Sampson v Leite
[2025] QCATA 98
•27 October 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Sampson & Anor v Leite [2025] QCATA 98
PARTIES:
ANDREW SAMPSON (applicant)
ARIA LIVING PTY LTD
(applicant)
v
ANNA RACHEL LEITE (respondent)
APPLICATION NO/S:
APL037-25
ORIGINATING APPLICATION NO/S:
Q5215-24
MATTER TYPE:
Residential tenancy matters
DELIVERED ON:
27 October 2025
HEARING DATE:
Heard and determined on the papers
HEARD AT:
Brisbane
DECISION OF:
Member McLean-Williams
ORDERS:
The Application for leave to appeal is refused.
CATCHWORDS:
APPEAL – GENERAL PRINCIPLES – leave to appeal – minor civil dispute – residential tenancy dispute – circumstances wherein tenant issued Notice to remedy breach for helicopter noise, and no action taken by agent, resulting in tenant issuing Notice to leave – validity of Notice to leave upheld by Adjudicator – questions on appeal regarding the validity of the Notice to leave in these circumstances – whether legal error discernible – where leave to appeal refused
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i)
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 183, s 185, s 277, s 420
Abalos v Australian Postal Commission (1990) 171 CLR 167
Cachia v Grech [2009] NSWCA 232
Chai Bricks 2 Pty Ltd v Averill & Anor [2025] QCATA 79
Devries v Australian National Railways Commission (1993) 177 CLR 472
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Saxer v Hume [2022] QCATA 25Smart State Vehicle Rental Pty Ltd v Tri Asset Protection Systems Pty Ltd [2013] QCATA 16
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
By an Application for leave to appeal or appeal filed on 31 January 2025 (‘the Appeal Application’), the Applicants seek leave to appeal, and to appeal, a decision of Adjudicator Murphy made on 4 December 2024 in relation to a residential tenancy dispute.
The Applicants had sought orders from Adjudicator Murphy requiring the Respondent tenant to pay them $3,055.72 as rent arrears, together with $302.50 for cleaning, and a further amount of $759 as a ‘break lease’ fee. However, the effect of the orders made by Adjudicator Murphy on 4 December 2024 was to dismiss the Applicants claim for rental arrears and for payment of the break lease fee, and to allow only the $302.50 claim for cleaning costs.
Also on 31 January 2025, the Applicants commenced a related Application, seeking an extension of time for the filing of the Application for leave to appeal or appeal (‘the extension of time application’).
The learned Adjudicator’s decision was made orally on 4 December 2024, and on 5 December 2024 the Applicants had requested a transcript of those oral reasons, which was provided to them on 7 January 2025. Pursuant to s 143(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), an application for the Appeal Tribunal’s leave to appeal must be filed in the registry ‘within 28 days after the relevant day’. Where (as here) a person requests written reasons of the decision s 143(5)(c) provides that the ‘relevant day’ becomes the ‘day the person is given written reasons for the decision being appealed against’; thus meaning that it was always permissible for the Applicants to file an Application for leave to appeal or appeal within 28 days after 7 January 2025. As the Appeal Application was received by the Tribunal on 31 January 2025 it was filed within time, thus making an extension of time application unnecessary.
Leave to appeal is required
Although an extension of time within which to file the appeal application was unnecessary, leave obtained from the Appeal Tribunal to bring the appeal is however required, because of s 142(3)(a)(i) of the QCAT Act.
Leave to appeal is not automatic, and nor will it be easily granted. In accordance with longstanding principles, findings of fact made at first instance with evidence to support them and free from glaring improbability[1] will seldom be disturbed on appeal.[2] In Saxer v Hume,[3] Judicial Member D J McGill SC observed:
….As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29.
[1]Devries v Australian National Railways Commission (1993) 177 CLR 472, 479; Abalos v Australian Postal Commission (1990) 171 CLR 167, 178–9.
