Atkinson v Anderson[2025] QCATA 69

REASONS FOR DECISION

1. [1]
   In April 2023, Travis Atkinson and his partner moved into a room in Monica Anderson’s home at the Sunshine Coast.
2. [2]
   Within the first two weeks of moving into the property, a dispute arose between the parties. As a result, on 13 May 2023 Ms Anderson issued Mr Atkinson with a Notice to Leave.
3. [3]
   Mr Atkinson and his partner left the property on 21 May 2023. At that time, all outstanding rent was paid, and the bond was returned.
4. [4]
   Mr Atkinson and his partner were unable to find alternative accommodation and began living at a National Park Campsite.
5. [5]
   On 8 November 2023, Mr Atkinson made an application for minor civil dispute – residential tenancy dispute to the Queensland Civil and Administrative Tribunal (‘QCAT’) claiming that he was “unlawfully evicted”.
6. [6]
   Mr Atkinson claimed the following amounts:

7. [7]
   The Tribunal below determined that Mr Atkinson had not made out his case for compensation on a fair and reasonable basis under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRA Act’). The Tribunal dismissed the application.
8. [8]
   Mr Atkinson has appealed the Tribunal’s decision on questions of mixed fact and law.
9. [9]
   Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary.^[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.^[2]
10. [10]
    I will address each of these grounds in turn.

11. Leave to file fresh evidence

11. [11]
    On 4 March 2025 Mr Atkinson filed an application for leave to file fresh evidence. 
12. [12]
    Mr Atkinson wants to make references to the case of Roberts v McGrath Estate Agents Springfield^[3] stating that “the appeal tribunal should accept the case for consideration in making a decision consistent with previous QCAT rulings”.
13. [13]
    This request is more in the nature of a submission rather than evidence. Evidence describes, explains, demonstrates or supports the parties’ claims. Submissions are legal arguments which are used to argue the case. They are used to identify the law and explain how it applies to the facts of the case.
14. [14]
    A party may file submissions as part of the standard appeal process without needing leave. I dismiss the application and will deal with Mr Atkinson’s points as a submission.

11. Did the Tribunal err in making a decision that was inconsistent with Roberts v McGrath Estate Agents Springfield?

15. [15]
    Mr Atkinson submits that the Tribunal’s decision is “vastly inconsistent with the decision of Roberts v McGrath Estate Agents Springfield”.
16. [16]
    The Tribunal is not bound by previous QCAT decisions^[4] but they can be persuasive. That means the Tribunal may consider a previous decision, but is not obliged to follow it. QCAT decisions turn on their facts, therefore decisions do not automatically apply to other cases, even if the facts are similar.

    1. In Roberts, during the tenancy the back deck became unsafe rendering the property unfit to live in. The lessor issued a notice to leave. The tenants sought compensation for the abrupt termination and related expenses. The Tribunal found that, under s 420 RTRA Act, the failure to give timely notice constituted a breach of the lease. The Tribunal accepted some of the Applicants’ claims for compensation.
17. [17]
    The facts of Roberts are very different from those of the current situation. Even if the Tribunal was required to consider previous decisions of the Tribunal, this case is not persuasive.
18. [18]
    The Tribunal did not err in failing to make a decision that was consistent with the decision of Roberts.

11. Did the Tribunal err in failing to consider sections 419 and 420 of the Act?

19. [19]
    Mr Atkinson submitted that “the decision does not consider or explain the application of s 419, s 420 of the Act.”
20. [20]
    Section 419 of the RTRA Act states that an application can be made to QCAT for a breach of a term of a residential tenancy agreement.
21. [21]
    Section 420 of the RTRA Act confers powers on the Tribunal to make Orders about a breach of a residential tenancy agreement.
22. [22]
    These sections confer power on the Tribunal to consider and make orders about a breach of a residential tenancy agreement. They do not give Mr Atkinson a cause of action. There is no requirement for the Tribunal to acknowledge these powers in order to exercise them. It is clear that the Tribunal was exercising these powers.

11. Error in interpretating the matter as a bond dispute

23. [23]
    In June 2023, Mr Atkinson referred the matter to the Residential Tenancies Authority (‘RTA’) for investigation.  In its letter dated 29 August 2023, The RTA considered that the evidence supported the finding that Ms Anderson failed to lodge the rental bond in time;^[5] and had misconceived the requirement to pay rent in advance.^[6]
24. [24]
    In October 2023, Mr Atkinson made a request for RTA dispute resolution. An agreement was not reached, and Mr Atkinson lodged an application with QCAT.
25. [25]
    Mr Atkinson submits that “a mistake was made by the RTA in interpreting this as a bond dispute and this mistake carried over into the decision (paragraph 55)”.
26. [26]
    The RTA dispute resolution request was discussed at depth by the Tribunal below. At paragraph 55, the Learned Adjudicator stated that:

“…The communications Anderson provided in October 2023 was an email from Anderson “From the RTA advising of a dispute resolution request in relation to the non-lodgement of the bond.” … The email from Dean at the RTA on October 24 explained, “the dispute is in relation to Travis Atkinson who said that he moved out in May this year. I have spoken with him this afternoon and he has corrected the reason for dispute to be for a possible incorrectly issued notice to leave. …”

27. [27]
    It is clear from this paragraph that the Learned Adjudicator considered that the dispute extended beyond the purported “bond dispute”.
28. [28]
    While there may be an argument that the RTA mistakenly interpreted this as a bond dispute, this mistake was not carried over into the decision of the Tribunal below.

