Willis v Varghese[2025] QCATA 70

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is this application about?

1. [1]
   Mr Willis seeks leave to appeal, and if granted, to appeal a decision made by the Tribunal below on 17 March 2025 to evict him from his room in a share-accommodation unit for seniors owned by the respondents, and managed for them by Calyptus Management Pty Ltd.
2. [2]
   The corporate entity of the first respondent was mis-identified in the application (and indeed in the minor civil dispute proceeding below) and the first order of the Appeal Tribunal is to correct it.

3. [3]
   On 16 June 2025 the Appeal Tribunal stayed the eviction pending the outcome of the application for leave to appeal and the appeal, now determined as follows.

Factual background to the dispute

4. [4]
   On 22 October 2024, by an email sent at 7.35pm, Mr Willis was given a Form R12 Notice to leave his rooming accommodation upon the expiry of the fixed term of his agreement, being 12 February 2025.
5. [5]
   The following applications for residential tenancy disputes were brought to the Tribunal:

   1. Q12677-24, being an application by Mr Willis to set aside a Form R11 Notice to remedy breach for rent arrears,
   2. Q2749-25 being Mr Willis’ application to set aside the Form R12 given 22 October 2024 on the grounds that it was retaliatory (under s 246A of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act)), and
   3. Q2391-25, being the respondents’ application under s 350 of the RTRA Act for a warrant of possession for the room occupied by Mr Willis based on his failure to leave pursuant to the Form R12 given 22 October 2024.
6. [6]
   Mr Willis had also filed an application to stay the termination application and an application to adjourn the termination proceeding. The grounds were a failure to file a Notice of Unresolved Dispute and a failure by the applicant to serve the application. Mr Willis clarified that these objections did not relate to the warrant application, but rather to a dispute about the accuracy of the tenancy ledger.
7. [7]
   The ledger dispute was not the subject of the three applications before the Tribunal below on 17 March 2025. None of the applications required a Notice of Unresolved Dispute because they were urgent applications (s 415 of the RTRA Act applies).
8. [8]
   In the hearing on 17 March 2025:

   1. Q12677-24 was withdrawn by Mr Willis on the basis that rent had been brought up to date and the respondents were taking no action in relation to the Form R11,^[1] and
   2. Q2749-25 was dismissed on the basis that the Tribunal below did not consider that the R12 was retaliatory, and
   3. As the R12 was not set aside, after considering the application in Q2391-25, the Tribunal below made a two-part decision, namely:
   1. to terminate the rooming accommodation agreement (order 1), and
   2. to issue a warrant of possession (orders 2 to 5).
9. [9]
   Mr Willis originally filed one application for leave to appeal and to appeal all three decisions but upon engaging with Registry, elected to proceed with this application for leave to appeal and to appeal in relation to the termination decision in Q2391-25 only.^[2] 
10. [10]
    As the parties to the three matters varied, Calyptus Management Pty Ltd incorrectly carried through as a party to this proceeding, even though it was not the applicant in Q2391-25 and merely represented the property owners in that proceeding.
11. [11]
    The first three orders of this Appeal Tribunal for removal, joinder and representation are administrative in nature, intended to reflect the minor civil dispute proceedings that carry through on appeal and the actual conduct of this proceeding.  

Applications for leave to appeal under the QCAT Act

12. [12]
    Pursuant to s 143(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), Mr Willis requires leave to appeal, which requires him to satisfy the Appeal Tribunal that:

    1. there is a reasonably arguable case of error in the primary decision;^[3]
    2. there is a reasonable prospect that he will obtain substantive relief;^[4] and
    3. leave is needed to correct a substantial injustice caused by the error;^[5] or
    4. there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.^[6]

The grounds of appeal

13. [13]
    Mr Willis alleges as his grounds of appeal the following errors of law:

    1. The learned Adjudicator ignored Mr Willis’ evidence and accepted the respondents’ evidence without challenge. It is an error or law for a decision-maker to make a decision which is manifestly unreasonable by failing to give adequate weight to a relevant factor of great importance or to give too much weight to irrelevant factors.^[7] 

    2. Mr Willis says he was denied procedural fairness/natural justice in breach of his human rights because during the hearing the Adjudicator ‘rail-roaded’ Mr Willis into accepting the Adjudicator’s speeches, ‘tricked’ Mr Willis into accepting the refusal of his request to adjourn and bullied him into having the three applications heard together. Denial of procedural fairness is also an error of law. 

