Tenancy Law Case Summaries (Evictions)

The Applicant occupied a premises and the owner of the premises employed the Respondent as a letting agent. The Respondent issued a notice to leave before the last day of the fixed term. The Applicant did not leave and the Respondent applied to QCAT for an order for termination and for compensation for rent arrears. At first instance, the Member ordered the issue of a warrant of possession and that the Applicant pay compensation for arrears.

Decision

The Applicant successfully appealed the decision and the original orders were set aside entirely.

Reasons

Although the notice to leave was properly given under the agreement and the Act, there was a discrepancy between the notice to leave presented to the QCAT member at the hearing (the ‘without grounds’ box had been marked, meaning the giver did not need to specify a ground or reason) and the notice to leave before the member on appeal.

The notice to leave before the member on appeal, which was the original copy, the ‘without grounds’ box had not been checked. Nothing in the original document signified whether the notice to leave was given with or without grounds, which breached section 326.

With regards to the compensation order, failure to pay rent is a breach of the tenancy agreement and might have been the subject of an application under section 419 only if the Respondent had first made a “dispute resolution request” under section 416.

The original application before the Member was an urgent one for a termination order under section 293. The other claims in the application to the Tribunal were not urgent and, in the absence of evidence of compliance with section 416, the Tribunal had no jurisdiction to make the compensation order.

You can read the full decision here: Adams v Scowcroft [2012] QCATA 25

The Appellant was issued a notice to leave without grounds from the Respondent. He was entitled to two months’ notice, however the notice period given was one day short of two months. At first instance, the Adjudicator used section 349 to excuse the non-compliance and dismissed the Appellant’s application to set aside the notice to leave.

Decision

The Appellant sought leave to appeal the decision to set the notice aside. Leave was granted.

Section 349 is specific. The Tribunal cannot use section 349 to excuse non-compliance with the requirement of two months’ notice because it was not the lessor who filed the application for termination (here, it was the tenant). The Act is prescriptive about the requirements for issuing notices and the commencement of proceedings.

You can read the full decisions here: Lovel v Uribe 2013-qcata-347-330701

The Appellant brought an interlocutory application to stay the operation of the original decision which terminated a lease agreement. The second ground of appeal provides that the Adjudicator erred by finding the notice to remedy breach and notice to leave served by email were properly served.

Decision

The Adjudicator found in favour of the Respondent as the Appellant had no reasonably arguable case that the procedural defects in the notices impeached the decision of the original Adjudicator.

The Act only requires the Respondent to give the notices to the Appellant and this may be done via email if (a) an email address is stated in the tenancy agreement and (b) it is indicated that a notice may be given via email.

Despite the Appellant only satisfying (b), there was evidence that he indicated he was willing to receive notices via email, which he did, and that there was ultimately no prejudice or detriment due to delivery via email.

You can read the full decisions here: Crinis v Ray White Paradise Group [2016] QCATA 90

The Appellants were responsible for collecting rent from the Respondents, who bought their home on a ‘rent to buy’ plan. The Appellants believed that the Respondents were behind in their payments, and therefore issued a notice to remedy breach and then a notice to leave. They then filed an application to terminate the tenancy agreement, which was refused.

Decision

The Appellants sought leave to appeal, stating that the Tribunal erred in finding an error on the face of the rental ledger which rendered the notice to remedy breach invalid. Leave to appeal was granted, but the appeal was ultimately dismissed.

The notice to remedy breach was invalid. The Respondents were only $50 in arrears (when the weekly rent was $440). A notice to remedy breach can only be issued if the rent payable has remained unpaid for at least 7 days. As the Respondents were only behind $50 at the date the notice to remedy breach was issued, the notice was invalid.

The tribunal has no power to waive defects in notices to remedy breach, only power to waive defects in a notice to leave. Even if the Appellants could demonstrate that the notice to remedy breach and notice to leave were validly given, the tribunal stated it would not have exercised its discretion to terminate the agreement, as $50 in arrears was not a good enough reason to terminate a rent to buy contract.

You can read the full decision here: Ray White IMS v Scott [2015] QCATA 186

Under the tenancy agreement, the Appellant tenants were responsible for payment of the water consumption charges, which the Appellant failed to pay such that over $5,000 was owing. The Respondents issued notices to remedy breach which did not resolve the situation, and later a notice to leave was served.

