Cairns Residential Property Management Pty Ltd v Miller [2026] QCATA 43

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cairns Residential Property Management Pty Ltd v Miller [2026] QCATA 43 PARTIES: CAIRNS RESIDENTIAL PROPERTY MANAGEMENT PTY LTD (applicant/appellant) v LYNETTE MILLER (respondent) APPLICATION NO/S: APL081-24 ORIGINATING APPLICATION NO/S: MCDT19/24 (Cairns) MATTER TYPE: Appeals DELIVERED ON: 28 April 2026 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judicial Member Rinaudo AM ORDERS: IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT: Leave to appeal is allowed. The decision made 19 February 2024 in Cairns proceeding MCDT19/24 is set aside and substituted with a decision that the application for minor civil dispute – residential tenancy dispute filed 12 January 2024 is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – where appellant was property manager of respondent’s lease – where respondent sought orders that appellant lodge bond with Residential Tenancies Authority – where Tribunal ordered appellant lodge bond with Residential Tenancies Authority – where appellant submits Tribunal made error of fact – whether leave to appeal should be granted – whether appeal should be allowed Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 25, s 26, s 142, s 147 -- 1 of 5 -- 2 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 116 Allen v Queensland Building and Construction Commission [2023] QCATA 66 Cachia v Grech [2009] NSWCA 232 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 Pickering v McArthur [2005] QCA 294 Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION Background [1] This is an application to appeal a decision made on 19 February 2024 in a minor civil – residential tenancy dispute. [2] Ms Lynette Miller (‘respondent’) commenced her tenancy at 3/2 Moody Street, Manoora (‘property’) on 28 May 2021. Cairns Residential Property Management Pty Ltd (‘appellant’) took over lease management of the property from Cairns Tropical Properties on 18 November 2021. [3] On 12 January 2024, the respondent lodged a claim in the Tribunal, requesting that her bond be lodged with the Residential Tenancies Authority (‘RTA’). [4] The matter came before a Magistrate siting as a Tribunal Member in Cairns Magistrates Court on 19 February 2024. On 19 February 2024, the learned Magistrate ordered that the appellant lodge the respondent’s bond with the RTA by close of business on 23 February 2024, and that a transcript of the proceedings be ordered for the Court file. [5] The appellant lodged an application for leave to appeal or appeal on 21 March 2024. The appellant seeks leave to appeal the Tribunal’s decision due to an alleged error of fact. [6] The appellant submits that they never received a bond payment from the respondent and that therefore they cannot comply with the Tribunal’s order. [7] The appellant submitted, as an attachment to their appeal application, a tenant payment history record noting payments made between 21 May 2021 to 14 March 2024. That payment history record noted the bond of $1,400 had been paid to Cairns Tropical Properties, though there was no record of a bond reference number. [8] The appellant seeks leave to appeal the decision of the Tribunal and have the decision overturned, and to have the transcript of the Tribunal hearing removed from the Court file. -- 2 of 5 -- 3 Appeals in the Appeal Tribunal [9] The jurisdiction to hear appeals is conferred upon the Tribunal pursuant to s 25 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). Section 25 states as follows: The Tribunal’s appeal jurisdiction is— (a) the jurisdiction conferred on the Tribunal by section 26; and (b) the jurisdiction conferred on the Tribunal by an enabling Act to hear and decide an appeal against a decision of another entity under that Act. [10] Section 26 of the QCAT Act states that: The Tribunal has jurisdiction to hear and decide an appeal against a decision of the Tribunal in the circumstances mentioned in section 142. [11] The appellant appeals pursuant to s 142 of the QCAT Act. Subsection 142(1) states as follows: A party to a proceeding may appeal to the Appeal Tribunal against a decision of the Tribunal in the proceeding if a judicial member did not constitute the Tribunal in the proceeding. [12] Leave is required if the appeal involves a question of fact or mixed law and fact.1 The principles to be applied in considering whether leave to appeal should be granted are as follows: (a) Is there a reasonably arguable case of error in the primary decision?2 (b) Is there a reasonable prospect that the appellant will obtain substantive relief?3 (c) Is leave necessary to correct a substantial injustice to the appellant caused by some error?4 (d) Is there a question of general importance upon which further argument, and a decision of the Appellate Court or Tribunal, would be to the public advantage?5 [13] An appeal on a question of fact or mixed law and fact must be conducted by way of rehearing.6 The Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and remit the matter to the Tribunal for reconsideration.7 [14] In Allen v Queensland Building and Construction Commission [2023] QCATA 66 at [2], Judicial Member McGill SC summarised the approach to leave in the Appeal Tribunal: An Appeal Tribunal would not usually disturb findings of fact on appeal if the evidence is capable of supporting the finding, and it is not contrary to compelling 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(b) (‘QCAT Act’). 