11. Did Ms Anderson interfere with the quiet enjoyment of Mr Atkinson?

29. [29]
    Mr Atkinson submits that the Tribunal erred in saying that Ms Anderson’s actions were not an interference with his peace and comfort (‘quiet enjoyment’).
30. [30]
    The provider’s obligations to ensure the resident has quiet enjoyment are set out in s 249 of the RTRA Act:

3. 249
   Quiet enjoyment

3. (1)
   The provider must take reasonable steps to ensure the resident has quiet enjoyment of the resident’s room and common areas.

3. (2)
   The provider or provider’s agent must not interfere with the reasonable peace, comfort or privacy of the resident in using the resident’s room and common areas.

31. [31]
    Quiet enjoyment is not defined in the RTRA Act.
32. [32]
    Conduct amounting to breach of quiet enjoyment may take many forms. At common law, the mere threatening of eviction does not amount to a breach of the obligation.^[7] Likewise, a verbal disagreement will not amount to a breach of quiet enjoyment. Ordinarily, the conduct must go to more than mere threats to take action and include a physical interference, such as repeated knocking and shouting at the tenant’s door.^[8]
33. [33]
    While his interactions with Ms Anderson may have caused Mr Atkinson emotional distress, I can find no case that supports the principle that, absent a physical interference, Ms Anderson’s actions amounted to a breach of the obligation to provide quite enjoyment.
34. [34]
    As I am required to make a decision that is consistent with existing legal principles,^[9]  I do not consider that the Tribunal below erred in fact or in law.
35. [35]
    The Tribunal stated stressed that quiet enjoyment should be considered in the context of the agreement. The Tribunal thought it important that, unlike a tenancy situation where a landlord provides the tenant with exclusive use and occupation of the complete premises, Mr Atkinson and Ms Anderson were living in close proximity.^[10]
36. [36]
    Mr Atkinson submits that, “the decision seems to lessen the onus on parties, who when living in close quarters, might expect to put up with a certain degree of annoyance...”.
37. [37]
    While the obligation to provide quiet enjoyment must be read subject to the lease, common law authorities show a reluctance to read the obligation down.^[11]
38. [38]
    The Tribunal below was wrong to imply that the obligation is lessened because the parties were living in close proximity. However, the error did not cause Mr Atkinson a substantial injustice as, irrespective of the standard applied,^[12] Ms Anderson’s actions did not amount to a breach.

11. Wrongful termination

39. [39]
    The Tribunal below held that:

“…whilst it is the case that…the notice given by Anderson to Atkinson was deficient and devoid of particular requirements specified in the Act for a lawful reason to terminate the rooming accommodation agreement those things themselves do not give rise to any compensation.”^[13]

40. [40]
    Mr Atkinson submits that:

“The decision has incorrectly interpreted if compensation is available. A key issue in the decision is that because Atkinson left the property after being issued an unlawful notice to leave, he is not entitled to compensation.”

41. [41]
    The Tribunal below was correct in finding that the notice given by Ms Anderson to Mr Atkinson was unlawful.
42. [42]
    However, there are several other ways a tenancy agreement can end, including by mutual agreement.^[14]
43. [43]
    There is a mutual termination agreement signed by Mr Atkinson and his partner Ms Bui on 11 May 2023. Ms Anderson did not sign this document; but, by repaying the bond, she can be considered to have accepted the terms of the agreement.
44. [44]
    In providing Ms Anderson with the mutual termination agreement, Mr Atkinson has effectively waived his right to claim damages for the breach. A ‘waiver’ is a binding election between inconsistent rights. It is final in the sense that the inconsistent right must be regarded as having been lost. In this instance, Mr Atkinson has lost his right to claim damages.^[15]
45. [45]
    Mr Atkinson further submits that:

“… the decision incorrectly applies s 427 of the Act and denies the operation of that section. The law is clear in stating that the tribunal has discretion to award compensation in the circumstances.”

46. [46]
    Section 427(5) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) gives the Tribunal discretion to order compensation if the agreement is ended because of the provider’s actions.
47. [47]
    The Tribunal below considered this issue at length and concluded that Mr Atkinson had not provided sufficient evidence in support of his claim. The Learned Adjudicator likewise considered that what transpired between Mr Atkinson and Ms Anderson could not be regarded as serious or substantial.^[16]
48. [48]
    Where what is being appealed against is the way the Tribunal below exercised a discretion of this kind, the Appeal Tribunal will not interfere unless it can be shown that the Tribunal acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters.^[17] Just because the Appeal Tribunal might have exercised the discretion differently, that is not a basis for changing the decision: it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion.^[18]
49. [49]
    Leave to appeal is refused.

Orders

1. Application to file fresh evidence refused.
2. Application to appeal allowed.
3. Appeal refused.