On Q Properties Pty Ltd t/as Define Property Agents v Keast & Anor [2026] QCATA 52

Allen v Queensland Building and Construction Commission [2024] QCA 24; (2024) 18 QR 79

Cachia v Grech [2009] NSWCA 232

Ericson v Queensland Building Services Authority [2013] QCA 391

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636

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

[1] This is an appeal against a decision made on 4 September 2024 in a minor civil residential tenancy dispute.

[2] Ms Kirsten Keast and Mr Phillip Done ('respondents' or 'tenants') commenced their tenancy at the property located at 132 University Way, Sippy Downs ('property') on 28 July 2023. On Q Properties Pty Ltd t/as Define Property Agents ('the appellant') was the real estate agent of the property. At the commencement of their tenancy, the respondents paid the rental bond amount in the sum of $3,080.00 to the appellant, who lodged the bond with the Residential Tenancies Authority ('RTA').

[3] The proceeding below was an application by Ms Keast and Mr Done for repayment of the bond and compensation.

[4] Ms Keast and Mr Done submitted an agreement had been in place between them and the appellant. In a phone call in late January 2024, the appellant discussed the possibility of the respondents voluntarily ending their tenancy early to allow the property owner to sell the property to potential owner-occupiers, who would want to occupy it immediately on purchase ('early termination agreement'). The lease was set to expire on 27 July 2024. On 29 January 2024 the respondents emailed the appellant requesting clarification of that discussion.

[5] On 4 February 2024 the appellant responded, stating they sought the respondents' views on ending the tenancy early and arranging for inspection of the property.

[6] On 5 February 2024 the respondents replied, outlining their concerns about the impacts of early termination. They requested as compensation for any early termination:

(a) That a suitable replacement rental property would be found for them; and

(b) Their removalist, bond clean, garden service, and mail redirection costs would be covered.

[7] On the same day the appellant responded, stating the property owner agreed to the terms as outlined in that email.

[8] On 5 March 2024 the appellant emailed the respondents, stating the buyers of the property in conjunction with the sellers wanted to know the respondents' position on leaving early. The email said:

[The buyers] are willing to pay for removalist, cleaning, mail redirection and gardens, if there is a possibility for you guys to move out soon then that would be a great savings for you guys...

It's obviously up to you guys as you are protected under your lease to stay right up until the last day...

Please let me know your position at your earliest convenience, we can then inform the buyers to either sign a lease and rent elsewhere until the end of your lease in July or move into 132 University Way.

[9] The respondents replied on 7 March, stating they were open to finishing the lease early and had been searching for a property.

[10] The question of the early termination agreement was not strictly addressed at this point.

[11] The property was sold on 20 March, while the respondents still lived there. The new owner arranged for alternative accommodation in the interim between their purchase and the respondents vacating the property.

[12] On 9 April the respondents advised the appellant they had located a new property and sought advice as to whether the agreement was in place and they would not be penalised for breaking the lease.

[13] The appellant replied stating at the last inspection the tenants had been advised the previous owner had requested the early termination in order to provide vacant possession to a new owner, and since the property had not been sold with vacant possession, the new owner had arranged alternative rental accommodation. Any early termination would constitute a breaking of the lease, unless a new agreement was made with the new owner. The appellant then sought potential termination dates from the respondents in order to negotiate with the new owner.

[14] On 10 April and 5 May the respondents advised they could not provide dates and clarified they were requesting they not be penalised by the break-lease terms.

[15] On 11 May the respondents submitted a Form 13 - Notice of Intention to Leave and advised they would vacate the property on 17 June 2024.

[16] On 16 May the appellant replied acknowledging the notice and stating the new owners were not prepared to agree to early termination.

[17] On 21 May the respondents again confirmed their intention to leave on 17 June, and on 17 June vacated the property.

[18] On the same date, the appellant lodged a claim with the RTA for the full amount of the bond.

[19] On 21 July 2024 the tenants lodged the claim below in the Tribunal for the return of the bond and compensation pursuant to the early termination agreement. They submitted they left the property in good condition and accordingly were entitled to a refund of the full amount of the bond, $3,080.00.

[20] The matter came before a Magistrate sitting as a Tribunal Member in the Maroochydore Magistrates Court on 4 September 2024. The learned Magistrate ordered that the RTA pay the bond to the tenants, and that the appellant pay to the tenants the sum of $4,000.00 within 28 days of the decision.