Decision

The Appellants sought leave to appeal the decision that granted the Respondent a termination order. Leave was granted and the termination order was set aside.

The Respondents had complied with all relevant statutory provisions and time requirements for the termination process. The Respondents had established grounds of the application and the notice to leave. The Appellants had committed a breach of the agreement by failing to pay water consumption charges. However, the notice to remedy issued by the Respondents had not expired before the notice to leave was given. It was therefore not open to QCAT to issue a termination order on the basis of that notice to leave.

You can read the full decision here: Horsley v Davis [2021] QCATA 124

The Respondent landlord filed an application for a termination order on the ground of the Applicant’s failure to pay rent. This was the fourth time the Respondent had attempted to remove the applicant from the property.

At the hearing, the Applicant was not present, and the Tribunal granted the termination order. The Tribunal then became aware that the Applicant had faxed the Tribunal a day prior to request an adjournment due to health issues. The Tribunal exercised its discretion to waive a procedural requirement regarding an Application to Reopen and allowed the matter to be reheard. The tenant claimed she had paid her rent, she had receipts to prove such, and in any event, the notices were defective.

Decision

The notice to leave was set aside and the Applicant was not in rental arrears. Furthermore, in any event, the notices were defective.

The Applicant had compelling evidence that she had paid her rent through her partner (who was not on the lease). Evidence showed that the Respondent was aware of these unmarked payments and knew that these were on behalf of the tenant, but they had selectively chosen to ignore that likelihood. As such, the Respondent sought to issue notices to remedy breach and notice to leave in a back handed attempt to evict the Applicant from her home.

The notices were defective on two grounds. Firstly, Notice to Remedy Breach was delivered by mail, which meant an extra two days (plus the ordinary seven days) was required to allow the breach to be remedied. However, the Respondent only gave eight days. Secondly, it was defective because the applicant had paid all rental monies that were due and owing.

When the Applicant received the notice, she tried to contact the Respondent, but was unsuccessful and had recently had health problems. The Tribunal found that the ongoing actions of the Respondent towards the Applicant to evict her deplorable in the extreme.

You can read the full decision here: Lindenberg v Kalwan Development Corporation [2012] QCAT 259

The Respondents lessors commenced two processes to regain possession of the property from the Appellant tenant: a sale contract matter, stating there was a need for vacant possession due to a contract of sale, and a ‘rental arrears’ matter.

After issuing notices to leave in both matters, the Respondents then made applications to QCAT. The application related to the ‘sale contract’ was within the timeframe required, but before the handover date for the ‘rental arrears’ matter.

At first instance, the Adjudicator made a termination order on the ‘rental arrears’ matter only and did not consider the ‘sale contract’ matter. The Appellant then appealed that decision on the basis that the Respondents did not follow the correct procedure regarding the timeframes for the ‘rental arrears’ matter.

Decision

The Respondent complied with the correct timeframes regarding the notices to leave in both the ‘sale contract’ and ‘rental arrears’ matters, however the Tribunal could not proceed to determine an application for a termination order on the basis of the ‘rent arrears’ matter made before the nominated date to vacate the property had passed.

The language of section 293 does not permit a termination order being sought before the handover date has passed. It would be strange if the legislature intended to set a strict outer limit to a landlord’s right to seek termination, but left the time for commencement open-ended. The timeframe to make an application commences immediately following the date to vacate. This interpretation is more consonant with the object of stating clearly the rights and obligations of tenants, particularly in residential tenancies.

You can read the full decision here: Crowther v Jaunitis [2022] QCATA 137

The Applicant had lived in a unit owned by the Respondent for three years under a periodic agreement.

In about May 2013, and then again in May and June 2015, there had been conflict between the Applicant and the Respondent resulting in breach notices. The Applicant had filed an application for dispute resolution in relation to these notices.

On 4 June 2015, the Respondent issued a notice to leave without grounds, requiring the Applicant to vacate by 10 August 2015. The notice to leave was not signed or dated.
On 24 July 2015, the Applicant filed an application to set aside the notice on grounds that it was retaliatory.

Decision

The application was dismissed.

