Zhai & Anor v Drummond [2026] QCATA 60

[1] The Applicants have filed an Application for leave to appeal or appeal against the decision of an Adjudicator made in a residential tenancy matter. The residential tenancy related to a unit at 3/25 Herston Road at Kelvin Grove ("the tenancy").

[2] On 30 January 2025, Adjudicator Vanenn refused the Applicants' application for termination of the tenancy on grounds of excessive hardship, ordering that the Residential Tenancies Authority apportion the $2,720 rental bond on the basis of $2,596.25 being paid to the Applicants, and $123.75 being paid to the Respondent/Lessor ("the original decision").

[3] On 31 January 2025 the Applicants lodged an Application for leave to appeal or appeal against the original decision, indicating that the appeal related only to the refusal to allow the termination of the tenancy on excessive hardship grounds, contending that the learned Adjudicator had misinterpreted sections 310 and 383 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ("the RTRA Act"), as well as their evidence of financial hardship.

[4] In addition, the Appeal Applicants seek orders that the Appeal Tribunal now waive the $221 advertising fee and $748 break lease/reletting fee (total $969), as had previously been paid by them to the Lessor's agent.

[5] The general rule is that 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 consideration 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]

[6] An onus rests upon an applicant for a stay to persuade the Court that it is appropriate to depart from the general position, and instead grant a stay.

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

[8] In the Application for leave to appeal or appeal filed on 31 January 2025 the Applicants contend that the learned Adjudicator had misinterpreted both sections 310(1) and 383(1) of the RTRA Act, as well as their evidence of financial hardship.

[9] Sections 310(1) and 383(1) of the RTRA Act provide that a tenant "may" apply to a Tribunal for a termination order because the tenant would suffer excessive hardship if the agreement was not terminated. Section 383(2) of the RTRA Act provides that the Tribunal "may make the order if it is satisfied the applicant has established the ground of the application".

[10] Use of the word "may" in section 383(2) makes clear that the making of an order terminating a fixed term tenancy on grounds of excessive hardship is entirely discretionary. The Tribunal may do that, or it may not, depending on its assessment of the evidence.

[11] The Appeal Tribunal's review of the transcript of the original proceedings makes clear that the learned Adjudicator did consider all of the evidence of financial hardship that had been adduced before him, had done that in a sufficient and reasonable manner, and ultimately was not satisfied that the Applicants had established grounds of excessive hardship. Although reasonable minds may differ, the learned Adjudicator was always entitled to come to that view.

[12] In Chai Bricks 2 Pty Ltd v Averill & Anor, Member Dr J R Forbes observed:

Applications for leave to appeal are not occasions for a retrial on the merits, but rather are reviews for reasonably arguable errors of law. No such error is apparent here. No error of law occurs simply because the judge prefers one version of evidence to another. Reasonable minds may differ, but that is not a proper ground of appeal. It is not the function of a tribunal of appeal to substitute its own view for reasonable findings of a primary judge, even if disposed to do so.[3]

[13] The Applicants also seek orders from the Appeal Tribunal that they not be required to pay the combined break lease/reletting fee of $969, as previously paid by them, arguing that the Respondent did not provide adequate evidence in support of these. This appeal ground has no substance and is an attempt to re-litigate matters. The adequacy of the evidence in support of these sums was always a matter for the learned Adjudicator and no error is now apparent on the Appeal Tribunal's review of the evidence received and considered by the learned Adjudicator, or in the transcript of the proceedings at first instance.

[14] In this case there is no reasonably arguable case of legal error in the primary decision. The Applicants do not have any reasonable prospect of obtaining substantive relief if leave to appeal were now to be granted. No substantial injustice caused by some error, or any question of general importance now warranting further argument and a further decision by the Appeal Tribunal for the public benefit can be discerned by the Appeal Tribunal.

[15] The Application for leave to appeal is refused.

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

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

[3] [2025] QCATA 79, [10].