[2]Chai Bricks 2 Pty Ltd v Averill & Anor [2025] QCATA 79, [8] (Dr J R Forbes), citing Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 151; Fox v Percy (2003) 214 CLR 118, 125–6; JM v QFG and GK [1998] QCA 228, 20 (Pincus JA); Devries v Australian National Railways Commission (1993) 177 CLR 472, 479.
[3][2022] QCATA 25, [2].
In determining whether to grant leave, the Appeal Tribunal must be satisfied that:
(a)There is a reasonably arguable case of error in the primary decision;[4]
(b)There is a reasonable prospect that the Appellant will obtain substantive relief;[5] and
(c)Leave is needed to correct a substantial injustice caused by some error;[6] or
(d)There is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[7]
[4]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]Cachia v Grech [2009] NSWCA 232, [2].
[6]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[7]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 580.
The grounds of appeal
The matter determined by Adjudicator Murphy on 4 December 2024 involved a residential apartment located near the Mater Hospital, and complaints by the tenant about helicopter noise from the hospital helipad disrupting her quiet enjoyment of the premises, resulting in her issuing a Notice to Remedy Breach (RTA form 11) on 13 May 2024; and subsequently, on 20 May 2024, a Notice of Intention to Leave (RTA form 13). The learned Adjudicator accepted the validity of the form 13 and refused the Applicants’ claim for rent beyond 27 May 2024, allowing only the claim for a cleaning fee of $302.50.[8]
[8]Hearing Transcript (4 December 2024) pp. 1–2, line 22.
The Applicants now express their grounds of appeal in the following terms:
Error in Law – Acceptance of Notice to Remedy Breach
The adjudicator wrongly accepted the Notice to Remedy Breach (13/05/2024) for helicopter noise, which is beyond the landlord’s control and not a breach of the RTRA Act.
Error in Fact – Acceptance of Notice of Intention to Leave
The adjudicator incorrectly accepted the Notice of Intention to Leave (27/05/2024) based on an unremedied breach. Helicopter noise was not a valid breach, nor was the landlord at fault.
Failure to Consider Lease Obligations & Compensation
The adjudicator failed to recognise that the tenant had a fixed-term lease until 21/02/2025 and improperly classified the termination. The tenant should be liable for $3,814.72 in compensation for loss of rent and reletting costs.
Decision Contrary to Law & Evidence
The 04/12/2024 decision ignored evidence that the tenant was not entitled to terminate the lease due to an unremedied breach, resulting in financial loss to the landlord.
Grounds of Appeal Elaborated
Subsequently, in submissions filed before the Appeal Tribunal by the Applicants on 12 September 2025, the Applicants submit that:
(a)Although s 183(1) and (2) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRA Act’) require that a lessor take reasonable steps to ensure the tenant has quiet enjoyment of the premises and not interfere with the reasonable peace, comfort and privacy of a tenant in using the premises, the fact of noise emanating from a nearby hospital helipad is not an act or omission of the lessor capable of any remedy or a matter affording any basis for a tenant to issue a Notice to Remedy Lessor’s Breach under s 301 of the RTRA Act. Consequently, the Applicants submit that the learned Adjudicator also fell into error for accepting the tenants Notice of Intention to Leave dated 27 May 2024.
(b)The learned Adjudicator fell into error for having failed to consider the tenant’s fixed-term obligations, claiming that s 277 of the RTRA Act provides that such agreements may only end in specific ways, including that a written agreement has been made to end it as between landlord and tenant (s 277(2)) or if a Tribunal makes an order terminating the agreement (s 277(5)(a)).
(c)During the hearing below, the Respondent tenant had raised mental health concerns as a reason for vacating, yet these do not form specific grounds for early termination, as set out in the RTRA Act in ss 302, 305 or 308–310.
(d)The learned Adjudicator fell into error for having not made an order for compensation in the sum of $3,814.72 to the Applicants under s 420(1)(e) of the RTRA Act.
