the respondent to satisfy the requisite test.
[13] On 21 March 2023, the applicant lodged an application for leave to appeal and appeal the decision.

[14] Ms Guirao must obtain leave to appeal from the Appeal Tribunal to appeal a decision in a proceeding for a minor civil dispute.[5] Leave to appeal will only be granted where it is necessary to correct a substantial injustice, and where there is a reasonable argument that there is an error to be corrected.[6]
[15] The test is well established. To grant leave, the Appeal Tribunal must be satisfied that:

(a) there is a reasonably arguable case of error in the primary decision;[7]

(b) there is a reasonable prospect that the appellant will obtain substantive relief;[8]

(c) leave is needed to correct a substantial injustice caused by some error;[9] or

(d) there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[10]

[16] Ms Guirao asserts that questions of fact and law exist in this appeal. If leave to appeal is granted, where a question of fact or mixed law and fact is raised, the Appeal Tribunal upon rehearing may confirm or amend the original decision, set aside the decision and substitute its own decision, or set aside the decision and remit the matter for reconsideration.[11]
[17] The appeal process is a means to correct an error by the Tribunal in the original proceedings.[12] Ms Guirao must prove that the original decision maker erred in fact and/or law when making the determination.

[18] In her application for leave to appeal, Ms Guirao states that the appeal is made pursuant to sections 26, 27 and 149 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). In actuality, the appeal is made pursuant to QCAT Act s 142.
[19] The grounds upon which Ms Guirao brings her appeal, if leave is granted, are that: the special term included in her general tenancy agreement is inconsistent (and therefore invalid) with a standard term; that charging the call-out fee in the context of the legislation constitutes retaliatory behaviour by the respondent; and, that the original decision maker erred in satisfying QCAT Act s 3 on natural justice principles and not fact finding pursuant to said legislation in material filed.
[20] While this appeal concerns a relatively small amount of money, $93.50, I acknowledge that for many tenants, particularly pensioners, this amount of money is significant. I also acknowledge the submission from Ms Guirao that she has not been able to access the transcript of the original hearing due to financial constraints.[13]
[21] In considering an application for leave to appeal, in Lane & Mares v Niedzel Pty Ltd t/as Across Country Real Estate and Livestock[14] Judicial Member Forrest SC observed that $66.40 is an "amount of money [that] can make quite a difference ... on a week-to-week basis."[15] However, in that case the Judicial Member also identified "a couple of material errors of fact" in the determination of the claim.[16] For the reasons that follow I do not find any error in the decision of the Tribunal Member.

(1) If a provision of this Act is inconsistent with a term of a residential tenancy agreement, the provision prevails and the term is void to the extent of the inconsistency.

(2) If a standard term of a residential tenancy agreement is inconsistent with a special term of the agreement, the standard term prevails and the special term is void to the extent of the inconsistency.

[23] Ms Guirao submits that Special Term 2 is inconsistent with both the RTRAA and its standard terms. I will deal with both subsections of section 54 in turn.

Section 54(1) - is Special Term 2 inconsistent with the RTRAA?

[24] In her submissions, Ms Guirao identifies Special Term 2 to be inconsistent with sections 163, 185 and 217 of the RTRAA_._
[25] Section 163 RTRAA reads as follows:

(1) The lessor must pay all charges, levies, premiums, rates or taxes payable for the premises.

(c) the tenant is an entity receiving financial or other assistance from the State to supply rented accommodation to persons.

[26] Section 164 RTRAA defines "service charge" to include charges payable for electricity, gas or water supplied to the premises, or another service or facility, prescribed under a regulation, supplied to, or used at, the premises.
[27] Inconsistency between Special Term 2 and section 163 might only arise if a call-out fee in respect of a repair or maintenance item constitutes a charge, levy, premium, rate or tax payable for the subject property.
[28] Examples of fees that would fall into this section include land taxes, environmental levies, insurance premiums and general rates determined by the relevant council. The intention of this section is not to cover contractor call-out fees such as the $93.50 in dispute.
[29] Therefore, Special Term 2 does not interact with section 163 of the RTRAA at all, let alone create an inconsistency between the two.
[30] Ms Guirao also references an inconsistency between Special Term 2 and section 185.
[31] Section 185 steps through the lessor's general obligations. Most relevantly, Ms Guirao references subsection (3), the continuing obligations of the lessor throughout the tenancy:

(a) must maintain the premises in a way that the premises remain fit for the tenant to live in; and

(b) must maintain the premises and inclusions in good repair; and

(c) must ensure any law dealing with issues about the health or safety of persons using or entering the premises is complied with;

[32] Again, no inconsistency between the special term and this provision arises. The lessor may be obliged to maintain the premises and inclusions in good repair, while also requiring their tenant pay for any unnecessary call-out fee.
[33] For completeness, I say that there has been no breach of the lessor's s 185 obligations in this instance, for they promptly sent their nominated electrician to the premises to address the concern that the air-conditioning unit was tripping the safety switch.
[34] Thirdly, Ms Guirao relies on RTRAA s 217.

(1) If the tenant knows the premises or inclusions have been damaged, the tenant must give notice as soon as practicable of the damage.

(2) If the premises or inclusions need routine repairs, the notice must be given to the lessor.

[35] While Ms Guirao is correct that it is her responsibility as a tenant to notify her property manager of an electrical fault, this provision creates no inconsistency with Special Term 2. Ms Guirao notified the property manager on 2 February 2022 who engaged Jackson Electrical to inspect, where 'no fault [was] found' with the air-conditioning unit.
[36] There is no inconsistency with Special Term 2 and the provisions of the RTRAA raised by Ms Guirao.

Section 54(2) - is Special Term 2 inconsistent with a standard term?

[37] Standard terms for inclusion in a residential tenancy agreement are set out in Schedule 1, part 2 of the Residential Tenancies and Rooming Accommodation Regulation 2009 (the Regulation). A residential tenancy agreement to which the standard terms apply is a general tenancy agreement.[17] The residential tenancy agreement signed by the parties is a Form 18a general tenancy agreement, inclusive of all standard terms contained in the Regulation. Many standard terms are direct references to sections of the RTRAA, including sections 163, 185 and 217.
[38] As outlined above, I find no inconsistency between Special Term 2 and ss 163, 185, 217, nor do I identify any inconsistency with any standard terms contained in the general tenancy agreement.
[39] In the original decision, the Tribunal Member did not engage with these sections of the legislation. However, I note that the original application was made pursuant to RTRAA s 246A, which the learned Member dealt with substantially throughout the hearing.
[40] On this observation, it cannot be said that the original decision maker erred in their assessment of the law, nor their engagement with the facts.
[41] In any event, for the reasons above, Special Term 2 is not inconsistent with any provision in the RTRAA, nor its standard terms.
[42] Ms Guirao has not made out this ground of appeal.

[43] The applicant claims that Ray White Townsville has engaged in retaliatory behaviour pursuant to RTRAA s 246A:

(i) the tenant, or a representative entity, takes action to enforce the tenant's rights, including, for example, by -

(A) giving the lessor a notice to remedy breach; or

(B) requesting repairs or maintenance to the premises or inclusions; or

(D) applying to the tribunal for an order under this Act;

(ii) the lessor or lessor's agent knows the tenant or a representative entity has complained to the authority or another government entity about an act or omission of the lessor that adversely affected the tenant;

(iii) an order of the tribunal is in force in relation to the lessor and tenant; and

(b) after a matter mentioned in paragraph (a) arises, the lessor -

(i) gives the tenant a notice to remedy breach, other than a notice relating to a failure to pay rent for at least 7 days; or

(ii) increases the rent payable under the residential tenancy agreement; or

(iii) takes action to end the residential tenancy agreement; or

(iv) refuses to enter into a further residential tenancy agreement, at the end of the current agreement, with the tenant.

(2) The tenant may apply to the tribunal for an order to set aside the lessor's action if the tenant reasonably believes the action was taken to intimidate or punish the tenant for a matter mentioned in subsection (1)(a).

(3) The application must be made within 1 month after the tenant becomes aware of the lessor taking the action.

(4) The tribunal may make the order sought if the tribunal is satisfied the lessor's action was likely to have been taken by the lessor to intimidate or punish the tenant for a matter mentioned in subsection (1)(a).

