Willis v Varghese

Case [2025] QCATA 70

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Willis v Varghese [2025] QCATA 70

PARTIES:
JAMES SYDNEY WILLIS

(applicant/appellant)

v
ALES VARGHESE

(first respondent)

And

ROSAMMA VARGHESE

(second respondents)

APPLICATION NO/S:

APL160-25

ORIGINATING APPLICATION NO/S:

MCDQ2391-25 (Brisbane)

MATTER TYPE:

Appeals

HEARD ON:

16 July 2025

DELIVERED ON:

29 July 2025

HEARD AT:

Brisbane

DECISION OF:

Senior Member Lember

ORDERS:

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

1.     Calyptus Management Pty Ltd is removed as a respondent.

2.     Ales Varghese and Rosamma Varghese are joined as respondents. 

3.     Calyptus Management Pty Ltd is granted leave to represent the respondents in the proceeding.

4.     Leave to rely on additional evidence is refused to both parties.

5.     Leave to appeal is granted.

6.     Appeal allowed, with respect to order 1 made 17 March 2025 in Q2391-25 only.

7.     Order 1 of the decision made 17 March 2025 in Q2391-25 is set aside.

8.  I direct the issue of a warrant of possession authorising a police officer to enter the premises at Room 1, 18 Westringia Court, Logan Reserve, Qld 4133.

9.   The Warrant shall take effect on 1 August 2025 and remain in effect until and including 14 August 2025.

10.  The Warrant is to be executed as soon as reasonably practical after taking effect.

11. Entry under the Warrant shall only be between the hours of 8:00am and 6:00pm.

12. Nothing in this decision prevents the provider from using reasonable force to remove the respondent resident under s 375 of the RTRA Act provided that police officers are present, per s 611 of the Police Powers and Responsibilities Act 2000 (Qld).

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where warrant issued upon termination of a rooming accommodation agreement for failure to leave at the end of a fixed term – where resident alleges denial of procedural fairness in the hearing – whether relevant evidence ignored or irrelevant evidence given weight – where no process for termination where resident fails to leave because provider has right to enter and remove without a tribunal order – whether warrant may issue without termination order for occupying without consent

Police Powers and Responsibilities Act 2000 (Qld) s 611

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 9, s 10 , s 11, s 12, s 13, s 14, s 15, s 16, s 17, s 44, s 246A, s 276A, s 293, s 350, s 366, s 372, s 375, s 415

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 11, s 12, s 143, s 146, Schedule 3

Australian Furniture Relocations Pty Ltd v Eco Builder Pty Ltd [2020] QCATA 106

Cachia v Grech [2009] NSWCA 232
Chandra v Queensland Building and Construction Commission [2014] QCA 335
Colonial Bank of Australasia v Willan (1874) LR 5 PC 417
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Ericson v Queensland Building Services Authority [2013]…

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Details
AGLC
Willis v Varghese [2025] QCATA 70
Case
[2025] QCATA 70
Decision Date

CaseChat Overview and Summary

In the case of Willis v Varghese, the appeal tribunal reviewed a decision related to the termination of a rooming accommodation agreement. The resident, Willis, contested the decision of the lower tribunal which had issued a warrant for his eviction, alleging procedural unfairness and errors in the handling of evidence. The tribunal was required to determine whether the lower tribunal had correctly exercised its jurisdiction and whether it had properly considered the evidence presented. The tribunal found that the lower tribunal had indeed made a jurisdictional error by issuing the warrant without a corresponding termination order, as the provider had the right to enter and remove the resident without a tribunal order. Furthermore, the tribunal concluded that the lower tribunal had given undue weight to irrelevant evidence and ignored relevant evidence. As a result, the tribunal allowed the appeal, set aside the original order, and directed the issuance of a warrant of possession under specified conditions. The tribunal also refused leave to both parties to rely on additional evidence and granted leave to appeal.