[21] The appellant filed an application for leave to appeal or appeal in the Tribunal on 2 October 2024. It asserts the learned Magistrate's decision constitutes an error of fact and/or law, namely that:

1. The Offer was never formally accepted by Keast and Done because their acceptance was subject to other matters occurring i.e them finding a suitable property within the relevant time-frame; and
2. The offer was subsequently withdrawn by On Q Properties Pty Ltd.

[22] The appellant submits that in making the decision the learned magistrate erred in assuming the existence and legal force of the early termination agreement. It further submits that the learned Magistrate erred in awarding the respondents monetary compensation based on the early termination agreement.

[23] The appellant seeks orders that the Appeal Tribunal:

(a) grant leave to appeal;

(b) confirm that the appellant is not required to make payment to the respondents; and

(c) order that the RTA pay the bond to Tatiane Moraes Souza, the new owner.

[24] A party to a proceeding may appeal to the Appeal Tribunal against a decision of the Tribunal in the proceeding.[1] Leave is required if the appeal involves a question of fact or mixed law and fact.[2] The 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]

[25] If leave to appeal is granted, in deciding the appeal 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 to the Tribunal for reconsideration.[7] The Appeal Tribunal may set aside the decision and substitute its own decision only if this results in the disposition of the appeal entirely in the appellant's favour.[8] An appeal on a question of fact or mixed law and fact must be conducted by way of rehearing.[9] 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 to the tribunal for reconsideration.[10]

[26] Whether the circumstances as outlined above led to the creation of a contract is a question of fact. As will be detailed below this proceeding involves a failure to afford procedural fairness, an error of law, which calls the entirety of the proceeding into question. The appeal is therefore based on a question of mixed law and fact.[11] Leave is required to appeal.

[27] At the hearing the learned magistrate did not allow substantive submissions from either party. A brief review of the transcript shows the parties' submissions were confined to confirming or denying statements, some quite prolix, made by the learned magistrate, or answering simple factual questions about, for example, who was currently living in the property,[12] or the appropriate amount to be awarded, an aspect of the decision which will be dealt with later in these reasons. At no point did the learned magistrate ask either party to explain their position.

[28] At the commencement of the hearing the learned magistrate said:

...I have had a good read through the paperwork here. I'll start with the respondent. I should probably warn you that's not a good sign.[13]

[29] Shortly after that, when the representative for the appellant was sworn in, the learned magistrate said:

Okay. So in reading your response, what seems to be repeated throughout the response is this concept that you've acted, fairly, reasonably, professionally in your dealings with these people. What if I said I couldn't disagree more?[14]

[30] The learned magistrate found, on the basis of the 5 February email, that an agreement was in place between the original owner and the tenants, and said to the representative for the appellant:

HIS HONOUR: ... Now, I think reading your response, you say, well, that - because of the way it finished, there was never an agreement made on the basis of [the 5 March email]. Correct?

MS DAVIES: Yes.

HIS HONOUR: ... This is a response to their email, "Thank you for taking the time to email your position. I have discussed this with the owner who is agreeable to the items costs you would want covered." Agreement. There's the agreement. It's been ignored in your response. You're nodding. That's why I'm unhappy. To continually write in that response you've done nothing wrong, left these people in the lurch, because all they've ever done is try and do what you wanted them to do. It's a disgrace.[15]

[31] The learned magistrate did not accept submissions on the possible lapse of the agreement:

HIS HONOUR: ... Now, I understand that I've only got some of the emails here, so I'll be circumspect in expressing concern about what's going on or what seems to have gone on, but I think it's patently false to say there is no agreement, based on that email from our principal.

And, in fact - in fact - he asked them again to consider moving out early. Then when they eventually move out, based on the instructions of the new landlord, you say, "We've got to continue to pay rent until the end of the tenancy." You say, "Our client" - this is by effect - "has no obligation to mitigate their loss, has no intention to finding another tenant for two months to try and take over that tenancy, can use the property to store items at the property and that doesn't matter, you have to keep paying rent." What basis is there for that?

MS DAVIES: Sorry, your Honour, I - the intent was that it would be break‑lease terms or mutual ‑ ‑ ‑

HIS HONOUR: But there was already an agreement made back in February. ...[16]

[32] After speaking at length about the responsibilities of real estate agents, the learned magistrate said:

HIS HONOUR: ... I was just stunned when I read the reply and there was complete inability to accept any component of their claim, which is what it says, isn't it, that you've done nothing wrong and there should be no liability?

MS DAVIES: Yes, it is, yes.

HIS HONOUR: What about that agreement in February that you accepted was made in your own email? Do you have an explanation? How can you say there was no agreement? You looked at the email. I can read it out again, if you want?

MS DAVIES: Yes, your Honour, I've looked at the email.