Section 292 requires that an application to set aside a notice to leave must be made within four weeks after the notice was given. Neither the application for dispute resolution the application to set aside the notice to leave meet the time limit, and the Tribunal has no discretion to vary or waive the time limit. Therefore, the Tribunal did not consider setting aside the notice.

Section 326 provides that a notice to leave must be signed by or for the lessor. The notice to leave was invalid. However, section 341 enables the Tribunal to exercise discretion in making the order to terminate if it is satisfied that is appropriate, which the Tribunal did.

You can read the full decision here: Wilks v Integrated Family and Youth Service Ltd [2015] QCAT 322

The Respondents moved into a house that contained 3 air conditioning units. The Respondents issued a Notice to Remedy Breach in February and the Appellants responded by engaging an air conditioning expert. The expert found that two units were undersized and the third was out of gas. The third unit was re-gassed.

The Respondents brough an application for compensation for the lack of air conditioning at a rate of $30 per week for the period they had occupied the house. The learned Member ordered compensation for the tenants for the hotter months of the years at a value of $2,000.

The owners appealed on three grounds, the third being that the notice to remedy breach was incorrectly dated and was, therefore, invalid.

Decision

Leave to appeal was refused.

The date on the notice to remedy breach was incorrect but no one was treating the notice as invalid. A landlord is required to take reasonable steps to ensure the tenant’s right to quiet enjoyment. A notice to remedy breach is not a precondition to a tenant’s right to compensation for breach of quiet enjoyment. Even if the notice to remedy breach was invalid because of the error in the date, the tenants retain their right to claim compensation.

You can read the full decision here: Gimblett and Anor v Turabi and Anor [2011] QCATA 353

The Appellants applied for leave to appeal a decision regarding the repayment of a rental bond. At first instance, the Appellants were held to owe two weeks rent to the Respondent. They argued that because they gave notice to leave two weeks early and left on that date, they did not owe any rent, and should therefore have received a greater proportion of their bond.

Decision

Leave to appeal was refused.

While section 327 (2) states that a notice of intention to leave is not invalid or ineffective merely because the handover day is earlier than the day the term ends, section 331(2)(g) states that the handover day is the later of 14 days after the notice is given and the day on which the agreement ends. Given that the Appellants gave notice they would leave, and did in fact leave, two weeks before the agreement ended, they were liable for those two weeks rent.

The effect of the interplay of sections 327 and 331 is that even if there is a notice to leave, the handover day cannot be earlier than the date the fixed term ends. If a tenant purports to leave prior to the termination of the agreement, they will continue to be liable for rent.

You can read the full decision here: Cordery & anor v Century 21 – Investment Focus[2013] QCATA 218

The Applicants were tenants in a property managed by the Respondent. The Respondent issued a notice to leave, stating the grounds were “End of Lease. Owners require vacant possession”.

The Respondent then made an application seeking termination of the tenancy agreement under section 293, and also on the basis of the Applicants’ alleged objectionable behaviour.

Decision

At first instance, the Tribunal found that the notice to leave gave it the requisite power to make a termination order. The Tribunal did not deal with the allegation of objectionable behaviour. The Applicant’s successfully sought leave to appeal the decision.

The notice to leave was without grounds, as ‘owner seeking vacant possession’ is not a valid ground under the Act. As such, it was not open to the Tribunal at first instance to order the termination of the lease under section 293. Furthermore, the Applicants stated at the hearing that the Respondent had failed to repair and maintain the property, but were unable to adduce that evidence at the hearing because they thought the hearing was about allegations of objectionable behaviour. As such, on appeal, it was held that the Applicants were denied procedural fairness because evidence they were entitled to present in the face of a notice without grounds could not be presented. Leave to appeal was granted.

You can read the full decision here: Alikhan v Mian Prestige Real Estate trading as Ray White Runaway Bay [2010] QCATA 21

The Respondent gave the Appellant a Form 12 notice to leave for a failure to remedy a breach of the tenancy agreement for rent in arrears. At first instance, the Tribunal made a termination decision. The Appellant stated that there was a mistake of fact about rent paid and unpaid, stating that the Respondent was relying on an inaccurate tenancy ledger and said in fact there was a rent credit for the whole of the period of the notice to remedy breach.