(5) The tenant may form a belief under subsection (2), and the tribunal may be satisfied of a matter under subsection (4), whether or not -

(a) the tenant was intimidated or suffered a punishment; or

(b) any person was convicted or found guilty of an offence against this Act.

[44] The applicant claims that the respondent has acted in a retaliatory way by adding the disputed charge of $93.50 to the tenant ledger.
[45] Section 246A empowers QCAT to make an order to set aside the lessor's action if the Tribunal is satisfied that the action was taken to intimidate or punish the tenant for taking a certain action in s 246A(1)(a).
[46] Certainly, Ms Guirao requested repairs in relation to the air-conditioning unit which she considered was responsible for tripping the power.[18]
[47] Based on the submissions of the parties, the actions taken by the respondent do not fall into any category of s 246A(1)(b).
[48] The respondent did not, on the information provided, give Ms Guirao a notice to remedy any breach.[19]
[49] The respondent did not increase the rent payable under the residential tenancy agreement due to this incident.[20]
[50] The respondent did not take action to end the tenancy agreement,[21] nor refuse to enter into a further residential tenancy agreement.[22] In fact, the tenancy was renewed for another year after this incident occurred.
[51] On the information provided by the parties, no action has been taken by the respondent that satisfies the legal test for retaliatory action taken by a lessor.
[52] The following passage from Du Preez v Linda's Homes Pty Ltd[23] provides clarity around the bar that 'retaliatory' action must meet. President Wilson, as his Honour then was, explains:

"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."[24]

[53] I do not accept that adding the disputed amount of $93.50 on the tenant ledger constitutes retaliatory behaviour.
[54] I consider that there was a sound basis for the Tribunal Member's finding that the act of the respondent adding the call-out fee to the tenant ledger was not retaliatory. Rather, the tenant can be required to pay the call-out fee where the tradesperson determined there was 'no fault found'. There was no error, and this ground of appeal is not made out by the applicant.

[55] Ms Guirao refers to section 3 of the QCAT Act and claims that the original decision maker erred by not affording her natural justice. Section 3 refers to the objects of the Tribunal, but the provision most relevant to the assertion made by Ms Guirao is s 28(3): "in conducting a proceeding, the tribunal ... must observe the rules of natural justice."[25]
[56] The transcript shows that the learned Tribunal Member gave both parties the opportunity to state their case and present evidence to the Tribunal. The Tribunal Member said that he had reviewed the submissions.
[57] The matter was dealt with fairly, efficiently and quickly,[26] with the Tribunal Member delivering reasons at the hearing.
[58] I accept that in most cases, a lessor would be responsible for paying a call-out fee if, for example, the air-conditioning unit was faulty. However, in this case, there was no fault found by the electrical company. As was identified by the original decision maker, Special Term 2 of the tenancy agreement is clear: if there is no fault found by the tradesperson, the tenant may be liable to pay the call-out fee.
[59] Nothing persuades the Appeal Tribunal to depart from the Tribunal's findings. The evidence was capable of supporting the Tribunal's conclusions, and I have found no error of law with the learned Tribunal Member's decision.
[60] Ms Guirao has not proven that the respondent engaged in retaliatory behaviour and has not made out her claim for $93.50.

[61] Leave to appeal is refused.
[62] The appeal is dismissed.

[1] Application for leave to appeal or appeal - Attached Notice of Facts in Appeal, 21.

[4] The original application also listed a claim for $1120 for the bond. However, it was clarified at the hearing that the claim is just for the call-out fee; T 1-4 lines 28 to 39 and T 1-16 lines 24 to 25.

[6] Pickering v McArthur [2005] QCA 294 [3].

[7] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41, 46.

[8] Cachia v Grech [2009] NSWCA 232 [13].

[9] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41, 46.

[10] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 388-9; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577-8, 580.

[12] Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 [9].

[13] Application for leave to appeal or appeal - Attached Notice of Facts in Appeal, 1.

Civil and Administrative Tribunal Act 2009

Tenancies and Rooming Accommodation Act 2008

Tenancies and Rooming Accommodation Regulation 2009

Du Preez v Linda's Homes Pty Ltd [2010] QCATA 2, cited

Lane & Mares v Niedzel Pty Ltd t/as Across Country Real Estate and Livestock [2023] QCATA 115, cited

Pickering v McArthur [2005] QCA 294, cited

At a glance

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