Du v Ina Operations Pty Ltd

Case [2024] QCATA 33


QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Du v INA Operations Pty Ltd [2024] QCATA 33

PARTIES:

XI DU

(applicant)

v

INA OPERATIONS PTY LTD 

(respondent)

APPLICATION NO/S:

APL027-24

ORIGINATING APPLICATION NO/S:

MCD Q5358-23

MATTER TYPE:

Appeals

DECISION MADE ON:

1 February 2024

REASONS DELIVERED ON:

14 March 2024

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

1.       The application to stay a decision filed on 23 January 2024 is refused.

2.       The interim order made 24 January 2024 is vacated.

3.       The warrant of possession that took effect on 31 January 2024 and remains in effect until 14 February 2024 may be executed.

THE APPEAL TRIBUNAL DIRECTS THAT:

1.       Noting that as an outcome of the application for leave to appeal, and, if successful, the appeal the Appeal Tribunal cannot return possession of the site to the tenant.  To that end, Xi Du must file in the Tribunal one (1) copy and give to the other party one (1) copy of:

(a)     A notice of withdrawal of the application for leave to appeal or appeal; or

(b)     Written advice that they intend to proceed with the application for leave to appeal or appeal; by:

4:00pm on 11 March 2024.

2.       If Xi Du fails to comply with direction 1 above, without reasonable excuse, the application for leave to appeal or appeal may be dismissed without further notice to the parties.  The Appeal Tribunal will issue further directions after 11 March 2024.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where a stay is sought of a decision made in the minor civil dispute jurisdiction to terminate a tenancy – whether to stay the decision to terminate the tenancy pending the outcome of the application for leave to appeal or appeal

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 281, s 293, s 325, s 326, s 328, s350, schedule 1

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 47, s 58, s 145, Schedule 3

Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Australian Securities and Investments Commission v Jorgensen [2009] QCA 20
Berry v Treasure & Anor [2021] QCATA 61
Cachia v Grech [2009] NSWCA 232
Creek v Raine & Horne Real Estate Mossman
[2011] QCATA 226
Day v Humphrey [2017] QCA 104
Durrand v Karaolis and Anor [2012] QCATA 182
Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Hessey-Tenny & Anor v Jones [2018] QCATA 131
House v R (1936) 55 CLR 499
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Rodgers v Rodgers (1964) 114 CLR 608
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Details
AGLC
Du v Ina Operations Pty Ltd [2024] QCATA 33
Case
[2024] QCATA 33
Decision Date

CaseChat Overview and Summary

The case of Du v Ina Operations Pty Ltd before the Appeal Tribunal involved a dispute over a decision made in the minor civil dispute jurisdiction to terminate a tenancy. The tenant, Xi Du, sought to stay the decision to terminate the tenancy pending the outcome of an application for leave to appeal or appeal the decision. The respondent, Ina Operations Pty Ltd, opposed the stay application. The Appeal Tribunal was tasked with determining whether to grant or refuse the stay and whether to vacate an interim order made in relation to the matter.

The legal issues before the Appeal Tribunal included the principles governing the grant or refusal of a stay of proceedings in the context of a decision made in the minor civil dispute jurisdiction, particularly in relation to a tenancy termination decision. The Tribunal also needed to consider the implications of a potential appeal on the execution of a warrant of possession and the consequences of the stay on the rights of both parties.

The Appeal Tribunal considered the general principles of staying proceedings and the specific circumstances of the case. It found that the tenant had not demonstrated sufficient grounds for a stay, particularly given the imminent execution of a warrant of possession. The Tribunal held that the tenant's application for leave to appeal or appeal could proceed without affecting the tenant's obligation to vacate the premises. As a result, the application for a stay was refused, and the interim order was vacated. The warrant of possession that had taken effect and was set to remain in effect was permitted to be executed. The Tribunal also directed the tenant to provide notice regarding the status of the appeal application by a specified date.

The Appeal Tribunal concluded with specific orders that the application to stay the decision was refused, the interim order was vacated, and the warrant of possession could be executed. Furthermore, the Tribunal directed the tenant to provide notice of the status of the appeal application by a set date, with a warning that failure to comply without reasonable excuse could result in the dismissal of the appeal application.

Orders

Orders of the court

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

1. The application to stay a decision filed on 23 January 2024 is refused.

2. The interim order made 24 January 2024 is vacated.

3. The warrant of possession that took effect on 31 January 2024 and remains in effect until 14 February 2024 may be executed.

THE APPEAL TRIBUNAL DIRECTS THAT:

1. Noting that as an outcome of the application for leave to appeal, and, if successful, the appeal the Appeal Tribunal cannot return possession of the site to the tenant. To that end, Xi Du must file in the Tribunal one (1) copy and give to the other party one (1) copy of:

(a) A notice of withdrawal of the application for leave to appeal or appeal; or

(b) Written advice that they intend to proceed with the application for leave to appeal or appeal; by:

4:00pm on 11 March 2024.

2. If Xi Du fails to comply with direction 1 above, without reasonable excuse, the application for leave to appeal or appeal may be dismissed without further notice to the parties. The Appeal Tribunal will issue further directions after 11 March 2024.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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