Chai Bricks 2 Pty Ltd v Averill

Case [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:

ORIGINATING APPLICATION NO:  

APL157-25

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 Act2009 (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]

    [1]           Transcript of hearing 7 April 2025 (‘T’) page 3 line 1.

    [2]           Applications about breach of agreements.

    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]

    [3]           T page 3 lines 44 ff.

    [4]           T page 20 line 37.

    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.

    [5]           T page 22 line 1.

  6. Chai admits its default, but asserts that compensation should be limited to $500, calculated as $50 per week for 10 weeks.[6]

    [6]           T page 21 line 39; Chai’s submissions filed 22 June 2025 paragraph 3.

    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…

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Details
AGLC
Chai Bricks 2 Pty Ltd v Averill [2025] QCATA 79
Case
[2025] QCATA 79
Decision Date

CaseChat Overview and Summary

Chai Bricks 2 Pty Ltd appealed against a decision of the Queensland Civil and Administrative Tribunal (QCAT), which awarded compensation to Averill for the landlord’s breach of a residential tenancy agreement. The Tribunal had found that the landlord had breached the agreement by failing to maintain the roof, resulting in leakage that restricted the tenant’s use and enjoyment of the premises. The landlord argued that the compensation should be limited to $500, based on the landlord's estimate that only 5% of the premises was unusable. However, the adjudicator preferred the tenant’s evidence, finding that the leakage affected more than the landlord's estimate, and awarded compensation accordingly.

The court was required to determine whether the Tribunal had erred in its findings of fact, and if the application for leave to appeal should be granted. Appeals from a primary tribunal’s findings of fact are generally not successful unless there is a glaring improbability in the evidence, and the principle of finality is paramount in such cases. The court noted that the application for leave to appeal was not a retrial of the merits, but a review for reasonably arguable errors of law. The court found no such error in this case, as it was within the adjudicator's role to prefer one version of the evidence over another.

The court held that the application for leave to appeal was unlikely to succeed, as it did not present a reasonably arguable error of law. The court emphasized that it was not the function of the appellate tribunal to substitute its own view for reasonable findings of the primary tribunal. Consequently, the court dismissed the application for leave to appeal.

ORDERS:
The application for leave to appeal is dismissed.

Orders

Orders of the court

The application for leave to appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Chai admits its default, but asserts that compensation should be limited to $500, calculated as $50 per week for 10 weeks.[6] [6] T page 21 line 39; Chai’s submissions filed 22 June 2025 paragraph 3.The evidence 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.[7] T page 19 line 30.[8] T page 19 line 47; page 21 line 33.[9] T page 21 line 45.Appealing findings of fact 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.[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. Chai itself concedes: ‘We’re appealing due to there’s a question of fact’.[13][13] ‘Supporting document for APL 157-25’ filed 22 June 2025.Leave application not a retrial 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.[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.Conclusion

Decision

Reasons for decision

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.[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.Conclusion 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.

Ratio Decidendi

Legal Principle Established

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