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232, [13]. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 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, 578. 6 QCAT Act s 147(2). 7 Ibid s 147(3). -- 3 of 5 -- 4 inferences. If leave to appeal is granted, the appeal is by way of rehearing so far as it is against a decision on a question of fact, or of mixed fact and law: the QCAT Act s 147. Otherwise it is an appeal which will only correct an error of law: the QCAT Act s 146. [15] Leave to appeal will usually only be granted where it is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there was an error to be corrected.8 In this case, leave to appeal is required as the matter concerns a minor civil dispute proceeding.9 Submissions [16] The tenant payment history record confirms that a bond of $1,400.00 had been paid by the respondent. The core issue appears to be that there is no bond reference, which may explain why the appellant has had difficulty obtaining the bond payment and registering the bond with the RTA. Nevertheless, the evidence submitted by the appellant seems contradictory to their application for leave to appeal and the respondent appears to have in fact paid the bond. [17] In submissions made 16 April 2024, the appellant stated it had attempted to track down the bond money, and had discovered from a former tenant that the bond had been paid directly to the property owner. The property owner had since located the bond and had ‘organised to lodge the money with the RTA’. Consideration [18] In submission to the Tribunal, the appellant advised as follows: I approached Mr Paul Stephens in regard to the information provided to me by Ms Ruby Escholtz and he then organised a meeting with his bank as his personal records did not go back as far as May 2021. Mr Paul Stephens has since located the bond paid on this premises in his bank account and has organised to lodge the money with the RTA. [19] On 27 February 2026 the Tribunal emailed the respondent seeking advice as to whether she had been notified of the monies being paid to the RTA. No response was received. In a follow-up email sent 17 April 2026 the Tribunal requested an update and advised that if no answer was received by 24 April 2026 the Tribunal would assume the bond had in fact been lodged with the RTA and would decide the appeal accordingly. Again, no response was received. The Appeal Tribunal now makes its decision assuming the bond is with the RTA. [20] The crux of the issue remains that irrespective of any error of fact by the learned Magistrate in the proceeding below, the respondent brought the original application against the wrong party. As the appellant never received the bond nor its reference, they did not possess the ability to register the bond with the RTA. Under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), either the tenant, property owner or manager can register a bond with the RTA. However, once the tenant pays the bond to the property owner or manager, the person who received the bond becomes responsible for lodging it and must do so within 10 days of payment.10 Even if a new 8 Pickering v McArthur [2005] QCA 294, [3] (‘Pickering’). 9 QCAT Act s 142(3)(a)(i). 10 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 116. -- 4 of 5 -- 5 property manager assumes management of the lease, the person who received the bond remains responsible for lodging it with the RTA.11 [21] Hence, in order to enforce registration of the bond, the original application should have been brought against the property owner, as that is the party with the ability and obligation to register the bond with the RTA. [22] The appellant submits that because their company did not receive the bond payment, they are unable to comply with the learned Magistrate’s order and register the bond with the RTA. However, from the evidence tendered in the respondent’s original submissions and the appellant’s appeal submissions, the fact appears to be that the respondent has paid the bond, albeit to Cairns Tropical Properties. This fact was available to the learned Magistrate when she made her decision. [23] Usually, the Appeal Tribunal will not readily interfere with findings of fact of the Tribunal at first instance, unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.12 [24] However, whether the learned Magistrate erred in fact is immaterial. By this appeal, either the original decision can be set aside and replaced with a decision that the residential tenancy application is dismissed (as the wrong respondent is named), or this appeal can be dismissed, in which case the original decision will stand – against the wrong respondent. The latter course is unjust as the Tribunal is aware the respondent is the wrong party.13 Accordingly, the decision below must be set aside and substituted with a decision that the original application is dismissed. Orders Leave to appeal is allowed. The decision made 19 February 2024 in Cairns proceeding MCDT19/24 is set aside and substituted with a decision that the application for minor civil dispute – residential tenancy dispute filed 12 January 2024 is dismissed. 11 Ibid. 12 Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22, [43]. 13 Pickering [3]. -- 5 of 5 --