Yu v Milham & Anor [2026] QCATA 10

[3] The lessor lodged an application for leave to appeal or appeal on 23 December 2022. The decision is appealed on the following grounds:

In making his decision, I believe the Magistrate did not give consideration to all material presented for the hearing. An affidavit to accompany the application was lodged at the Cairns Courthouse on 25.11.22. the application stated that an Affidavit would be lodged. The affidavit provided comprehensive evidence that the Respondents failed in their obligation to return the property in the same condition as recorded on their Entry Condition Report, Section 37 of the General Tenancy Agreement. The Magistrate asked the court clerk to present him with my copy of the exit report which confirmed to me he didnt [sic] have my Affidavit to reference. Additionaly, [sic] there may have been material submitted in reply to my application that was not provided to me. The Magistrate referred to emails from the Respondent. Lastly, I was not made aware that the Respondents were approved to attend the hearing by phone.

In summary, I believe there was an error of law as all evidence was not presented to all parties or considered during the hearing.

[4] The appellant seeks the same orders as sought in the original application - essentially that the decision be remade in his favour.

[5] An appeal is not a rehearing and is not an opportunity to tender further evidence in an attempt to further argue the original dispute. It is an application concerning a legal or factual error made by a decision-maker.[1]

[6] A party to a proceeding may appeal to the Appeal Tribunal against a decision of the Tribunal in the proceeding.[2] Leave is required if the appeal involves a question of fact or mixed law and fact.[3] 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?[4]

(b) Is there a reasonable prospect that the applicant will obtain substantive relief?[5]

(c) Is leave necessary to correct a substantial injustice to the applicant caused by some error?[6]

(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?[7]

[7] 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.[8] 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.[9] An appeal on a question of fact or mixed law and fact must be conducted by way of rehearing.[10] 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.[11]

[8] Both parties filed submissions which seek to further argue the original dispute, rather than addressing any error by the magistrate.

[9] On 1 March 2023 the lessor's agent submitted an affidavit restating the information in the appeal application.

[10] On 17 March 2023 the tenants submitted in their response to the appeal application, relevantly, that the affidavit of 22 November 2022 was 'falsified' as Lainie Rossi, the deponent, was an employee of the real estate organisation and a colleague of the lessor's agent. The magistrate allowed this evidence in any case. I note on this point the Tribunal is not bound by the rules of evidence.[12] The magistrate chose to rely upon the affidavit in circumstances where neither party was legally represented. The tenants submitted the decision made was fair to both parties.

[11] None of the evidence on the appeal file goes towards proving or disproving the grounds alleged.

[12] Essentially the grounds are that the magistrate did not consider all the material on file; there 'may have been' response material not provided to the appellant, and the appellant was not notified the tenants were to attend by telephone.

[13] The first two grounds are assertions of errors of fact. Leave is required to appeal.

[14] The third of these is not an appeal ground. Attendance by telephone had no effect on the decision made.

[15] Regarding the second ground, the appellant does not particularise what material was not provided.

[16] Based on the transcript of the hearing, it seems the material referred to is an email from Cairns FNQ Cleaning Services to the tenants detailing the items in an invoice (which had already been provided to the Tribunal) for the cost of a carpet clean. The email detailing the exact cost of the carpet clean was sent to the Court during the hearing. The invoice showed $140 of the total cost had been apportioned to the carpet. Upon the Court's reception of the email, as the agent had not seen the evidence, the agent was provided a right of reply. The agent posited the carpets required a deeper clean due to oils and soiling from pets and heavy deodorisation. The agent had previously submitted a quote to this effect. The magistrate awarded the lessor the difference between the quotes. There was no failure to provide procedural fairness. This ground of appeal fails.

[18] Having considered the evidence on file, the magistrate's assertions that the appellant failed to prove his case in the first instance are correct, even with reference to the affidavit filed 25 November 2022. There is no evidence the magistrate failed to consider the contents of this affidavit as regards each of the claims below.

[19] The magistrate had copies of the entry and exit reports. The copy of the exit report on file was signed by the tenant, but the agent handed up an agent-signed copy at the hearing. The magistrate had access, functionally, to a complete report. The claim was for the cost of cleaning six carpets; only three of those were noted to have animal fur; the magistrate correspondingly allowed half the claim.

[20] See paragraph [13] of these reasons. It was open to the magistrate to award the difference between the quotes provided.

[21] The magistrate asked the agent whether she could provide itemised quotes multiple times to particularise the claim for cleaning of items in the exit report. The costs of these items are not individually listed. The magistrate had access to and considered the affidavit and this document as one of its annexures. The problem was with the document itself. The magistrate did not allow the claim because the list was not itemised with each amount. This was made clear at the hearing.[13]

[22] The agent did not provide the necessary evidence of water efficiency by way of a water efficiency certificate, and conceded this at the hearing.

[23] As at paragraph [21] the repair cost was not sufficiently itemised and therefore not allowed.

Compensation for damaged carpet and broken tile

[24] The only evidence provided for these costs was an invoice from the agent's company. These was provided in the 25 November 2022 affidavit, three days before the hearing, and the tenant was therefore denied the opportunity to obtain his own quotes. Concerning the carpet, the agent conceded she did not have an invoice or a receipt for this claim. For these reasons these claims not allowed. This was not an error; the judgment ensured procedural fairness and was made on the basis of the evidence provided.

[25] The value of this claim, $2,000, was supported by an email from BMT Tax Depreciation. The affidavit was filed on 25 November 2022, three days before the hearing. The magistrate pointed out the tenant was not afforded an opportunity to get a quote in response. It was also not attached to a sworn statement meaning the tenants could not cross-examine its author. To allow it would constitute a breach of procedural fairness. On this basis the claim was disallowed. As above this is not an error but the provision of fairness.

[26] The magistrate did not err in his determinations of the individual claims. This ground of appeal fails.

[27] Accordingly, the application for leave to appeal or appeal is dismissed.

[1] Ramsay v Earl [2025] QCATA 29 [19].

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

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

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

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

[7] 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.

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