Lamb v Property Lane Realty [2026] QCATA 61

[1] The current Applicant is the former tenant of a rental property situated at 9 Red Jacket Court, Palmwoods ('the premises'), and was the Respondent in Minor Civil Dispute matter Q865-26, which is now subject to her appeal.

[2] By way of background, on 22 December 2025 a termination order had been made in respect of the fixed term lease of the premises to the Applicant, following the issuance of a notice to leave, due to the ending of the fixed term period. On 22 December 2025 a warrant of possession was also issued.

[3] Notwithstanding the making of that termination order, the Applicant did not remove the preponderance of her goods and other possessions from the premises, such that the Respondent landlord was not able to obtain vacant possession.

[4] On 15 January 2026 the Respondent applied again to the Tribunal, this time for an order under section 363 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) authorising the Respondent to sell (or otherwise dispose of) the Applicant's goods and possessions left at the premises.

[5] On 30 January 2026 the Applicant commenced a counter-application, thereby seeking dismissal of the Respondent's application under section 363; as well as her seeking alternate orders pursuant to section 365(3)(b), thus requiring the Respondent to conduct (and pay for) a mould remediation, before then affording the Applicant a further period of 10 days within which to remove her goods and possessions from the premises.

[6] MCD Q865-26 was heard and determined by his Honour Magistrate Madsen sitting as a Tribunal Member at Nambour, on 2 February 2026.

[7] After hearing arguments and considering filed materials, his Honour ordered:

I order that the Respondent shall have until 9am on 13 February 2026 to commence removal of her personal property from 9 Red jacket Court Palmwoods

Should the Respondent not have completed the removal of her personal property by 9am on 16 February 2026 then the Applicant lessor can sell the personal property by public auction to be conducted from 9 Red jacket Court Palmwoods.

The proceeds of sale from the public auction can be applied by the lessor towards the cost of sale, including Real Estate Management costs, Auctioneer costs, cleaning cost and thereafter maybe be paid to the Tenant.

In the event that items are unable to be sold at public auction then in the sole and unfettered discretion of the lessor these can either be donated to an organisation like Lifeline or St. Vincent de Paul, or if they cannot be donated, they can be disposed of as refuse.

[8] On 13 February 2026 the Applicant commenced an appeal against the original decision, as well as for her applying for a stay pending the hearing of the appeal.

[9] On 16 February 2026 the Appeal Tribunal issued directions for the filing of written submissions on the Application to stay the original decision.

[10] On 9 March 2026 the Appeal Tribunal refused to stay the operation of the original decision ("the stay refusal").

[11] On 10 March 2026 the Applicant requested written reasons for the stay refusal. These now are those reasons.

[12] The general rule is there should be no stay. As was observed by Keane JA (as his Honour then was) in Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd:

... it will not be appropriate to grant a stay unless a sufficient basis is shown to outweigh the considerations that judgments of the Trial Division should not be treated as merely provisional, and that a successful party in litigation is entitled to the fruits of its judgment. Generally speaking, courts should not be disposed to delay the enforcement of court orders.[1]

[13] An onus rests upon an applicant for a stay to persuade the Court that it is appropriate to grant one. In Clayton v Ebborn it was observed:

The applicable principles are well established. It is incumbent on the applicant to establish that this is an appropriate case for a stay. The factors which normally weigh upon the exercise of the discretion are:

(a) whether there is an arguable case on the appeal, carrying out a preliminary assessment of the applicants' prospects of success;

(b) whether a refusal of the stay would render the appeal right nugatory;

(c) any prejudice to the applicants and competing prejudice to the respondent;

(d) the entitlement of the successful party in litigation to the fruits of its judgment; and

(e) that orders might ultimately be made, and whether a stay is required to ensure that those orders are fully effective.[2]

[14] As grounds for her appeal the Applicant submitted that the orders made by Magistrate Madsen on 2 February 2026 were 'unreasonable and incapable of compliance' and that the mould contamination 'gave rise to occupational health and safety constraints preventing the engagement of removalists cleaners and storage providers'; and that his Honour had failed to properly consider the evidence of mould contamination, such that his Honour had 'erred in finding that compliance within the timeframe ordered was reasonably possible'.