14. [14]
    Additionally, as the Appeal Tribunal has observed, “there is a fundamental obligation on any court or tribunal to satisfy itself as to jurisdiction when being asked to quell controversies that come before it”.^[8]  This means that the Appeal Tribunal itself must be alert to jurisdictional errors, even if the application does not raise jurisdiction as a ground of appeal. In this proceeding, such an error arises. 

New evidence

15. [15]
    Each party appears to have filed new evidence in the proceeding, but neither filed an application for leave to rely on additional evidence despite directions made 16 June 2025 that they do so.
16. [16]
    The additional evidence tendered by both parties pertains to allegations by each against the other about behaviour which is not relevant to the decision under appeal.
17. [17]
    Leave to rely on new evidence is refused on that basis.

The jurisdictional issue

18. [18]
    The application came before the Tribunal below as an application for minor civil dispute – residential tenancy dispute.
19. [19]
    Section 11 of the QCAT Act confers the Tribunal’s jurisdiction over minor civil disputes which by schedule 3 include tenancy matters in relation to which a person may, under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) apply to the tribunal for a decision. 
20. [20]
    The RTRA Act defines the following relevant terms:

    1. In s 9, a ‘lessor’ is the person who gives the right to occupy residential premises under a residential tenancy agreement.
    2. In s 10, ‘residential premises’ are premises used, or intended to be used, as a place of residence or mainly as a place of residence.
    3. In s 11, a ‘residential tenancy’ is the right to occupy residential premises under a residential tenancy agreement.
    4. In s 12, a ‘residential tenancy agreement’ is an agreement under which a person gives to someone else a right to occupy residential premises as a residence,^[9] whether the right is a right of exclusive occupation^[10] and whether partly or wholly written, oral or implied,^[11] but an agreement is not a residential tenancy agreement if it is a rooming accommodation agreement.^[12] 
    5. In s 13, a ‘tenant’ is the person to whom the right to occupy residential premises under a residential tenancy agreement is given.
    6. In s 14, a ‘resident’ is a person who in rental premises, occupies 1 or more rooms as the person’s only or main residence and who is not the provider or a relative of the provider.
    7. In s 15, ‘rooming accommodation’ is accommodation occupied or available for occupation by residents, in return for the payment of rent, if each of the residents:
    1. has a right to occupy one or more rooms; and
    2. does not have a right to occupy the whole of the premises in which the rooms are situated; and
    3. does not occupy a self-contained unit; and
    4. shares other rooms, or facilities outside of the resident’s room, with one or more of the other residents.
    8. The requirements under s 15 are cumulative in that, each must be met for the arrangement to be deemed rooming accommodation. However, s 44 excludes the RTRA Act from applying to rooming accommodation that is provided by a person in a premises if, among other things:
    1. the premises are the person’s only or main place of residence; and
    2. not more than three rooms in the premises are occupied, or available for occupation, by residents.
    9. In s 16, a ‘rooming accommodation agreement’ is one under which a provider provides rooming accommodation to a resident in rental premises.
    10. In s 17, a ‘provider’ is the person who provides rooming accommodation to residents.
    11. In schedule 2, ‘rental premises’ means the premises in which rooming accommodation is provided.
21. [21]
    It is not contentious that the arrangement was one of rooming accommodation.
22. [22]
    Section 366 of the RTRA Act provides that a rooming accommodation agreement end only in 1 of the following ways (emphasis added): 

