Bocchetti v Sean Cary Real Estate [2026] QCATA 33

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bocchetti v Sean Cary Real Estate [2026] QCATA 33 PARTIES: VICTORIA BOCCHETTI (applicant/appellant) v SEAN CARY REAL ESTATE (respondent) APPLICATION NO/S: APL262-23 ORIGINATING APPLICATION NO/S: MCDT53/23 (Noosa) MATTER TYPE: Appeals DELIVERED ON: 26 February 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: The application for leave to appeal or appeal is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – residential tenancy dispute – where magistrate issued order terminating lease and to issue warrant of possession – where appellant appeals due to extenuating circumstances – where no grounds of appeal articulated – appeal dismissed Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 142(1), s 146, s 147 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Cachia v Grech [2009] NSWCA 232 Devries v Australian National Railways Commission (1993) 177 CLR 472 Ericson v Queensland Building Services Authority [2013] QCA 391 Fox v Percy (2003) 214 CLR 118 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 JM v QFG and KG [1998] QCA 228 -- 1 of 4 -- 2 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Ramsay v Earl [2025] QCATA 29 Robinson v Corr [2011] QCATA 302 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 appeal of a decision in a residential tenancy dispute. On 26 July 2023 Sean Cary Real Estate (‘Sean Cary’) applied for an order under s 293 of the Residential Tenancies and Rooming Accommodations Act 2008 (Qld) against Ms Bocchetti, to terminate her lease for failure to leave. [2] The application stated Ms Bocchetti was $2,635.71 in arrears, had been given a notice to remedy breach, had not remedied the breach and had been given a notice to leave. [3] Two applications relating to the same tenancy (MCDT 40/23 (Noosa) and MCDT 41/23 (Noosa)) had also been filed by Ms Bocchetti applying for orders under s 201 (entry by lessor or lessor’s agent) and s 297 (application for termination for tenant’s objectionable behaviour). [4] On 7 July 2023 Ms Bocchetti’s applications were dismissed because she failed to serve notices to remedy the alleged breaches on the lessor, a substantive requirement for orders under those sections. [5] The application by Sean Cary (MCDT 53/23 (Noosa)) was heard on 11 August 2023. The learned magistrate ordered the lease be terminated and a warrant of possession be issued. [6] Ms Bocchetti lodged an appeal application on 15 August 2023 seeking to appeal the decisions in MCDT 40/23 and 53/23. (Ms Bocchetti clarified, in response to a direction from the Tribunal, that she only sought an appeal of the decision in MCDT 53/23.) [7] In the application she alleges ‘grounds of appeal under the Evidence Act 1977 (Qld)’, which are not particularised, and that various events outside of her control prevented her from ‘acting’, presumably meaning servicing the necessary notices in her earlier applications, and from attending the hearing on 11 August 2023. [8] In the appeal application she seeks a settlement of $25,000 from the lessor for various harms she alleges she suffered during her tenancy. -- 2 of 4 -- 3 Appeals in the Appeal Tribunal [9] An appeal is not a rehearing and is not an opportunity to tender further evidence in an attempt to further argue the original dispute. It is an application concerning a legal or factual error made by a decision-maker.1 [10] A party to a proceeding may appeal to the Appeal Tribunal against a decision of the Tribunal in the proceeding.2 Leave is required if the appeal involves a question of fact or mixed law and fact.3 The principles to be applied in considering whether leave to appeal should be granted are: (a) Is there a reasonably arguable case of error in the primary decision?4 (b) Is there a reasonable prospect that the applicant will obtain substantive relief?5 (c) Is leave necessary to correct a substantial injustice to the applicant caused by some error?6 (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?7 [11] If leave to appeal is granted, in deciding the appeal on a question of law 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.8 The Appeal Tribunal may set aside the decision and substitute its own decision only if this results in the disposition of the appeal entirely in the appellant’s favour.9 An appeal on a question of fact or mixed law and fact must be conducted by way of rehearing.10 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.11 Consideration [12] An appeal is not a settlement claim. There is no possibility of awarding $25,000 on appeal, except in circumstances where an original application was made claiming that amount, that application was refused, and that order was subsequently overturned on appeal. [13] I have considered all the submissions on both the original tenancy dispute file and the appeal. The matters complained of in the appeal application appear to be totally unrelated to the decision made. No submissions address a ground of appeal. 1 Ramsay v Earl [2025] QCATA 29 [19]. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(1) (‘QCAT Act’). 3 Ibid s 142(3)(b). 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Cachia v Grech [2009] NSWCA 232 [13]. 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, 578, 580. 8 QCAT Act s 146. 9 Ericson v Queensland Building Services Authority [2013] QCA 391. 10 QCAT Act s 147(2). 11 QCAT Act s 147(3). -- 3 of 4 -- 4 [14] It is possible to imply a ground that the learned magistrate failed to afford procedural fairness, in not taking the circumstances complained of by Ms Bocchetti into account. [15] Having reviewed the audio recording of the hearing I am satisfied the learned magistrate conducted himself appropriately. [16] A claim must be supported by particular evidence about the conduct of the learned magistrate. For such a claim to succeed the claimant must provide specific instances of behaviour or circumstances in which a party has been deprived of procedural fairness. It is not sufficient to make a blanket claim of unfairness because a party is dissatisfied with the result of a hearing or has a subjective feeling that justice has not been done.12 It is also not an appellable error to prefer one version of the facts to another or to weigh a party’s submissions with more or less weight than the party thinks it ought to receive. If a factual finding has rational support on the evidence, even if another rational view is available this is not a ground for appeal. A decision cannot be called erroneous simply because one rational explanation has been preferred to another.13 Indeed, to choose between multiple competing rational arguments is an essential part of a Tribunal member’s role. [17] I find it was open to the learned magistrate to order, pursuant to sections 293 and 350 of the Residential Tenancies and Rooming Accommodations Act 2008 (Qld), the termination of the lease and issuing of the warrant of possession. [18] The application for leave to appeal or appeal is dismissed. 12 Robinson v Corr [2011] QCATA 302 [7]. 13 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151; Fox v Percy (2003) 214 CLR 118 at 125-126; JM v QFG and KG [1998] QCA 228 at 20; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. -- 4 of 4 --