Orders

Orders of the court

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

1. Calyptus Management Pty Ltd is removed as a respondent.

2. Ales Varghese and Rosamma Varghese are joined as respondents.

3. Calyptus Management Pty Ltd is granted leave to represent the respondents in the proceeding.

4. Leave to rely on additional evidence is refused to both parties.

5. Leave to appeal is granted.

6. Appeal allowed, with respect to order 1 made 17 March 2025 in Q2391-25 only.

7. Order 1 of the decision made 17 March 2025 in Q2391-25 is set aside.

8. I direct the issue of a warrant of possession authorising a police officer to enter the premises at Room 1, 18 Westringia Court, Logan Reserve, Qld 4133.

9. The Warrant shall take effect on 1 August 2025 and remain in effect until and including 14 August 2025.

10. The Warrant is to be executed as soon as reasonably practical after taking effect.

11. Entry under the Warrant shall only be between the hours of 8:00am and 6:00pm.

12. Nothing in this decision prevents the provider from using reasonable force to remove the respondent resident under s 375 of the RTRA Act provided that police officers are present, per s 611 of the Police Powers and Responsibilities Act 2000 (Qld).

Background

Background to the litigation

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Evidence

Evidence Before The Court

Additionally, as the Appeal Tribunal has observed, “there is a fundamental obligation on any court or tribunal to satisfy itself as to jurisdiction when being asked to quell controversies that come before it”.[8] This means that the Appeal Tribunal itself must be alert to jurisdictional errors, even if the application does not raise jurisdiction as a ground of appeal. In this proceeding, such an error arises. [8]Penfold v Firkin & Balvius [2023] QCATA 11.New evidence Each party appears to have filed new evidence in the proceeding, but neither filed an application for leave to rely on additional evidence despite directions made 16 June 2025 that they do so. The additional evidence tendered by both parties pertains to allegations by each against the other about behaviour which is not relevant to the decision under appeal. Leave to rely on new evidence is refused on that basis. The application came before the Tribunal below as an application for minor civil dispute – residential tenancy dispute. Section 11 of the QCAT Act confers the Tribunal’s jurisdiction over minor civil disputes which by schedule 3 include tenancy matters in relation to which a person may, under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) apply to the tribunal for a decision. The RTRA Act defines the following relevant terms: (a)In s 9, a ‘lessor’ is the person who gives the right to occupy residential premises under a residential tenancy agreement. (b)In s 10, ‘residential premises’ are premises used, or intended to be used, as a place of residence or mainly as a place of residence.(c)In s 11, a ‘residential tenancy’ is the right to occupy residential premises under a residential tenancy agreement. (d)In s 12, a ‘residential tenancy agreement’ is an agreement under which a person gives to someone else a right to occupy residential premises as a residence,[9] whether the right is a right of exclusive occupation[10] and whether partly or wholly written, oral or implied,[11] but an agreement is not a residential tenancy agreement if it is a rooming accommodation agreement.[12] [9]Section 12(1), RTRA Act. [10]Section 12(2), RTRA Act. [11]Section 12(3), RTRA Act.[12]Section 12(4), RTRA Act. (e)In s 13, a ‘tenant’ is the person to whom the right to occupy residential premises under a residential tenancy agreement is given.(f)In s 14, a ‘resident’ is a person who in rental premises, occupies 1 or more rooms as the person’s only or main residence and who is not the provider or a relative of the provider. (g)In s 15, ‘rooming accommodation’ is accommodation occupied or available for occupation by residents, in return for the payment of rent, if each of the residents: (i) has a right to occupy one or more rooms; and (ii) does not have a right to occupy the whole of the premises in which the rooms are situated; and (iii) does not occupy a self-contained unit; and(iv) shares other rooms, or facilities outside of the resident’s room, with one or more of the other residents.(h)The requirements under s 15 are cumulative in that, each must be met for the arrangement to be deemed rooming accommodation. However, s 44 excludes the RTRA Act from applying to rooming accommodation that is provided by a person in a premises if, among other things:(i) the premises are the person’s only or main place of residence; and(ii) not more than three rooms in the premises are occupied, or available for occupation, by residents. (i)In s 16, a ‘rooming accommodation agreement’ is one under which a provider provides rooming accommodation to a resident in rental premises.(j)In s 17, a ‘provider’ is the person who provides rooming accommodation to residents.(k)In schedule 2, ‘rental premises’ means the premises in which rooming accommodation is provided.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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