Burlington Realty Pty Ltd t/as Burlington Property Agents v Farmer & Anor [2026] QCATA 126

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Burlington Realty Pty Ltd t/as Burlington Property Agents v Farmer & Anor [2026] QCATA 126 PARTIES: BURLINGTON REALTY PTY LTD T/AS BURLINGTON PROPERTY AGENTS (applicant/appellant) v JAMES FARMER KEELY THURECHT (respondents) APPLICATION NO/S: APL319-25 ORIGINATING APPLICATION NO/S: Q4757-25 MATTER TYPE: Appeals DELIVERED ON: 21 August 2026 HEARING DATE: On the papers hearing HEARD AT: Brisbane DECISION OF: Member Munasinghe ORDERS: Leave to appeal is refused. The application for leave to appeal or appeal is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHERE APPEAL LIES – ERROR OF LAW – application for a minor civil dispute – tenancy dispute – where applicant sought to overturn the decision of the Tribunal below to award compensation – whether Tribunal below denied the appellant procedural fairness – whether it overlooked relevant considerations – where Appeal Tribunal concluded that the delivery of oral reasons in the busy minor civil disputes jurisdiction should not be held to a impossible counsel of perfection Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 185, s 206, s 420 Caboolture-Morayfield [2022] QCATA 45 Costigan v Marshall [2010] QCA 344 -- 1 of 8 -- 2 Integrity Property Management v Weaver [2021] QCATA 141 Moorjani v Durban Estates Ltd [2016] 1 WLR 2265 Peng v Darley Properties Pty Ltd (t/as L J Hooker Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliff [2013] QCATA 212 Robinson Helicopter Company Incorporated v McDermott (2016) 90 ALJR 679 Smith v Ash [2010] QCA 112 Younan v Queensland Building Services Authority [2011] QCA 1 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 [1] Burlington Realty Pty Ltd (‘appellant’) appeals a decision by the Tribunal below to award the respondents compensation under s 420 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRA’). Background [2] The respondents, James Farmer and Keely Thurecht, were tenants under a tenancy agreement for a property located in Paddington (‘property’). [3] The appellant is a property agent that carried on the business of managing the property for its owner. [4] In February 2024, flooding at the property saturated the carpet in the study which caused it to mould. The owner of the property eventually replaced the carpet, and rectified damaged caused by the first flood, but the tenants were unable to use the study for 22 weeks. [5] On 11 January 2025, the property flooded a second time (2 nd flood) which caused the carpet in the study became saturated again. [6] On 17 January 2025, Mr Farmer notified the appellant that the study was unusable because it had a mouldy smell and was causing him and Ms Thurecht to experience nausea, headaches and brain fog. [7] Later in the day on 17 January 2025, Ms Thurecht sent the appellant an email advising that she and Mr Farmer were experiencing allergy like symptoms caused by exposure to mould. [8] On 18 January 2018, Mr Farmer sent the appellant an email notifying it that: (a) A ‘tremendous’ amount of black mould had built up in the room. (b) He and Ms Thurecht were experiencing sinus issues and skin irritation caused by moisture and mould in study. (c) The tenants had to throw away a lot of personal items that were kept in the study due to mould build up. -- 2 of 8 -- 3 [9] By 28 January 2025, the tenants were fed up with the property owner’s perceived apathy. On that day they sent the appellant a a Form 11 Notice to Remedy Breach. [10] On 30 January 2025, the tenants notified the appellants that they intended to vacate the property on 26 February 2025 and that they were seeking compensation for damage caused to personal items that had been stored in the study. The items were: (a) Large study desk (b) Satchel work bad (c) Large Samsung suitcase (d) Rucksack (e) Dell laptop (stored inside the rucksack bad) (f) 4 personal bath towels [11] It is convenient to describe the above items collectively as the tenants ‘personal items’. Tenants Application to the Tribunal [12] The tenants subsequently filed an application for compensation in the Tribunal. In written submissions they contended: (a) After the 1st flood event, the owner failed to replace the carpet in the study for 22 weeks. (b) After the 2nd flood event, the tenants were unable to use their living room and study for six weeks. (c) The desk, satchel, rucksack and suitcase, were unable to be ‘returned to condition pre flood event #2’. (d) Their laptop sustained water damage and was unusable. (e) During the 1st flood, water floodwater entered the property and damaged “both their property and personal effects1”. (f) The 2nd flood caused the applicants to experience the following health symptoms: (i) Postnasal drip. (ii) Coughing/sneezing. (iii) Red eyes. (iv) Dry throat. (v) Headaches/brain fog. (vi) Chest tightness. 