HIS HONOUR: There was an agreement, wasn't there? It was the form. All right.

MS DAVIES: Yes, it'd be an agreement, yes.

HIS HONOUR: Well, I can read it out again. "Thank you for taking the time to email me and outline your position. I have discussed this with the owner who is agreeable to the items costs you would want covered in order to vacate the tenancy early." It sounds like there's an agreement.

MS DAVIES: Yes, it is.

HIS HONOUR: But you didn't refer to that in your reply, did you?

MS DAVIES: No, I didn't.[17]

[33] Many of the questions asked, in this excerpt and generally during the hearing, are leading questions.

[34] It is obvious from the above the learned magistrate had formed a view prior to hearing from the parties,[18] and the making of the decision without taking substantive submissions from either party indicates prejudgment.

[35] It is trite to say the learned magistrate's conduct in this proceeding breached the hearing rule, which mandates that before a decision is made that may affect a party's rights, a court or tribunal must give that party a reasonable opportunity to be heard.[19] This indeed is the very purpose of a hearing. Nothing in this case displaces that rule.

[36] The award of $4,000 was essentially an arbitrary figure arrived at by the learned magistrate. The tenants sought the bond plus $6,192.70 compensation (including filing costs) in the proceeding below. The tenants did not provide exact amounts for any of the costs claimed, but provided various general figures. The learned magistrate noted a Court of Appeal case, though he did not cite it, in which a claim had been allowed for inconvenience, and then stated:

So if you were getting someone to move your furniture that could have been a couple of thousand dollars worth of expense to the then owner. It could've been a bond clean. I put $500 but you said you got a quote for $1,000. So that owner basically was going to put their hand in their pocket under that arrangement to probably around four or five thousand dollars, when you think about it. So what I was proposing to do was to make an order in relation to that aspect of your claim of $4,000, having regard to my assessment of the inconvenience caused but something less than substantial loss of enjoyment - quiet enjoyment, and also having regard to that agreement that was made. But I make an order that the bond also be paid out to you as well.[20]

[37] The learned magistrate denied the parties procedural fairness by his refusal to allow them to make submissions in the proceeding below. This is a substantial error of law, but it does not merely raise a question of law, as it involves the factual determination of the contract's existence at the date the tenants submitted their notice of intention to leave. As this is an appeal on a question of mixed fact and law the appeal will be conducted by way of rehearing.

[38] In submissions filed 31 October 2024, the appellant submitted the terms of the early termination agreement were not met by the tenants. They submitted the relevant timeline was:

(a) On 29 January 2024 the tenants emailed the appellant confirming the details of a phone conversation. That email stated they understood the appellant were having trouble selling the property while they remained in it and sought clarification on the agent's early termination proposal;

(b) On the same day the appellant replied advising they wanted to discuss early termination of the lease;

(c) On 4 February 2024 the tenants replied stating they were open to ending the lease early subject to the conditions stated earlier in these reasons;

(d) On 5 February 2024 the original owner of the property replied to that email stating they agreed with the conditions.

[39] The relevant terms of that contract were that the tenants would vacate the property to enable its sale with vacant possession; their vacating was subject to a suitable property being found and compensation.

[40] The terms of that contract were not met because the tenants did not locate a suitable replacement property in time and therefore did not vacate the property before its sale to enable vacant possession.

[41] Compensation was therefore not payable. This was confirmed by the email of 9 April 2024.

[42] On 13 May 2024 the tenants served a Notice of Intention to leave, six weeks before the end of their lease. They therefore broke lease without grounds and the bond became awardable to the owner. The rent owing exceeds the bond amount, meaning a further $1,210 is owed to the property owner.

[43] The respondents' submissions, filed 20 November 2024, relevantly assert there was no agreed timeframe for them to vacate the property. They were to vacate the premises 'as soon as possible'. At no point during their negotiations was a specific timeframe or sunset clause communicated to them, and there was no indication the agreement was contingent on any timeframe.

[44] In reply, the appellant submitted while there was no agreed timeframe to vacate, it was clear from the correspondence provided that the owner being able to sell the property with vacant possession was an essential term of the agreement.

[45] The emails of 29 January 2024 and 5 February 2024 show the parties understood sale with vacant possession to be an essential precondition to allowing the tenants' early termination. The tenants were aware the property had been sold while they still resided there, prior to their service of the Notice of Intention to Leave.

[46] At the hearing the representatives for the appellant stated the tenants were aware the property had been sold on 20 March 2024. The buyers also were aware of the tenants' continuing to reside in the property, and that their lease expired on 27 July.