The Appellant sought to appeal the termination decision on the basis that a finding that rent had not been paid after 21 November 2023 was incorrectly made in circumstances where the Appellant said they had made three payments after that date.

Decision

The balance of convenience favoured the Respondent because the Appellant did not have a good arguable case on appeal.

At the time of the hearing, the Appellant had not remedied the arrears. While they had made three payments after that date, as opposed to no payments (which the Adjudicator said at first instance), this was not fatal to the Appellant’s case having regard to the section 337 factors: the Appellant was in breach, it was serious, the detriment to the Respondent was obvious, the breach was recurrent, the Appellant had not taken any steps to remedy the breach, and the lessor had acted reasonably in checking records and transferring credits and reissuing invoices.

You can read the full decision here: Du v INA Operations Pty Ltd No 2 [2024] QCATA 017

The Appellant occupied premises under an affordable housing scheme. The Respondent decided to end housing assistance in September 2018 on grounds that the Appellant was absent from the property for eight weeks or more without approval.

The Respondent gave notice to the Appellant to leave on 4 October 2018, and on 6 December 2018, the Tribunal heard the application and decided to order termination of the Appellant’s tenancy.

Decision

The Appellant successfully sought leave to appeal on the basis that there was a fundamental flaw in the facts presented in the Respondent’s evidence.

The Respondent submitted evidence regarding the Appellant’s electricity account disconnection and Centrelink address, both of which were used to justify their argument that the Appellant was absent from the property. These pieces of evidence were found to be inaccurate.

While the Tribunal lacked jurisdiction to review the decision made by the Respondent, it could apply its discretion as to whether or not to make a termination order on the grounds of the ending of housing assistance. The fundamental flaw in the evidence submitted by the Respondent influenced the Tribunal at first evidence to reject the Appellant’s evidence that she had not been absent from the premises over the period concerned.

You can read the full decision here: Betts v Department of Housing and Public Works [2019] QCATA 180

The Applicant was issued a notice to leave without grounds by the Respondent following the end of the tenancy agreement. The tenancy had continued on the basis of a periodic agreement. When the Applicant failed to leave, the Respondent commenced proceedings seeking a termination order for failure to leave.

The Applicant filed a counter-application seeking an order that the notice be set aside because it was given in retaliation of an ‘ongoing tenancy dispute.’

The learned Magistrate held that the notice was not retaliatory; the Applicant had failed to leave in compliance with the notice; the Respondent was entitled to an order terminating the tenancy on the grounds of failure to leave; and an order that a warrant for possession be issued and remain in effect for 14 days after the tenancy ended. The Applicant sought to appeal that decision and argued that she had been denied natural justice. In her view, the Magistrate had been biased toward the Respondent and wrongly failed to take into account the detrimental effect which the order would have on her family.

Decision

Leave to appeal was rejected as there was no discernible appearance of bias in the learned Magistrate’s decision.

This was a relatively simple case with only one central issue – whether or not the notice to leave was valid. Where a tenant reasonably believes a notice to leave without grounds is given in contravention of section 291, the tenant may apply to the Tribunal for an order to set aside the notice. The application must be made within 4 weeks after the notice was given. The Applicant here did not take that step within time. Further, she did not produce any evidence to show that the notice was retaliatory.

You can read the full decision here: Cummings v Cairns and District Regional Housing Corp Ltd [2013] QCATA 161

The Applicant leased a property from the Respondent. The Respondent issued a notice to leave without grounds under section 291 which required the Applicant to leave on the date on which the tenancy expired under the tenancy agreement. The Applicant commenced proceedings, seeking, among other things, the setting aside of the notice to leave as retaliatory.

Decision

The Application for leave to appeal was dismissed.

A history of tension between parties does not necessarily mean that a landlord’s action deserves to be described as retaliatory. The Queensland legislation differs significantly from comparable provisions of the NSW Act, which vitiates a notice to leave if `the landlord was wholly or partly motivated by an intention to retaliate. The words ‘or partly’ do not appear in the Queensland Act. A degree of unhappiness with a tenant does not ipso facto prove retaliation.