1 My emphasis -- 3 of 8 -- 4 The Hearing [13] The matter proceeded to a hearing on 1 July 2025 before an Adjudicator. The tenants appeared on their own behalf. As provided for under s 206(1)(b) and (3) of the RTRA, Burlington Property Agents (‘Burlington’) stood in place of the property owner as respondent to the tenant’s application. Ellie Loneragan, who was a real estate agent in Burlington’s employ, appeared and advocated for the owner at the final hearing. [14] During the hearing, the Adjudicator asked the tenants whether their personal possessions were destroyed in the first flood or second flood, Mr Farmer replied “well both”. As Mr Farmer began to form a further response, Ms Thurecht interjected “no, it was damaged in the second (flood)”. Mr Farmer then said “Yeah. True. The second. I’ll let Keely talk”.2 [15] When the adjudicator asked the tenants how they arrived at the monetary values for their personal items, they produced a table of comparative items (‘table’). The table contained a description and price of items that were similar to their personal items that were damaged in the flood. The Tribunal received the table into evidence without objection from the respondent. [16] Mr Farmer told the Tribunal that the tenants also lost items that were not included on the table, namely books, educational material, photos (including baby and childhood photos) and shoes. Adjudicators reasons [17] The Learned Adjudicator delivered oral reasons during which he made the following findings: (a) The owner breached its obligation under s 185 of the RTRA to maintain the property in a habitable state. (b) The owner failed to adequately maintain the property after the 1 st flood in 2024. (c) The tenants were not entitled to compensation for losses arising from the first flood because their claim was out of time. (d) The tenants were entitled to a rent rebate or rent compensation for the period that they did not have full use of the property which amounted to full rent for six weeks at $620 totalling $3720. (e) The amount of compensation the tenants were claiming for their personal items was excessive and therefore, accounting for the age of the items and depreciation compensation should be limited to $3000. (f) In total, the learned Adjudicator awarded the tenants compensation in the amount of $6,720. Appeal Grounds [18] The appellant raises the following arguments on appeal: (a) Ground 1: The learned adjudicator denied the appellants procedural fairness by receiving into evidence the table of comparative personal items on the day of 2 T1–4 Lines 41–47; T1–5 Lines 48–49. -- 4 of 8 -- 5 the hearing. In doing so, he deprived the appellant of the opportunity to conduct its own research and present contradictory evidence to the Tribunal. (b) Ground 2: In the hearing, the learned Adjudicator failed to adequately explore Mr Farmer’s statement that the damage to the applicant’s personal items occurred during both the first and second flood. (c) Ground 3: The learned adjudicator erred when he awarded the applicants 100 percent of their rent for six weeks because the property was not unliveable and that amount exceeded what the applicants were asking for in their claim. (d) Ground 4: The learned Adjudicator erred by failing to consider that the tenants did not to mitigate their loss by: (i) allowing their personal items to remain in the study for an extended period after the second flood; and (ii) Failing to take out insurance for their personal items. Leave to appeal [19] This is an appeal from a minor civil dispute proceeding. Therefore, the appellant is required to obtain the Tribunal’s leave to appeal.3 Leave may be granted where: (a) there is an important point of law or question of general public importance.4 (b) 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.5 [20] I do not consider that this appeal raises an important point of law or question of general importance. It raises conventional questions that are commonly encountered in the Tribunal’s minor civil dispute jurisdiction. Further, I do not consider that the appeal is necessary to correct a substantial injustice to the applicant, or that there is an error to be corrected, for the following reasons. Ground 1 [21] Turning first to the appellant’s contention that the Tribunal denied it procedural fairness by accepting the tenants table into evidence on the day of the hearing. My perusal of the hearing transcript reveals that at no point during the hearing did Ms Loneragan object to the evidence contained in the table. Nor did she ask for an adjournment of the hearing. [22] In written submissions to the Tribunal, the appellant now complains that the Tribunal ought to have adjourned the hearing on its own initiative because it is “rare” for most property managers to know that they could object to late evidence or request an adjournment. I reject that submission. [23] In Peng v Darley Properties Pty Ltd (t/as L J Hooker Caboolture-Morayfield6, Dr J Forbes concluded that real estate agents fell within the modern indicia of a profession. 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i), (‘QCAT Act’). 4 Younan v Queensland Building Services Authority [2011] QCA 1. 5 Smith v Ash [2010] QCA 112, [50]; Costigan v Marshall [2010] QCA 344. 6 [2022] QCATA 45, [16]. -- 5 of 8 -- 6 He opined: In principle, if not always in practice, estate agency and management involves “intellectual activity…professional standards of competence, training and ethics ... reinforced by some form of official accreditation accompanied by evidence of qualification” indicative of a modern profession. [24] It is telling that s 206(1)(b) of the RTRA authorises agents to stand in the homeowner’s place in prescribed Tribunal proceedings. That is a grave responsibility. It would seem to me that a professional standard of competence requires an agent standing in the place of a homeowner to possess, at a minimum, an elementary understanding of the processes of the Tribunal, including its general power under s 57 of the QCAT Act to adjourn a proceeding. [25] Procedural fairness requires that a respondent is given an opportunity to see and comment upon any material filed by the applicants in support of the application7. If the appellant required additional time to consider respond to the table, it was incumbent upon Ms Loneragan to apply for an adjournment, or at the very least provide some indication to the Tribunal that the tenants late provision of the table caused her discomfort. [26] Moreover, in Hawkins v East8, Member Hughes (as he then was) aptly observed that “The