Respondent’s Contentions
In submissions received by the Appeal Tribunal on 6 October 2025 the Respondent submits (here paraphrasing):
(a)The Lessor’s duty to ensure the Tenant’s quiet enjoyment extends beyond refraining from deliberate interference, and also requires that a landlord investigate any conditions within their control that substantially interfere with a tenant’s peace and comfort.
(b)When the Respondent complained in March 2024 about severe noise and vibration from helicopters landing at the hospital, the building manager refused to inspect the apartment and investigate whether triple-glazing fitted in other apartments in the complex was either missing, or defective, in this apartment.
(c)Section 185 of the RTRA Act requires the lessor to ensure that the premises are fit for habitation, and that the premises remain in good repair. Therefore, the Applicants’ failure to inspect the apartment, in light of the Respondent’s complaint about noise, is a breach of s 185.
(d)Failure by the Applicants to respond to the form 11 Notice to Remedy Breach meant that the Respondent was thereafter entitled to issue a Form 13 Notice of Intention to Leave. The learned Adjudicator had found that the Form 13 was valid.
(e)The Applicants’ arguments in relation to the effect of s 277 of the RTRA Act are not to the point, because one of the ways in which a residential tenancy agreement may be brought to an end is by way of an order of the Tribunal. Here, the learned Adjudicator had found that the Notice of Intention to Leave had been validly issued, and terminated the agreement.
(f)The learned Adjudicator having considered the impact of helicopter noise on the mental health of the Respondent was relevant to an assessment of habitability for purposes of s 185 of the RTRA Act, and does not amount to an error of law.
(g)The Applicants’ claims for unpaid rent and re-letting costs overlook that the power to order compensation (RTRA Act s 420(1)(e)) is discretionary. The learned Adjudicator correctly exercised the discretion not to order compensation, in circumstances in which the Applicants were found to have been in breach of s 183 and s 185 of the RTRA Act.
Appeal Tribunal Consideration
In oral reasons given on 4 December 2024, the learned Adjudicator said:
She [the Respondent] soon found out that the helicopter traffic to the Mater Hospital was such that it was impacting her sleep patterns and her mental health, and she did eventually raise this with the applicant. The applicant did nothing to actually validate her concerns or her complaints about the noise and was instructed by the owner not to do anything in relation to that matter.
…it seems to me that she validly signed a Form 13, which raised an issue which would, in my view, require the owner to look at the issue of the right of a tenant to have peace – a peaceful – occupy the premises in such a way as it wouldn’t be disturbed by that sort of a noise on a regular basis. The lessor could’ve, for instance, have looked at the issue of whether the apartment or the location of the apartment or some further improvements could be done in relation to the complaint made by the respondent. The agents did nothing in that regard at all.
It seems to me that – therefore that the respondent has given a valid form of notice, which means that the claim for rent past 27th of May has to be refused. On the basis of the material placed before me, I find that the applicant is entitled to a cleaning fee of $302.50. So, the orders will be that the RTA is to pay the sum of 302.50 to the applicant, and the remainder to the respondent. Thank you, ladies.[9]
[9]Transcript, 4 December 2024, at pp. 1–2, lines 15–35.
Although the ex tempore reasons given by the learned Adjudicator at the immediate conclusion of the hearing are very brief, these are nonetheless adequate,[10] accepting the very practical strictures imposed on Adjudicators in a busy, high-volume jurisdiction such as minor civil disputes. To this end, in Smart State Vehicle Rental Pty Ltd v Tri Asset Protection Systems Pty Ltd ex-QCAT President Justice Wilson said:
In the Tribunal’s minor civil disputes jurisdiction, giving immediate oral reasons accords with the spirit and purpose of the QCAT Act. The Appeal Tribunal should be slow to criticise oral reasons for decision without acknowledging the circumstances in which they are given, or the pressure of the learned Magistrate’s caseload”.[11]
[10]Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219, [58] (Muir JA).
[11][2013] QCATA 16, [8].