You can read the full decisions here: De Bruyne v Ray White Waterford [2020] QCATA 113

The Applicant entered into a tenancy of residential premises for a fixed six-month term and prior to the end of the term, the Respondent offered a renewal of the residential tenancy for a further six-month fixed term. The Respondent informed the Applicant that if he did not intend to renew the tenancy for a further six-month term, then he should complete a notice of intention to leave form. The Applicant wished to continue on a periodic tenancy agreement as per the tenancy agreement. The Respondent issued the Applicant a notice to leave and the Applicant applied to QCAT to overturn the notice to leave.

Decision

The Applicant’s application for leave to appeal was dismissed.

There was no retaliation in circumstances where there had been no relevant action taken by the Applicant against which the Respondent’s notice could be found to have retaliated. It was appropriate, in the absence of an agreement to leave the premises at the end of his tenancy, for the Respondent to issue a notice to leave to be legally able to install a new tenant in the premises.

You can read the full decision here: Donovan v Inkster [2015] QCATA 147

The Applicant was given a notice to leave without grounds by the Respondent. The Applicant filed an application to set that notice aside, claiming the notice was retaliatory, which was dismissed. The Applicant applied for leave to appeal that decision.

Decision

Leave to appeal was granted on the basis that sections 291 and 292 did apply, however the appeal was then refused.

At first instance, the adjudicator had considered that sections 291 and 292 did not apply because the notice did not require the tenant to leave before the expiration of the fixed period set out in the tenancy agreement. This was incorrect. A notice can be retaliatory even if the tenant is not required to leave before the expiration period. Nevertheless, the Applicant had failed to adduce evidence that the notice was retaliatory, and so the appeal was refused.

You can read the full decision here: Du Preez v Linda’s Homes Pty Ltd [2010] QCATA 2

The Appellant was a tenant of an acreage property. The Respondent, being the lessor’s agent, issued a notice to remedy breach for failure to pay rent. The Respondent then issued a notice to leave, and subsequently applied for a termination order.

Decision

The Appellant sought leave to appeal the termination order on various grounds, including that the Respondent made errors in the notices that were not just clerical errors, the Respondent failed to maintain the property, had not reimbursed the Appellant for emergency repairs and issued notices when he knew the Appellant was on holiday.

The Appellant was unsuccessful.

The Adjudicator found in favour of the Respondent and considered that, in all the circumstances, section 349 could apply to remedy the defective notice to leave (the error being that it does not state the correct date that rent was paid until).

While the Appellant had asked the Respondent to pay for a fence and some maintenance work, this did not relieve them from the obligation to pay rent. The correct procedure was to pay the rent and then apply to the tribunal for compensation. Essentially, there was no reason to disturb the findings of the Adjudicator at first instance.

You can read the full decision here: Scott v Xiao [2013] QCATA 268

The Respondent rented premises from the Appellant. The Respondent let the premises and a dispute arose about the bond of $1,000. She brought proceedings and QCAT found that she had given adequate notice of her intention to leave, and that she should not be held responsible for the alleged damage (except replacing the rubbish bin).

The Appellants sought leave to appeal, arguing that the Respondent had not given adequate notice of her intention to leave because the notice was by email and the Appellants did not receive it.

Decision

Leave to appeal was granted as the Magistrate had applied the incorrect legislation, however the appeal was dismissed as the Magistrate had found that adequate notice had been given by the Respondent and this finding should not be disturbed.

While the Appellant claimed that they never received the notice to leave, the Respondent claimed she used the email address given by the staff of the Appellant. While section 327 prescribes that the notice must contain certain information, there was nothing in this notice to suggest it was deficient. An email notice can be sufficient.

You can read the full decision here: Rental Homes Now v Kelly [2011] QCATA 336

The Applicant sought compensation for various amounts regarding the Respondents’ early termination of their lease. The Respondents made a counter-claim for compensation for various breaches of the Applicant, including deficiencies with the state of the property (cleaning, maintenance and security issues) that were not rectified.

The issue was whether the lease had been validly terminated and thus how the compensation should be awarded.

Decision

It was held that the lease had been validly terminated, and the Respondents were awarded compensation.

The Respondents relied on the fact they had served a notice of intention to leave, however the document they served was a ‘Resident Leaving Form for rooming accommodation’ (s 379). The dispute related to a residential tenancy agreement and not a rooming accommodation agreement, and therefore the notice was invalid.