    1. the provider and resident agree, in a separate written document, to end the rooming accommodation agreement;
    2. the provider gives the resident a notice requiring the resident to leave the rental premises and the resident leaves the premises;
    3. the resident or provider gives a notice terminating the agreement on a stated day;
    4. if there is only 1 resident for the agreement, that resident gives the provider a notice ending residency interest, and vacates the rental premises, or the resident dies;
    5. the resident vacates, or is removed from, the rental premises after receiving a notice from a mortgagee or appointed person under section 384;
    6. the resident abandons the resident’s room and the period for which the resident has paid rent has ended; or
    7. the tribunal makes an order terminating the agreement.
23. [23]
    Section 372 of the RTRA Act permits a provider to give an R12 Notice to leave rooming accommodation at the end of a fixed term agreement, provided the notice is given before the term ends and that it gives at least fourteen days’ notice to leave.
24. [24]
    If a resident considers that a notice to leave amounts to taking retaliatory action (namely, given to intimidate or punish a resident for exercising certain rights), the resident can apply to the Tribunal for an order to set the notice aside under s 276A of the RTRA Act (rather than under s 246A as cited, although the provisions are substantially similar).
25. [25]
    Importantly, s 375 of the RTAA Act permits a provider who has given an R12 Notice to leave and finds the due date for leaving to have passed with the resident still occupying the rental premises, to use reasonable force to remove the resident, provided that police officers are present.
26. [26]
    To facilitate a s 375 removal, s 611 of the Police Powers and Responsibilities Act 2000 (Qld) provides that at the request of a provider, a police officer may enter and stay in a person’s room in rental premises while the provider, or someone helping the provider, exercises a power under s 375 of the RTRA Act, to remove the person or the person’s property from the rental premises.
27. [27]
    As a provider has the statutory right to remove a resident (in police presence) who has failed to leave rental premises on the leaving day set out in an R12 Notice to leave at the end of a fixed term agreement, there is no provision in the RTRA Act for a provider to bring an application to the tribunal for termination on the grounds of failure to leave.
28. [28]
    The R12 given to Mr Willis is in the approved form, provides for far more than the minimum notice period and has not been set aside.
29. [29]
    Accordingly, the respondents, themselves or by their agents, as providers may remove Mr Willis from his unit pursuant to s 375 of the RTRA Act, subject only to having a police presence and without a tribunal order or warrant of possession.
30. [30]
    Section 350(1) of the RTRA Act permits the owner of residential premises to apply to the tribunal for a warrant of possession if:

    1. there is no residential tenancy agreement in place, and
    2. a person is occupying the premises without their consent.
31. [31]
    An application to remove a person occupying residential premises without consent – namely a person who is a not a tenant – is a ‘tenancy matter’ under schedule 3 of the QCAT Act.
32. [32]
    By s 350(4) nothing in s 350 prevents the owner of residential premises recovering possession of the premises under any other process or law.

Outcome of the Jurisdictional Issue

33. [33]
    The Tribunal below fell into an error of law in making the termination order because it could not be made. Leave to appeal is granted on that basis.
34. [34]
    The question is whether a further error was made by the Tribunal below in issuing the warrant of possession in circumstances where the rooming accommodation agreement has not ended because a triggering event in s 366 of the RTRA Act has not occurred.   Can it be said, that where a rooming accommodation agreement remains on foot, the resident nonetheless is occupying “without consent” to ground an application for a warrant under s 350? 
35. [35]
    In the context of s 277, which is the tenancy equivalent of s 366, Judge McGill said this:^[13]

One curious feature of the Act is that a tenancy for a term does not come to an end at the end of the term even if the tenant in fact vacates the premises then and hands back the keys to the lessor. …Even what would amount, under the common law, to a surrender of the tenancy will not have that effect, unless there is an agreement in writing: the Act s 277.

36. [36]
    In Hiscox v PBG Realty [2019] QCATA 112, Member Gordon noted:

[16] Section 277(1) says that a residential tenancy agreement ends only in a way mentioned in the section. This removes any opportunity for common law or equitable principles to apply.  The result of this section is that it is possible for a residential tenancy agreement, in law, to continue indefinitely.  It might be thought that a fixed term residential tenancy agreement must end at the end of the fixed term, but that is not necessarily the case.  That is because of the operation of section 70, which will convert a fixed term tenancy into a periodic tenancy if one of the notices referred to in section 277 has not been given, and there is no written agreement to end the tenancy.