[15] As regards her now seeking a stay of the original decision pending the determination of the appeal, the Applicant submits:

(a) the appeal raises arguable errors of law and fact concerning the Tribunal's finding that compliance within the ordered timeframe was reasonably possible;

(b) the evidence demonstrated significant mould and mycotoxin contamination throughout the premises, requiring professional assessment before any remediation or disposal could occur;

(c) the contamination gave rise to occupational health and safety constraints preventing the engagement of removalists, cleaners and storage providers, making compliance within the timeframe ordered not reasonably possible.

(d) If a stay is not granted, irreversible prejudice will be caused to the Applicant and the appeal will be rendered nugatory, such that the balance of convenience should be assessed as now favouring the granting of a stay.

[16] In opposing the application for a stay of the original decision, the Respondent submits:

(a) The Tribunal as constituted by the learned Magistrate had determined that the ordered timeframe for the removal of goods was reasonably possible, and the ordered timeframe aligned with the period that had been requested by the Applicant.

(b) The Applicant had notice of the consequences of any further non-compliance.

(c) There has already been substantial prejudice to the landlord, including loss of rental income since 23 December 2025 and an ongoing inability to either inhabit, re-let, or market the sale of the premises, such that the balance of convenience weighs in favour of the Respondent.

[17] A review of the audio recording of the proceedings on 2 February 2026 in Minor Civil Dispute Q865-26 reveals that the Applicant's counterclaim and the supporting evidence for the counterclaim was received and had been considered by his Honour.

[18] Review of the audio recording also reveals that his Honour determined that the orders sought by the Applicant pursuant to section 365(3)(b) are discretionary, and in all of the circumstances - including the fact that the lease had already been terminated by means of a prior order of the Tribunal on 22 December 2025, coupled with the issuance of a warrant of possession in favour of the landlord - his Honour was not now minded to exercise the discretion in section 365(3)(b) in the terms sought by the Applicant. His Honour was always entitled to proceed on that basis.

[19] His Honour also found that there were legitimate grounds for the Respondent having commenced an application for orders under section 363. After discussions with the Applicant about the time required for her to organise a removalist to retrieve the residue of her goods and possessions left at the premises, and his Honour being duly advised by the Applicant that this could be achieved by her within two weeks; together with his Honour having been advised by the Respondent that the goods had already by that stage been stored on the premises for more than one month;[3] his Honour determined that the Applicant should be allowed until 13 February 2026 to organise a removalist, and then until 9am on 16 February 2026 to effectuate the removal of her possessions, before the Respondent would be at liberty to sell any residue of the Applicant's property left behind by way of a public auction conducted from the premises.

[20] The Applicant asserts that the learned Magistrate failed to properly consider the evidence of mould contamination that was before him as part of her counterclaim, such that his Honour erred in finding that compliance within the timeframe ordered was reasonably possible. Yet, it becomes clear that his Honour had considered the mould contamination report, and the timeframes ordered by his Honour on 2 February 2026 cannot now be categorised as "unreasonable" given that the timeframe is one that the Applicant had herself nominated.

[21] The Applicant contends, in broadbrush terms, that there are 'arguable errors of fact and law attending the original decision'. As part of considering whether to grant a stay the Appeal Tribunal is required to conduct a provisional assessment of the Applicant's appeal prospects. In the process of having done that by way of its review of the audio recording of the proceedings on 2 February 2026, no arguable errors of either fact or law can be discerned by the Appeal Tribunal.

[22] At the heart of it, the Applicant seeks to argue that it is an effective impossibility for her to comply with his Honour's orders. However, that argument does not withstand proper scrutiny given that the Applicant had herself nominated the ordered two-week period, and had put no evidence before his Honour to discharge the onus to show that work health and safety concerns precluded any possibility whatsoever for the removal of any of her goods or other property left at the premises.

[23] Notwithstanding the prejudice to the Applicant should a stay not be granted, any prejudice to the Applicant is assessed to be outweighed by:

• - the competing prejudice to the Respondent, in the event that a stay were granted;
• - the Appeal Tribunal's preliminary assessment of the Applicant's appeal prospects; and
• - the ordinary consideration that final orders of the Tribunal are not to be treated as if these are merely provisional.

[24] The Application to stay the decision under appeal is refused.

[1] [2008] QCA 322; [2008] 2 Qd R 453, [12].

[2] [2025] QCA 199, [20].

[3] Residential Tenancies and Rooming Accommodation Regulation 2009 (Qld) s 28(b).