The importance of evidence in QCAT

In this article, we consider a recent decision of the Queensland Civil and Administrative Tribunal, in its appellate jurisdiction, which provides property managers with some useful information regarding the interpretation of section 284 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the RTRA Act) and demonstrates the importance of obtaining evidence to present at a hearing in the Tribunal. 

Stone Real Estate v Miller [2024] QCATA 106

The tenants of the subject property (the respondents) had held a series of tenancy agreements for a period of five years.  The tenants entered into a new fixed term tenancy agreement for the property, which was due to commence on 30 April 2023 and expire on 27 April 2024. 

On 18 March 2023, the property manager (the applicant) issued a notice to leave (Form 12) to the tenants on the ground of “unliveability”. The tenants vacated the property in accordance with the notice to leave and moved into a more expensive property in a neighbouring suburb.

The property manager filed an application in the Tribunal regarding the rental bond and money allegedly owed by the tenants. The tenants filed a counterclaim seeking compensation including the increase in rent as well as removal expenses.

The claim and counterclaim were initially heard on 4 July 2023. The Tribunal held that the notice to leave issued by the property manager on the ground of “unliveability” was invalid and allowed the tenants’ counterclaim.

The property manager sought to appeal the Tribunal’s decision, seeking an order that the decision be “overturned and that the original claim be reassessed”. [1]

While the Appeal Tribunal did not specifically refer to section 284 of the RTRA Act, it stated that the ultimate question is whether the property was “truly unfit for habitation in March 2023” [2] when the notice to leave was issued.

Section 284 of the RTRA Act provides that a lessor may give a notice to leave to a tenant because the property has been destroyed, or made completely or partly unfit to live in, other than because of a breach of the agreement.

The Appeal Tribunal referred to the evidence in support of the notice to leave that was relied upon by the property manager at the initial hearing in the Tribunal. An undated report by DW Home Maintenance of Tanah Merah (DW), a handyman, states:

“[DW] recommends that a licensed builder be engaged as soon as possible to assess the extent of the damage. It is highly plausible that the damage is not limited to the exposed areas and may extend into the external wall located to the left of the garage and, the roofing structure, and the living room exterior wall structure.

“Immediate Action: DW asked the tenants to remove their vehicles from the garage and immediately desist from using the garage door. Once closed, the garage door motor was unplugged to prevent use. In addition, the tenants were advised that should they use the door forthwith, any damage or injury caused by the door failing or other structural damage may render liability to themselves. [W]e advised the property manager by phone and impressed the concerns listed above.” [3]

Gold Bullet Construction (Gold Bullet), a licensed builder, was subsequently engaged and reported that:

“[Our] inspection revealed extensive damage to the timber column located on the left hand side of the garage door. This column supports the lintel above the garage door, which in turn bears the weight of the roof trusses.  The termite infestation has significantly compromised the structural integrity of the column, creating a high risk of collapse.  If this column were to collapse, it would not only jeopardise the garage area but also pose a threat to the entire house and its occupants. Considering the potential danger to the safety of anyone residing in the property [we] strongly recommend an immediate evacuation until the necessary repairs can be carried out.” [4]

At the initial Tribunal hearing, the Adjudicator did not agree with the evidence presented by the property manager and “emphasised the force of the expression ‘unliveable’, declaring that it means no less than utterly uninhabitable”. [5] The Adjudicator reasoned that “it… wasn’t obvious that there was an emergent situation that rendered them at risk, particularly when the damage is confined to an area that can be shut off from the rest of the house.” [6]

The Appeal Tribunal stated that the only relevant evidence before the Adjudicator as to whether the property was “unliveable” were the reports of DW and Gold Bullet, and posed the question why the advice of Gold Bullet was ignored.

The Appeal Tribunal stated, “It is important if public confidence is to be maintained in the tribunal system…that when a case is sent to a tribunal…an unsuccessful party is entitled to an explanation as to why their case was not accepted.” [7]

The Appeal Tribunal held that ignoring crucial evidence is an error of law, and [8] “Absent any evidence contrary to that of Golden Bullet and DW it must be concluded that the adjudicator’s own view of the state of the premises, sight unseen, was erroneously treated as decisive”. [9]

Accordingly, leave to appeal was granted and the appeal was allowed. The Appeal Tribunal set aside the initial decision and remitted the matter to the registry to be reheard by another Adjudicator.

Conclusion

This appeal decision is a timely reminder for property managers to ensure that, before seeking instructions from their lessor clients to proceed with a course of action under the RTRA Act, they discuss with their lessor clients the evidence that might be required in the event that the action taken eventually leads to a residential tenancy dispute in the Tribunal.

Whilst all parties involved in residential tenancy disputes before the Tribunal must represent themselves (some exceptions apply), they are of course always able to seek legal advice in regard to all aspects of a dispute. If property managers have any concerns about a residential tenancy dispute, including compliance with the RTRA Act or any other relevant legislation, it is strongly recommended that they seek legal advice.

Read another property management article: FAQs: Water charges in tenancies.

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