Tribunal must observe procedural fairness. However, this is a flexible notion that must be commensurate with the nature and demands of the jurisdiction … The requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal.” [27] In my view, requiring Adjudicators to proactively adjourn hearings when a professional party has failed to object to late evidence, is inconsistent with the Tribunals mandate to deal with matters in a way that is accessible, fair, just, economical, informal and quick.9 That is especially true in a “demanding minor civil disputes jurisdiction, where thousands of applications are processed and determined each year”.10 Accordingly, I find that Ground 1 has no merit. Ground 2 [28] There is no substance to the appellant’s claims that the learned Adjudicator failed to adequately explore Mr Farmer’s initial assertion that his personal items were damaged in the initial flood. A factual finding by the Tribunal below should not be disturbed unless “it is demonstrated to be wrong” by “incontrovertible facts or uncontested testimony”, or it is “glaringly improbable” or “contrary to compelling inferences”.11 It was open to the learned to adjudicator to conclude that Mr Farmer merely misspoke. Perusal of the transcript indicates that both Ms Thurecht and Mr Farmer subsequently clearly articulated to the Tribunal that their personal items were damage in the second flood rather than the second flood. The appeal fails in respect of ground 2. 7 Metcalfe v Hall & Anor [2015] QCATA 43 [15]. 8 [2019] QCATA 145 [6]. 9 QCAT Act s 3. 10 Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliff [2013] QCATA 212, [46] (Wilson J). 11 Robinson Helicopter Company Incorporated v McDermott (2016) 90 ALJR 679, [43] (French CJ, Bell, Keane, Nettle and Gordon JJ). -- 6 of 8 -- 7 Ground 3 [29] Turning now the appellant’s contention that the Tribunal erred when it awarded the applicants 100 percent of their rent for six weeks despite the property not being unliveable. It did not seem to be in dispute at the hearing that the lessor breached the tenancy agreement by failing to ensure that the premises were fit to live in, was in good repair and that it did not complied with minimum housing standards. In the event of a breach by the lessor, s 420(1)(e) of the RTRA permits the Tribunal to make an order for compensation. [30] Whilst a notional reduction in rent is one method of assessing compensation, it is not the only method. It was also open to the Tribunal to compensate the tenants for the distress and inconvenience they experienced because of the homeowner’s failure to perform its repair obligation. The quantum of that compensation can be ascertained in several different ways including by application of a global award for discomfort and inconvenience.12 [31] In Fawzi El Saiedy v New South Wales Land & Housing Corporation [2011] NSWSC 820, Harrison As J awarded damages for disappointment, distress and physical inconvenience caused by mould and asbestos which restricted the tenants movements in the house. His Honour cited with approval the statement in Barton v Lantsbury [2004] VCAT 92 at [60] that ‘there is no clear mathematical formula which can be adhered to in assessing damages for mental distress. The question in its nature must be at large.’ [32] Therefore, when assessing compensation, I do not consider that the learned adjudicator was required to mathematically calculate the loss of amenity caused by the lessor’s breach. He was entitled to award a global award for emotional distress, physical discomfort and inconvenience. The transcript of the hearing is replete with instances when the tenants lamented the physical harm and distress they experienced from the lessor’s breach. Although the learned Adjudicator did not refer to those specific heads of damage in his oral reasons, it does not axiomatically follow that he did not consider them when deciding the appropriate amount of compensation. This Appeal Tribunal should not hold the delivery of oral reasons in the busy minor civil dispute jurisdiction to an impossible counsel of perfection. There is no merit to the appellant’s third ground of appeal. Ground 4 [33] Lastly, the appellant’s contention that the tenant’s failed to mitigate their loss by leaving their items in the study for six days lacks substance. Firstly, it is not reasonable to expect that the tenants could have known or predicted the items would develop mould at such an accelerated rate. Secondly, the possibility that the significant initial exposure to flooding and high moisture levels in the house would have caused the items to develop mould irrespective of their removal from the study cannot be excluded. Accordingly, even if the learned adjudicator failed to turn his mind to the tenants’ duty to mitigate loss, that omission would not have materially improved the appellants prospects of success at the hearing in this case. 12 Moorjani v Durban Estates Ltd [2016] 1 WLR 2265. -- 7 of 8 -- 8 [34] As for the appellant’s contention that the tenants failed to take out insurance, this Appeal Tribunal has previously found that the absence of insurance does not offer any protection to the lessor from liability for breach of the tenancy agreement.13 Conclusion [35] It has been said that “the requirement of leave effectively represents no more than a means of efficiently disposing of prospective appeals which would obviously fail”.14 The present appeal aptly satisfies that criterion. For the reasons above, I am not persuaded that there is a reasonable argument that there is an error to be corrected. Accordingly, leave to appeal is refused. 13 Integrity Property Management v Weaver [2021] QCATA 141 [42] 14 Coulter v R (1988) 164 CLR 350 (Deane and Gaudron JJ). -- 8 of 8 --