When his six month tenancy expired in March 2014 the tenant declined the offer of a further half year, preferring – because of the risk of break lease fees should he decide to leave early – a month to month arrangement.

On the other hand the landlord wanted the certainty of a longer commitment.

By way of compromise the tenancy was extended to 6 January 2015 while all along discussions continued about a further term after the new end date.

Tenant David Donovan accepted a $5 weekly rental increase but would only accept a new six-month term from January on condition the landlord waive any break lease costs if he vacated early.

He reminded landlord Leonard Inkster that his residential tenancy agreement allowed him to stay on as periodic tenant at the end of the fixed term.

Inkster rejected the proposal and as instructed his agent issued a notice to leave in December, expiring in February.

Donovan called for the notice to be withdrawn and when it wasn’t, applied to the Queensland Civil and Administrative Tribunal to overturn the notice under Residential Tenancies and Rooming Accommodation Act s 291 (2)(b) on the grounds that it was “a retaliatory action”.

He claimed the eviction notice was issued only in consequence of his refusal to sign up to a new fixed term.

QCAT senior member Claire Endicott – in approving the adjudicator’s decision – ruled that although Donovan “had the right to discuss and negotiate terms with the lessor” such rights were not being breached by the landlord’s refusal to agree to a month-to-month tenancy.

She also noted that Donovan’s right to a periodic tenancy would only have arisen had the tenancy not been terminated prior to its fixed end date in January 2015.

On that basis “the notice to leave was not a retaliation against Mr Donovan for endeavouring to enforce a right against the lessor”.

The implication from the decision is that had the Notice to Leave been given after the end of the fixed  tenancy,  it would likely have been regarded  as retaliatory and therefore set aside.

Donovan v Inkster [2015] QCATA 147 Senior Member Endicott 28/09/2015