Fairclough & Anor v MJV Property Group t/as Harcourts Ignite [2026] QCATA 24

QUEENSLAND CIVIL AND ADMINISTRATIVE APPEAL TRIBUNAL CITATION: Fairclough & Anor v MJV Property Group t/as Harcourts Ignite [2026] QCATA 24 PARTIES: KEVIN FAIRCLOUGH (first applicant) NICOLA FAIRCLOUGH (second applicant) v MJV PROPERTY GROUP PTY LTD T/AS HARCOURTS IGNITE (respondent) APPLICATION NO: APL008-25 MATTER TYPE: Appeal DELIVERED ON: 5 February 2026 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judicial Member Stilgoe OAM ORDER/S: Leave to appeal is refused. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – APPEALS – where tenants purported to end a tenancy agreement by issuing a notice of non-livability to the respondent – where the tribunal below ordered the tenants to pay break lease costs, having found that the tenants had not left on the basis of non-livability – where the tenants submit that the tribunal below erred by not finding a dispute resolution request unlawful, by giving weight to certain evidence and by misinterpreting s 305 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) – whether the appeal tribunal should disturb findings of fact – whether -- 1 of 5 -- 2 leave to appeal should be granted – whether any error made was material or caused substantial injustice to the tenants Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 305 Dearman v Dearman (1908) 7 CLR 549, cited Fox v Percy (2003) 214 CLR 118, cited Harrison & Anor v Meehan [2017] QCA 315, applied Pickering v McArthur [2005] QCA 294, applied APPEARANCES: 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 [1] MJV Property Group trading as Harcourts Ignite sought break lease costs and $1,234.29 in rent arrears from Kevin and Nicola Fairclough, the tenants of a property in Urangan. [2] The Faircloughs claimed compensation for the property failing to meet minimum housing standards and for breach of an agreement that they would vacate the property on a fixed date without penalty. [3] The tribunal below directed that the Faircloughs pay $322.29 as a break lease fee and dismissed each of the parties’ remaining claims. [4] The Faircloughs have appealed that decision. They say that the dispute resolution request was not lawfully issued. They say the tribunal below erred in giving excessive weight to the absence of certain evidence. They say that the tribunal below misinterpreted s 305 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRA Act’). [5] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. [6] “Leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant, and there is a reasonable argument that there is an error to be corrected.”1 1 Pickering v McArthur [2005] QCA 294. -- 2 of 5 -- 3 Did the Tribunal err by not considering whether the dispute resolution request was issued lawfully? [7] As required by the RTRA Act, Harcourts made a dispute resolution request to the Residential and Tenancies Authority. The Authority determined that the dispute was unsuitable for conciliation. [8] The Faircloughs said at the hearing below that Harcourts had lied on the dispute resolution request. They said this invalidated the dispute resolution request and, therefore, the matter should be dismissed for want of jurisdiction. [9] Harcourts’ dispute resolution request stated that the Faircloughs refused to sign an agreement to terminate the lease. The Faircloughs say that this is a lie because, as the file shows, they did sign the agreement. [10] The Faircloughs did not sign the agreement that Harcourts submitted. They were not prepared to pay a break lease fee and deleted two clauses from the agreement. Harcourts was correct in its assertion that the Faircloughs refused to sign the agreement in the form submitted to them. [11] The dispute resolution request correctly records a dispute. As it was entitled to do, the Authority declined to offer conciliation. The tribunal below had jurisdiction to hear the dispute. Did the Tribunal err by giving excessive weight to the absence of certain evidence? [12] The tribunal found that the Faircloughs did not discover bugs in the carpet until after they returned the amended agreement to terminate the lease on 7 March 2024.2 [13] The Faircloughs gave oral evidence that they had encountered pest problems prior to advising Harcourts they wanted to break lease. They told the tribunal that it became obvious around 17 February 2024 that the tenancy had a pest problem. They made the decision to break lease on 27 February 2024, and they told Harcourts of their intention to break lease on 29 February 2024.3 [14] The Faircloughs say that the tribunal should have considered other factors in deciding whether the tenancy was terminated on the basis of non-livability. They say the tribunal should have taken notice of: (a) the fact that they ticked ‘non-livability’ on the notice of intention to leave; (b) the photographs of bites on Ms Fairclough’s back taken on 15 and 16 March 2024 after she fell down the stairs making contact with the carpet which had a ‘bug infestation’; (c) the lack of pest-control treatment at the property; (d) Harcourts’ offer on 4 March 2024 to replace the worn carpets; and 2 Transcript 1-21, line 35-38. 