[17] As first the result seems strange and does not match the expectations and beliefs of those who deal with residential tenancies in Queensland on a day to day basis.  For example, it will often be the case that a tenant will agree orally with the lessor to vacate the premises.  In such circumstances, it cannot be said that the tenant has ‘abandoned’ the premises.  Unknown to both sides however, because of the operation of section 277, the residential tenancy agreement will continue and will survive even the reletting of the premises.^[14]  There is nothing to end it.  Similarly, if the premises are destroyed by fire or flood, a residential tenancy agreement will simply continue in law in the absence of any paperwork or a tribunal order ending it.^[15]

[18] Although this is the legal situation, in practice this does not cause difficulties because if either side sought to take advantage of it, the discretion given to the tribunal whether or not to make an order on an application would not permit any such abuse.  For example, if a tenant vacated premises under an oral agreement with the lessor (and so could not be regarded as having abandoned the premises) and then after it had been relet sought to return to the premises, the tenant might apply to the tribunal for an order requiring the lessor to give access to the premises.^[16]  However, the tribunal could refuse to make the order in the circumstances. Similarly, after the departure of a tenant under an oral agreement with the lessor, the tribunal could refuse to make an order compensating the lessor for rent accrued if it was just to do so.^[17]

37. [37]
    A residential tenancy, by definition, arises from the grant by the lessor to the tenant of a right to occupy the property. The right to occupy ends when the agreement ends, which is only by one of the events set out in s 277. Lessors must apply to the tribunal for termination orders if a tenant fails to leave. In that case, the issue of consent to occupy does not arise because the tenant may occupy until the grant of the right to occupy ends, which, on failure to leave is only by a termination order. Section 350(1) does not apply to residential tenancies. Rather, section 350(2) is engaged, requiring the Tribunal to issue a warrant where it has made a termination order on application by a lessor.
38. [38]
    In contrast, s 350(1) applies to rooming accommodation agreements where consent to occupy no longer exists. Where a provider has given a valid R12 Notice to a resident, and the resident does not leave, the provider may remove the resident under s 375. Upon removal, the agreement ends. It would be inconsistent with the right to remove upon the expiry of the R12 leaving date, to find that consent to occupy under a rooming accommodation agreement continues until the agreement later ends by operation of s 366.  Notice of the withdrawal of consent is in fact given by the giving of valid R12. Consent expires on the leaving day. It follows that a s 350(1) warrant application is available to a provider in respect of a failure to leave, even though it will not impact their s 375 rights (per s 350(4).
39. [39]
    In short, the termination order of 17 March 2025 was made in an absence of jurisdiction to do so but the warrant orders were not. The question for the Appeal Tribunal is whether to set the termination decision aside, but to confirm the warrant decision.
40. [40]
    This requires Mr Willis’ appeal grounds to be considered.

Appeal Ground 1: Relevant evidence was ignored, and weight was given to irrelevant evidence

41. [41]
    Although not the decision the subject of this application for leave to appeal or appeal, it is clear from the hearing transcript that the allegations of retaliation were properly ventilated in the hearing.
42. [42]
    Mr Willis alleged that the Form R12 was given in close proximity to various complaints he had made, including requests for repairs to the unit and allegations that Calyptus were managing the property poorly.
43. [43]
    Mr Willis identified his email sent to Ms Paterson at 7.30pm on 22 October 2024 and her almost immediate response at 7.35pm that attached the R12 Notice to leave as an example of this. Ms Paterson directed the Tribunal below to several other emails exchanged between the parties in the weeks leading up to the R12. They included:              

    1. An email from Mr Willis sent 7 October 2024 in which he states he no longer wishes to remain in the rental premises, describes altercations between he and his housemates, and asks about other Calyptus accommodation available.
    2. An email from Mr Willis sent 8 October 2024 in which he says “I am still very serious about leaving, and I wont “get over it”. I am leaving, one way or another!”.
    3. An email from Mr Willis sent 12 October 2024 in which he sends a video of the kitchen tap in need of repair, discusses the notice to remedy breach and expresses that an accusation from one of his housemates was the “final straw” and that he wants to move away: “I don’t care where, as long as it is in Brisbane”.
    4. An email from Ms Paterson on 14 October 2024 in which repairs to kitchen taps are confirmed as being the subject of a work order and discussions are had about other properties, noting that many are taken quite quickly.
    5. An email from Mr Willis on 17 October 2024 advising that he was no longer concerned with the rental premises and to refer any correspondence regarding repairs to his housemates.
    6. An email from Mr Willis on 21 October 2024 in which he relays to Ms Paterson discussions between his housemates about arrangements when he leaves the rental premises, including that one would like to take over his parking space.
    7. On 22 October 2024:
    1. An email from Mr Willis replying to a notice that a plumber will be attending (per the earlier work order) by saying that he is no longer interested in what happens at the rental premises.
    2. An email from Ms Paterson in reply in which she advises that as Mr Willis is named as a ‘tenant’ at the property, he must be given notice of trades attending.
    3. Mr Willis’ reply in which he says:

As a “property manager” I would rate you as the most useless one I have experienced. Full of lame excuses, and the other housemates agree…

4. Ms Paterson’s reply thanking Mr Willis for his feedback and expressing that she would take it on board.
5. Ms Paterson’s email serving the R12 to which Mr Willis sends two replies:

I have been issued a notice to leave for spiteful reasons.

and

I will see you in QCAT Yvette.

44. [44]
    It is very clear on the evidence that the only right Mr Willis exercised contemplated by s 276A(1)(a) of the RTRA Act was to request repairs, in reply to which the respondent was prompt and seemingly unconcerned, and in respect of which it was unnecessary to intimidate or punish Mr Willis for the request because he almost immediately disavowed his interest in the repairs by repeatedly stating that to Calyptus in clear terms. It cannot have been said, on any interpretation of the evidence, that the R12 was given to intimidate or punish Mr Willis for requesting repairs as opposed to his multiple expressions of desire to leave, and his personal views of Ms Paterson’s performance – which are not in the exercise of any right in the hands of Mr Willis. 
45. [45]
    The learned Adjudicator’s decision dismissing the application to set aside the Form R12 was well founded, and his reasons given adequately explained his views.
46. [46]
    Mr Willis did not identify any relevant evidence that was disregarded in relation to the termination and warrant nor any irrelevant evidence that was given in appropriate weight.
47. [47]
    There is no merit in this ground of appeal.

Appeal Ground 2: Denial of procedural fairness/natural justice

48. [48]
    With respect to the onerous^[18] minor civil dispute jurisdiction, it has been said that even though disputes are allocated minimal time, and some are complex and time consuming, parties must still be afforded procedural fairness^[19] and that it is made clear by s 4(c) of the QCAT Act that the objective of achieving justice is not to be sacrificed to conducting proceedings quickly.^[20]
49. [49]
    Procedural fairness results from a fair hearing. Whether a matter has been dealt with fairly depends on what is fair in the circumstances of the case^[21] and whether a party was given a reasonable opportunity of presenting their case.
50. [50]
    The test for apparent bias is whether, in all the circumstances, a fair-minded lay observer with knowledge of the objective facts might entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the issues in the proceeding.^[22]
51. [51]
    Mr Willis alleges that he was bullied, railroaded, tricked and spoken to rudely in the first instance hearing.
52. [52]
    In deciding this appeal, the Appeal Tribunal has had reference to the written transcript of the hearing, and also, at the request of Mr Willis, listened to the audio recording of the same appreciating that, as Mr Willis submits, volume and intonation give context to and can in some cases change the meaning of spoken words, but are not evident from a written transcript.
53. [53]
    There is no support for Mr Willis’ allegation that he was denied procedural fairness during the hearing.
54. [54]
    At no point was Mr Willis bullied or encouraged to withdraw Q12677-24, or to proceed with any of the applications against his objections. He advised the Tribunal that his adjournment request related to the rent ledger dispute not the termination, did not object to the remaining two applications proceeding and was given ample opportunity to present his case and to respond to Ms Paterson’s submissions. 
55. [55]
    To the contrary, the learned Adjudicator was patient and calm in the face of constant interruptions, impolite jibes,^[23] and irrelevant submissions by Mr Willis.
56. [56]
    The learned Adjudicator did not raise his voice, and painstakingly explained and reexplained the hearing process, having opened the hearing by clarifying the applications before him and the evidence relied upon by both parties and returning to that explanation on several occasions during the hearing.
57. [57]
    There is no merit, whatsoever, in this ground of appeal.

Outcome

58. [58]
    Leave to appeal is granted, and the appeal is allowed but with respect to the termination decision contained within order 1 of the decision made 17 March 2025 only. On appeal, order 1 of the decision made 17 March 2025 is set aside.
59. [59]
    With respect to orders 2 to 5 of the decision made 17 March 2025 (the warrant orders), the appeal is dismissed, and the warrant reissued to give effect to those orders.