[47] The appellant stated the tenants were told on 9 April that if they were to leave before the end of the tenancy on 27 July that would constitute a breaking of the lease, but that the appellant would seek a solution from the buyer.

[48] On 11 May the tenants gave notice of their intention to leave; the appellant notified the new owners of this intention. On 16 May, the appellant responded to the tenants, stating the owners were not in a position to accept their leaving. On 21 May the tenants presented them with a Form 13 - Notice of Intention to Leave, and left on 17 June.

[49] The learned magistrate in the proceeding below did not take into account the fact that the early termination agreement had been finalised, and that no specific sum of money was discussed. The early termination agreement had been suggested purely to facilitate a sale with vacant possession - once that became impossible, as the property was bought without it, the new owners did not want to allow the tenants to leave early.

[50] The tenants stated they were unaware of the sale taking place until the issue of the notice of entry on 20 March 2024 and the subsequent attendance of the buyer at the property. Their understanding was that the early termination agreement had not changed and that the new owner wanted them out as soon as possible, with the latest time to leave being the end of the lease, 27 July.

[51] The 5 March email stated the buyers in conjunction with the sellers requested the tenants vacate early. The tenants' understanding of that email was that the buyers acquiesced to the early termination agreement.

[52] When asked whether there had been a clear communication stating the early termination agreement had ended, the appellant stated the parties had agreed (verbally at a property inspection, with the conversation later referenced in the 9 April email) the tenants could stay until the end of their lease and the buyers had arranged alternative accommodation. The 5 March email was an attempt to establish, for the buyers' benefit, whether they needed to arrange alternative accommodation or could move in upon purchase.

[53] The appellant stated that sale of the property with vacant possession was an essential term, and after sale, they did not enter into negotiations for the new owner because the new owner was not in a position to negotiate for the tenants' early release.

[54] They stated in serving the notice of intention to leave the tenants understood they were acting in accordance with the early termination agreement.

[55] Both parties submitted the figure for compensation arrived at by the learned magistrate was never a part of the claim, and was something the learned magistrate calculated himself.

[56] The essential question is whether, on 4 and 5 February, the parties entered into an agreement, and on what basis.

[57] The tenants ought to have been aware vacant possession was an essential term of the early termination agreement.

[58] It was submitted in documentation and at the hearing that, from the tenants' perspective, they had been asked to move out as soon as possible, had undertaken property searches and laboured to find a suitable residence as soon as possible, the new buyers would prefer them to leave as soon as possible, and the subsequent refusal to honour the early termination agreement was unfair.

[59] Notice was clearly given, however, that the early termination agreement was no longer in place.

[60] The 29 January 2024 email from the tenants states:

From what we understand you are having trouble selling the property because it is occupied by tenants and the main demographic interested are owner-occupiers.

[61] The 4 February 2024 email from the tenants states:

Thank you for your email & clarifying that potential buyers would like us to finish our lease early so that they may occupy the residence.

[62] It was apparent the tenants understood the agreement was subject to vacant possession.

[63] The language of the 5 March email from the appellant also reflects this, though only implicitly:

[The buyers] are willing to pay for removalist, cleaning, mail redirection and gardens, if there is a possibility for you guys to move out soon then that would be a great savings for you guys...

[64] After the property was sold the tenants emailed the appellant on 9 April asking whether the agreement remained in place. The reply by the appellant, sent on the same date, stated:

During our last visit to the property for the pre-settlement inspection, I advised Phil that the previous owner had requested to terminate your lease to provide vacant possession to the buyers. Since the property couldn't be sold with vacant possession, the buyers arranged alternative rental accommodation. If you're considering early termination of your lease, it would fall under break lease terms unless mutually agreed upon with the new owners.

[65] The tenants ought reasonably to have been aware the early termination agreement no longer applied. Their actions after that point were independent of any prior contract. No further agreement was made due to the difficulty faced by the tenants of providing specific dates and the owner's inability to negotiate.

[66] I find there was no valid agreement in place at the time the tenants issued the Notice of Intention to Leave, and that their early termination of the lease was a breaking of the lease; and that the learned magistrate below erred in finding otherwise.

[67] Accordingly, having regard to the error of law and the factual identified, leave to appeal is granted. The appeal is allowed and in the circumstances the orders for bond repayment and compensation made by the learned magistrate below must be set aside and substituted with an order that the application for minor civil disputes is dismissed.

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

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

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

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

[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.

[8] Ericson v Queensland Building Services Authority [2013] QCA 391.

[11] Allen v Queensland Building and Construction Commission [2024] QCA 24; (2024) 18 QR 79 [117].

[18] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 564.

[19] Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 [66].