However, the Respondents were still entitled to terminate on the basis they had independently served a valid ‘Notice to Remedy Breach (s 325) which had not been complied with. The Respondents were justified in terminating early because of the Applicant’s failure to properly remedy all of the identified breaches.

You can read the full decision here: Mooney and Anor v Peterson and Anor [2012] QCAT 116

The Appellants had a contract for sale of their house. The buyer wanted vacant possession. Settlement was scheduled for 22 February 2016. The Respondents were tenants of the house. The tenancy agreement was due to expire on 17 February 2016.

On 3 December 2015, the Appellants gave the Respondents a notice to remedy breach, and then also a notice to leave, stating the Respondents were operating a business at a residential premises without the necessary permission.

On 21 December 2015, the Appellants gave the Respondents a notice of intention to sell the house, with no notice of a need to vacate the house.

The Respondents left on 29 February 2016. The Appellants could not give the buyer vacant possession on 22 February and were required to pay compensation to the buyer.

Decision

The Appellants sought to recover the buyer’s compensation from the Respondents. At first instance, the Tribunal refused. The Appellants then unsuccessfully appealed.

The Appellants did not give a valid notice to leave. They nominated a breach of the tenancy agreement as the reason for the notice, but did not give the Respondents the appropriate notice. The Appellants did not give a notice to leave because the property was sold, which they were entitled to do. As such, the Respondents were entitled to hold over the lease, and were not responsible for compensating the Appellants for their error in the form of notice provided.

You can read the full decision here: Menso v Devir [2017] QCATA 80

The Respondents lived in house rented from the Appellant for about three years. Occasionally, one of the Respondents complained to the Appellant about the condition of the house. Matters came to a head in October 2012, when the Respondents told the Appellant they were tired of complaining but getting no action and would take the issue further.

On 8 October 2012, the Appellant issued a notice to leave without grounds. On 10 October 2012, the Respondents issued a notice to remedy breach and later filed an urgent application seeking urgent repairs, an order about the failure to comply with maintenance obligations and an order to set aside the notice to leave.

Decision

The Tribunal found the Appellant’s notice to leave without grounds was retaliatory under section 292 and set it aside. The Tribunal also ordered the Appellant to pay the Respondents compensation of $2,600. The Appellant successfully appealed the compensation order.

The Respondents made an urgent application on three grounds. None of these grounds empowered the Tribunal to order compensation. The Tribunal’s power to order compensation for lack of amenity lies in either section 94 or section 419, and an application under either section is not an urgent application. Therefore, the Tribunal could not consider any such application until the Respondents first made a dispute resolution request.

The Respondents had asked the RTA for assistance and were advised to bring the dispute straight to the Tribunal, which is why they did not first make a dispute resolution request. Furthermore, section 419(3) requires that an application for compensation is made within 6 months of a person becoming aware of the breach. The Respondents were aware of the problems long before they issued the notice. As such, the claim for compensation was dismissed.

You can read the full decision here: Bamfield v Zanfan Pty Ltd trading as Main Street Realty Caloundra [2010] QCATA 1

The Respondent lived in caravan park. On 10 June 2014, the Appellant issued a notice to remedy breach, on the grounds that the Respondent was causing nuisance and interfering with peace and enjoyment of other park residents. On 16 June 2014, the Respondent issued his own notice to remedy breach, on the grounds that the neighbours were being abusive and threatening. On 23 July 2014, the Appellant issued a notice to leave without grounds.

Decision

The Respondent filed an application to set aside the notice. The Appellant did not appear at the hearing, and because of that, the notice was set aside. The Appellant then successfully appealed this decision.

One of the Appellant’s arguments was that there was no evidence before the Tribunal Magistrate which met the tests for setting aside a notice to leave without grounds as required by section 291. On appeal, the Tribunal confirmed that a notice to leave could not be set aside on the sole basis that the Appellant did not appear at the hearing. The notice could only be set aside if the notice to leave was in retaliation to the Respondent enforcing his rights.

The Tribunal on appeal found the notice was not retaliatory. The Appellant waited six weeks after the Respondent issued a notice to remedy breach before issuing the notice to leave, and there was no evidence that the Respondent took further action on his notice to remedy breach. The Respondent’s application was dismissed.

You can read the full decision here: Bertlen Pty Ltd v Porter [2015] QCATA 10