From the reasons excerpted, it is sufficiently clear to the Appeal Tribunal that the learned Adjudicator accepted that the Applicants were dismissive of the Respondent’s Form 11 noise complaint, without any efforts at investigation to ascertain whether any noise attenuation features within the unit were sufficient for purposes of their lawful obligations arising under s 183(1) and s 185(2)(b) and (c) of the RTRA Act. Having ignored the Form 11, it is further clear that the learned Adjudicator determined that the Respondent had grounds to issue the Form 13 Notice of Intention to Leave, and that the form 13 was ‘valid’. The learned Adjudicator was always entitled to form that view. To have done so does not constitute legal error.
The Applicants’ arguments regarding the effect of s 277 of the RTRA are entirely misconceived. Although s 277 of the RTRA Act once had subsections such as s 277(2) and s 277(5)(a) as now relied upon by the Applicants, s 277 of the RTRA Act in that form was repealed by s 21 of the Housing Legislation Amendment Act 2021 (Qld),[12] which received Royal assent as long ago now as 20 October 2021. Since that date, the operative[13] parts of s 277 have provided:
[12]Act No 19 of 2021.
[13]A further ‘Note’ was included in s 277, by means of s 35 of the Residential Tenancies and Rooming Accommodation Act & Other Legislation Amendment Act 2024 (Qld), passed on 6 June 2024. This has not altered the provision in any material way.
277 Ending of residential tenancy agreements
A residential tenancy agreement ends only in 1 of the following ways—
(a) the lessor and tenant agree, in a separate written document, to end the residential tenancy agreement;
(b) the lessor gives the tenant a notice to leave under section 326 and the tenant hands over vacant possession of the premises on or before the handover day for the notice;
(c) the tenant gives the lessor a notice of intention to leave under section 327 and hands over vacant possession of the premises on or before the handover day for the notice;
(d) if there is only 1 tenant for the agreement—
(i)the tenant gives the lessor a notice ending tenancy interest, and hands over vacant possession of the premises, in accordance with division 3, subdivision 2A; or
(ii)the tenant dies;
Note—
See section 324A in relation to the death of a sole tenant.
(e) the tenant vacates, or is removed from, the premises after receiving a notice from a mortgagee or appointed person under section 317;
(f) the tenant abandons the premises and the period for which the tenant has paid rent has ended;
Note—
See division 8 for alternative procedures the lessor needs to follow in relation to abandonment of the premises.
(g) the tribunal makes an order terminating the agreement.
Note—
See division 6 for the making of termination orders by the tribunal.
Again, it is sufficiently clear from the circumstances that, by his having accepted the validity of the Form 13, the learned Adjudicator has accepted the ending of the residential tenancy agreement arose under s 277(c) – by the Respondent tenant giving the lessor a notice of intention to leave under s 327 and handing over vacant possession of the premises on or before the handover day for the notice. Having made that finding, and because the awarding of compensation under s 420(1)(e) is discretionary, the learned Adjudicator was entitled not to award any compensation for loss of rent or to defray any re-letting fee. Had the tenant left the premises early on invalid grounds the outcome may have been different.
In Chai Bricks 2 Pty Ltd v Averill & Anor, Member Dr J R Forbes observed:
Applications for leave to appeal are not occasions for a retrial on the merits, but rather are reviews for reasonably arguable errors of law. No such error is apparent here. No error of law occurs simply because the judge prefers one version of evidence to another. Reasonable minds may differ, but that is not a proper ground of appeal. 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]
[14]Op cit, footnote 2, [11] (citations omitted).
Disposition
In this case there is no reasonably arguable case of legal error in the primary decision. The Applicants do not have any reasonable prospect of obtaining substantive relief if leave to appeal were now to be granted. No substantial injustice caused by some error, or any question of general importance now warranting further argument and a further decision by the Appeal Tribunal for the public benefit can be discerned by the Appeal Tribunal.
The Application for leave to appeal is refused.
0
11
2