Park v Saechun - [2025] QCATA 118

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Park v Saechun [2025] QCATA 118

PARTIES:

SONG TAE PARK

(applicant/appellant)

v

MANEE SAECHUN

(RESPONDENT)

APPLICATION NO/S:

APL159-24

ORIGINATING APPLICATION NO/S:

MCDO105-24

MATTER TYPE:

Appeals

DELIVERED ON:

11 November 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

1.     Leave to appeal is granted.

2.     The appeal is allowed.

3.     Order 1 of the decision of the Tribunal dated 9 May 2024

(a)     That the applicant pay the respondent $16,479.50 is set aside, and instead it is ordered that;

(b)     The applicant must pay the respondent the sum of $4,129.50.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – RESIDENTIAL TENANCY– RESTITUTION AND UNJUST ENRICHMENT – UNLAWFUL USE OF PREMISES – PERFORMANCE – BREACH – ASSESSMENT OF DAMAGES – where applicant let the lower level of a two storey house to the respondent – where parties entered into a residential tenancy agreement – where applicant permitted the respondent to build a separate room in the lower level of the tenancy to conduct a massage business – where letting of the lower level for occupancy not permitted by the building classification – where legal impediment to occupancy – where tenancy agreement frustrated – where applicant terminated the tenancy agreement – where applicant ordered to refund all rent, cost of building the new room and bond – whether payment of rent unjust enrichment in the hands of the tenant – whether error of law – whether findings of fact open on the evidence

Building Act1975 (Qld), s 114

Queensland Civil and Administrative Tribunal Act2009 (Qld), s 142(3)(a)(i)

Residential Tenancies and Rooming Accommodation Act2008 (Qld), s 181

Allen v Queensland Building and Construction Commission [2023] QCATA 66

Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498
Mann v Paterson Constructions Pty Ltd [2019] HCA 32
Robinson Helicopter Company Inc v McDermott [2016] HCA 22

Terera & Anor v Clifford [2017] QCA 181

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 appeal arises from a tenancy dispute between the applicant as the lessor’s agent[1] of rental premises at Southport, and the respondent tenant. On 16 July 2023 the applicant and the respondent entered into a General Tenancy Agreement for the tenant to occupy the lower level (downstairs) of a two storey house from 22 July 2023 for 12 months. The initial rental was supposed to be $500/wk, but was increased to $650/wk when the applicant agreed that the tenant could conduct a massage business from the rental premises.
[1]The actual owner of the property was the applicant’s son.
To facilitate the running of the massage business the tenant, with the permission of the applicant, carried out structural improvements by building a separate room for massage treatment in the lower level. This also included plastering and painting of…

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.

Continue reading Park v Saechun

Details

AGLC: Park v Saechun [2025] QCATA 118
Case: [2025] QCATA 118
Decision Date: 11 November 2025

CaseChat Overview and Summary

In Park v Saechun, the parties were involved in a dispute regarding a residential tenancy agreement for the lower level of a two-storey house. The applicant, Park, permitted the respondent, Saechun, to build a separate room for conducting a massage business despite the building classification prohibiting such occupancy. The respondent was ordered to refund all rent, the cost of the new room, painting costs, and the bond to Park. The respondent appealed the decision, arguing there was an error of law in the refund order and that the payment of rent did not constitute unjust enrichment.

The legal issues before the court were whether the refund of rent constituted unjust enrichment, if there was an error of law in the original order, and if the findings of fact were open to challenge. The court held that the legal impediment provided the respondent with the right to terminate the tenancy agreement but did not entitle her to a refund of rent paid. The court found that the order for the refund of rent was an error of law and that the respondent was entitled to the bond held by the Residential Tenancy Authority.

The court granted leave to appeal and allowed the appeal, setting aside the original order for the refund of $16,479.50. Instead, the court ordered the applicant to pay the respondent $4,129.50, which includes the extra two weeks rent paid, cost of the new room, painting costs, and the bond. The court clarified that the applicant’s only entitlement was $4,129.50, and if any excess amount had been paid, it would be up to the applicant to recover it from the respondent. The final orders included granting leave to appeal, allowing the appeal, and setting aside the original order, with a new order for the applicant to pay the respondent $4,129.50.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is allowed.

3. Order 1 of the decision of the Tribunal dated 9 May 2024

(a) That the applicant pay the respondent $16,479.50 is set aside, and instead it is ordered that;

(b) The applicant must pay the respondent the sum of $4,129.50.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As for the bond, given that the application of s 181 of the RTRA, clearly the respondent was entitled to the bond held by the Residential Tenancy Authority.Conclusion Although the applicant has not demonstrated a basis of a grant of leave to appeal by reference to the grounds of appeal, leave must be granted because of the error of law in ordering that the respondent be refunded all of the rent paid during her occupation of the premises. She remains entitled to the extra two weeks rent paid, $1,300.00; cost of the new room, $1,800.00; painting, $650.00 and the refund of the bond. As the bond has been paid out to the respondent I do not propose to vary order 2. The legal impediment gave the respondent a right to elect to terminate the tenancy agreement but did not entitle the respondent to claim for a refund of rent paid. I propose to set aside the order of the Tribunal that the applicant pay the respondent $16,479.50. Instead I propose to order the applicant pay the respondent the amount claimed, less the rent of $12,350. To be clear the applicant’s only entitlement pursuant to her claim is $4,129.50 which includes the filing fee of $379.50. I do not know if money has been paid by the applicant, if it has it will be up the applicant to recover any money paid to the respondent in excess of $4,129.50. I therefor propose to grant leave to appeal, allow the appeal and set aside the order of the adjudicator and make the following order:(a)That paragraph 1 of the order of the Tribunal dated 9 May 2024 is set aside.(b)The applicant pay the respondent the sum of $4,129.50.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.