3 Transcript 1-12, lines 1-8. -- 3 of 5 -- 4 (e) the photographs of numerous cans or bottles of insect repellent. [15] The tribunal noted that, even though the parties had been emailing ‘back and forth’ during the relevant period, the Faircloughs made no mention of any pest problem.4 It noted that the Faircloughs had no receipts for the pest bombs5 and no photos of the infestations.6 Harcourts’ email of 4 March 2024 advised that there were quotes to replace the carpet but did not say that they were going to do it. [16] As to the absence of photographs of the bug infestation, the Faircloughs say that: (a) the tribunal introduced evidence of its own volition and acted on that evidence. They say that this is neither fair nor equitable; (b) if the lack of evidence was an issue for Harcourts, it should have been made an issue at the appropriate time; and (c) a reasonable person would concentrate on the person who fell rather than taking photos for possible litigation. [17] More troubling is the Faircloughs’ submission that the tribunal’s finding was a breach of natural justice, relying on the judgment of Sofronoff P in Harrison & Anor v Meehan:7 “… Section 29 of the [QCAT] Act obliges the Tribunal to take all reasonable steps to ensure that each party to a proceeding understands the nature of assertions made in the proceeding and the legal implications of those assertions. None of that permits the Tribunal to assist parties to prove their respective cases or to give advice to parties about how to conduct the proceedings. To do so would necessarily involve unfairness to one of the parties. Notwithstanding the desirability for informality in proceedings before the Tribunal, the need for impartiality remains paramount.” [18] Harrison was a case involving incomplete evidence of a loss suffered. President Sofronoff observed that there was no error in a tribunal’s decision not to give a party damages where there was no evidence to support that finding.8 [19] The same can be said in this case. The tribunal found, as it was entitled, that there was insufficient evidence to support the Faircloughs’ claims. Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, can support its conclusions, and there is evidence capable of supporting any inferences underlining it.9 4 Transcript 1-13, line 42; Transcript 1-13, 46 to Transcript 1-14, 9. 5 Transcript 1-13, lines 4-5. 6 Transcript 1-13, line 12. 7 [2017] QCA 315 [13]. 8 Ibid [35] 9 Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-6. -- 4 of 5 -- 5 [20] There is also nothing in the transcript to suggest that the tribunal assisted Harcourts or acted impartially. Did the Tribunal err by misinterpreting s 305 of the RTRA Act? [21] The Faircloughs say that the tribunal erred in law by misapplying ss 302-306 of the RTRA Act. They say that the Tribunal misapplied these sections when it stated that a tenancy may only end by agreement or by order of the Tribunal. [22] Section 305(1)(a) of the RTRA Act states that a tenant may give a notice of intention to leave the premises to the lessor because the premises have been destroyed, or made completely or partially unfit to live in, other than because of a breach of the agreement. [23] The Faircloughs submit that they were entitled to vacate the property immediately, upon the giving the s 305 notice of non-livability. That is true if, in fact, the premises are non-livable. Harcourts disputed that fact and the tribunal found in its favour. I have already found that the tribunal was entitled to make that finding. [24] As the tribunal found that the premises were liveable, the Faircloughs had no right to immediately vacate. Even if they had that right, the evidence shows they did not, in fact, move out until 29 March 2024. [25] It follows, therefore, that the tribunal did not err in its application of s 305. [26] Even if the Faircloughs had been able to show an error of law, I would not be minded to grant leave to appeal. As Sofronoff P observed in Harrison:10 “Merely to demonstrate that the judgment from which an appeal is sought involves an evident error of law will not, at least in most cases, be sufficient on its own to justify the grant of leave. To demonstrate only that would not even justify success on an appeal. The error must be material and, to warrant the grant of leave to appeal, must give rise to a consequence beyond merely an asserted erroneous outcome. What that might be will vary from case to case.” [27] The error, if any, was not material and the Faircloughs have not demonstrated that they have suffered a substantial injustice. [28] Leave to appeal is refused. 10 Harrison & Anor v Meehan [2017] QCA 315 [28]. -- 5 of 5 --