Chai Bricks 2 Pty Ltd v Averill & Anor
[2025] QCATA 79
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- Chai Bricks 2 Pty Ltd v Averill & Anor[2025] QCATA 79
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Chai Bricks 2 Pty Ltd v Averill & Anor[2025] QCATA 79
Chai Bricks 2 Pty Ltd v Averill & Anor[2025] QCATA 79
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION | Chai Bricks 2 Pty Ltd v Averill & Anor [2025] QCATA 79 |
PARTIES: | chai bricks 2 pty lTD (applicant) v CLARE AVERILL (respondent) PAUL FORBES (respondent) |
APPLICATION NO: | APL157-25 |
ORIGINATING APPLICATION NO: | MCD Q12780-24 |
MATTER TYPE: | Residential tenancy matters |
DELIVERED ON: | 26 August 2025 |
HEARING DATE: | 6 August 2025 |
HEARD AT: | Brisbane |
DECISION OF: | Dr J R Forbes |
ORDERS: | The application for leave to appeal is dismissed. |
CATCHWORDS: | RESIDENTIAL TENANCY DISPUTE – where award of compensation for landlord’s breach of agreement – where roof leakage restricted tenant’s use and enjoyment of premises – where application for leave to appeal – where tribunal’s decision turns on findings of fact – where difficulty of appealing such a case explained – where principle of finality applies – where limitations of leave to appeal application indicated – where application for such leave dismissed |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
Introduction
- [1]On 19 September 2023 the applicant Chai Bricks 2 Pty Ltd (‘Chai’), entered a residential tenancy agreement with the respondents Clare Averill and Paul Forbes (‘Averill’) over premises at Ison Street Morningside, Brisbane (‘the premises’).
- [2]Averill vacated the premises on 26 August 2024.
Original ground of claim adjusted
- [3]On 12 December 2024 these proceedings began as a claim for a decrease of rent amounting to $7,500, pursuant to section 94 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘the Act’), but in view of the fact that section 94 requires action to be commenced while the lease is current, the adjudicator reframed the case[1] as a claim for compensation under section 419 of the Act.[2]
Reasons for claim
- [4]The breach of the agreement, as found, was a failure to remedy the leaking of rain water into the garage attached to the premises. Averill had repeatedly complained to Chai’s agent that the leak forced her to park her car on the street instead of the garage and to remove goods stored therein.[3] As the adjudicator found this defect ‘plagued the property from the very beginning’.[4]
Claim upheld
- [5]Averill claimed that an appropriate deduction from the rent was $120 per week for a total of 49 weeks. That claim was upheld,[5] resulting in an award to the tenants of $5,880.
- [6]Chai admits its default, but asserts that compensation should be limited to $500, calculated as $50 per week for 10 weeks.[6]
The evidence
- [7]That submission depends upon ‘a photo’ of Averill’s car parked in the garage, taken on a routine inspection of the premises,[7] and Chai’s estimate that when the garage was affected by rain, the unusable portion of the premises was no more than 5%.[8] The adjudicator did not overlook this evidence, but held that ‘nothing really turns on that in my view, in relation to my decision’.[9] After all, a photograph records a mere moment in time, and Averill did not claim that access to the garage was restricted at all times during the tenancy. The adjudicator, as judge of fact, clearly preferred the direct evidence and constant observations of Averill to the relatively brief and occasional observations and estimates of Chai, as she was entitled to do.
Appealing findings of fact
- [8]A primary tribunal’s findings of fact, with evidence to support them, and free from any glaring improbability[10] are seldom disturbed on appeal.[11] Finality is an important legal object,[12] particularly in lower courts where an interminable dispute can too easily result in costs out of all proportion to the interests involved. The very purpose of a ‘leave to appeal hurdle’ is to serve the interest of finality.
- [9]Chai itself concedes: ‘We’re appealing due to there’s a question of fact’.[13]
Leave application not a retrial
- [10]Applications for leave to appeal are not occasions for a retrial of the merits, but rather reviews for reasonably arguable errors of law.[14] No such error is apparent here. No error of law occurs simply because the judge prefers one version of evidence to another.[15] Reasonable minds may differ, but that is not a proper ground of appeal.[16] 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.
Conclusion
- [11]I do not discern any argument that would be tenable on appeal, bearing in mind the inherent limitations of an application for leave. The application must be dismissed.
Orders
The application for leave to appeal is dismissed.
Footnotes
[1] Transcript of hearing 7 April 2025 (‘T’) page 3 line 1.
[2] Applications about breach of agreements.
[3] T page 3 lines 44 ff.
[4] T page 20 line 37.
[5] T page 22 line 1.
[6] T page 21 line 39; Chai’s submissions filed 22 June 2025 paragraph 3.
[7] T page 19 line 30.
[8] T page 19 line 47; page 21 line 33.
[9] T page 21 line 45.
[10] Devries v Australian National Railways Commission (1993) 177 CLR 472, 479; Abalos v Australian Postal Commission (1990) 171 CLR 167, 178–179.
[11] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 151; Fox v Percy (2003) 214 CLR 118, 125–126; JM v QFG and KG [1998] QCA 228, 20 (Pincus JA); Devries v Australian National Railways Commission (1993) 177 CLR 472, 479.
[12] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, [4]–[5]; Sali v SPC Limited (1993) 67 ALJR 841, 843–844. Hence the requirement for leave: s 142(3) of QCAT’s constituent Act.
[13] ‘Supporting document for APL 157-25’ filed 22 June 2025.
[14] Snell v Moynihan [2011] QCATA 316, [10]; Thompson & Anor v Jedanhay Pty Ltd [2012] QCATA 246, [28].
[15] Fox v Percy (2003) 214 CLR 118.
[16] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [131]; In Re W (an infant) [1971] AC 682, 700.