Guirao v Ray White Townsville - [2025] QCATA 64

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Guirao v Ray White Townsville [2025] QCATA 64

PARTIES:

ALYSSA GUIRAO

(applicant/appellant)

v

RAY WHITE TOWNSVILLE

(respondent)

APPLICATION NO:

APL084-23

ORIGINATING APPLICATION NO:

MCDT20/23

MATTER TYPE:

Appeals

DELIVERED ON:

11 July 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member JR McNamara

ORDERS:

1. Leave to appeal is refused.

2. The appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – leave to appeal – where tenant was invoiced a call-out fee for an electrician –where tenant disputes obligation to pay the invoice – where tenant claims that the respondent has acted in a retaliatory nature – where the original decision was claim not proven – where applicant seeks leave to appeal and appeal

Queensland Civil and Administrative Tribunal Act 2009 s 3, s 4, s 26, s 27, s 28, s 142, s 147

Residential Tenancies and Rooming Accommodation Act 2008 s 54, s 163, s 164, s 185, s 217, s 246A, s 416

Residential Tenancies and Rooming Accommodation Regulation 2009 Part 2, div 1, reg 6

Du Preez v Linda’s Homes Pty Ltd [2010] QCATA 2, cited

Lane & Mares v Niedzel Pty Ltd t/as Across Country Real Estate and Livestock [2023] QCATA 115, cited

Pickering v McArthur [2005] QCA 294, cited

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

This matter concerns an application for leave to appeal and appeal filed on 21 March 2023.
The applicant, Ms Guirao, signed a general tenancy agreement with Explore Rentals One Pty Ltd on 1 February 2022. The agreement was renewed on 21 April 2022, for a further 12-month lease. The respondent, trading as Ray White Townsville, acts as the property manager for the subject property, 2/13 Shelton Street, Kirwan.
On or about 2 January 2022, Ms Guirao notified her property manager that the air-conditioning unit was tripping the power in the property. On 4 January 2022, the respondent issued a job request to Jackson Electrical to check the air conditioner for faults.
Upon inspection, Jackson Electrical determined that the air-conditioning unit was not tripping the power. In evidence at the hearing Ms Guirao was asked if the power had tripped out since, and she answered “no”.
Special Term 2 in the tenancy agreement states the following:
“Should a repair or maintenance item be found to be tenant related/fault/unnecessary call out e.g. Not a faulty product or no issue found by tradesperson, the tenant may be responsible for the payment of the invoice within 30 days.”[1]
[1]Application for leave to appeal or appeal - Attached Notice of Facts in Appeal, 21.
This special term gives the lessor discretion as to whether the tenant is responsible for the payment of the invoice.
On 1 February 2022, the property manager emailed Ms Guirao an invoice for the electrical inspection…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] QCATA 64
Decision Date: 11 July 2025

CaseChat Overview and Summary

In the case of Guirao v Ray White Townsville, the applicant, Ms Guirao, sought leave to appeal and an appeal against a decision of the Queensland Civil and Administrative Tribunal. The original dispute arose from a claim by Ms Guirao that her landlord, Ray White Townsville, had acted in a retaliatory manner by invoicing her for an electrician's call-out fee when no fault was found. The Tribunal had dismissed the claim, finding that the call-out fee was payable under the terms of the tenancy agreement. Ms Guirao argued that the Tribunal had not observed the rules of natural justice and that the respondent had engaged in retaliatory behaviour.

The legal issues in the appeal centred on whether the Tribunal had erred in its application of natural justice and in its interpretation of the tenancy agreement. Ms Guirao contended that she was denied a fair hearing and that the respondent's actions were retaliatory. Ray White Townsville maintained that the Tribunal's decision was correct and that the terms of the tenancy agreement clearly required the tenant to pay the call-out fee when no fault was found.

The Appeal Tribunal found that the Tribunal Member had properly observed the rules of natural justice by allowing both parties to present their cases and by delivering reasons promptly. The Appeal Tribunal also confirmed that the terms of the tenancy agreement were clear and that the tenant was indeed liable for the call-out fee when no fault was found. The Appeal Tribunal held that there was no error of law in the original decision and that the appeal was without merit. Consequently, the appeal was dismissed, and leave to appeal was refused.

In summary, the orders of the Appeal Tribunal were that leave to appeal was refused and that the appeal was dismissed. The original decision of the Queensland Civil and Administrative Tribunal was upheld, and Ms Guirao's claims against Ray White Townsville were rejected.

Orders

Orders of the court

1. Leave to appeal is refused.

2. The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I consider that there was a sound basis for the Tribunal Member’s finding that the act of the respondent adding the call-out fee to the tenant ledger was not retaliatory. Rather, the tenant can be required to pay the call-out fee where the tradesperson determined there was ‘no fault found’. There was no error, and this ground of appeal is not made out by the applicant.Conclusion Ms Guirao refers to section 3 of the QCAT Act and claims that the original decision maker erred by not affording her natural justice. Section 3 refers to the objects of the Tribunal, but the provision most relevant to the assertion made by Ms Guirao is s 28(3): “in conducting a proceeding, the tribunal … must observe the rules of natural justice.”[25] [25]Queensland Civil and Administrative Tribunal Act 2009 s 28(3)(a). The transcript shows that the learned Tribunal Member gave both parties the opportunity to state their case and present evidence to the Tribunal. The Tribunal Member said that he had reviewed the submissions. The matter was dealt with fairly, efficiently and quickly,[26] with the Tribunal Member delivering reasons at the hearing.[26]Ibid ss 3-4. I accept that in most cases, a lessor would be responsible for paying a call-out fee if, for example, the air-conditioning unit was faulty. However, in this case, there was no fault found by the electrical company. As was identified by the original decision maker, Special Term 2 of the tenancy agreement is clear: if there is no fault found by the tradesperson, the tenant may be liable to pay the call-out fee. Nothing persuades the Appeal Tribunal to depart from the Tribunal’s findings. The evidence was capable of supporting the Tribunal’s conclusions, and I have found no error of law with the learned Tribunal Member’s decision. Ms Guirao has not proven that the respondent engaged in retaliatory behaviour and has not made out her claim for $93.50.Orders Leave to appeal is refused. The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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