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Fleger & Anor v Joubert

Fleger & Anor v Joubert

Case [2024] QCATA 13 14 February 2024

Civil Litigation & Procedure

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Fleger & Anor v Joubert [2024] QCATA 13

PARTIES:

FLORENCE FLEGER

(first applicant)

HANS FLEGER
(second applicant)

KIM JOUBERT

(respondent)

APPLICATION NO/S:

APL353-23

ORIGINATING APPLICATION NO/S:

MCD0167/23 (Southport)

MATTER TYPE:

Appeals

DECISION DELIVERED ON:

10 January 2024

REASONS DELIVERED ON:

14 February 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 October 2023 (amended 7 November 2023) is refused.

2. The interim order made 20 November 2023 is vacated.

3. The Warrant of Possession made on 21 September 2023 is re-issued to take effect on 13 January 2024.

4. The Warrant of Possession shall remain in effect for 21[1] days to expire at 6:00pm on 2 February 2024.

5. The Warrant of Possession is to be executed as soon as reasonably practicable after taking effect.

6. Entry under the warrant shall only be between the hours of 8:00am and 6:00pm.

THE APPEAL TRIBUNAL DIRECTS THAT:

1. Florence Fleger and Hans Fleger must file in the Appeal Tribunal one (1) copy and give to Kim Joubert one (1) copy of EITHER:

(a) A notice of withdrawal if they do not intend to proceed with 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 23 February 2024.

2. If Florence Fleger and Hans Fleger fail 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.

3. If Florence Fleger and Hans Fleger comply with direction 1(b) above, the following directions apply:

a. The Appeal Tribunal intends to consider whether to dismiss the application for leave to appeal or appeal pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) on the basis it appears to be futile/lacking in substance because:

i. the decision the subject of the application terminated the residential tenancy and provided for a warrant of possession to take effect on 22 November 2023 and to remain in effect until 5 December 2023;

ii. the Appeal Tribunal’s decision to refuse the application to stay the decision has the effect that the tenancy remains terminated and the warrant re-issued to take effect from 13 January 2024;

iii. the Appeal Tribunal cannot, as an outcome of the appeal process make orders reinstating the tenancy or reversing a warrant of possession that has already been executed.

b. Both parties must file in the Tribunal one (1) copy and give to the other party one (1) copy of written submissions addressing whether the application for leave to appeal should be dismissed pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and if not, why not, and the basis upon which it is submitted the application for leave to appeal or appeal should proceed,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fleger & Anor v Joubert

Details

AGLC: Fleger & Anor v Joubert [2024] QCATA 13
Case: [2024] QCATA 13
Decision Date: 14 February 2024

CaseChat Overview and Summary

Fleger & Anor v Joubert involved a dispute in the minor civil dispute jurisdiction of the Queensland Civil and Administrative Tribunal, where the tenants, Florence and Hans Fleger, sought to appeal a decision to terminate their tenancy on the grounds of the lessor's excessive hardship. The lessor, Kim Joubert, had applied for termination of the tenancy, and a warrant of possession was issued to take effect from 22 November 2023. The Flegers argued for a stay of the decision to terminate the tenancy, pending the outcome of related proceedings in the District Court and their application for leave to appeal the decision.

The legal issues before the Appeal Tribunal were whether the decision to terminate the tenancy should be stayed or adjourned pending the outcome of the District Court proceedings and whether the decision should be stayed pending the outcome of the application for leave to appeal. The Flegers contended that a stay was necessary due to the related proceedings and to prevent an immediate and irreversible loss of their home. Joubert argued that the application for a stay was premature and that the appeal process would not result in reinstatement of the tenancy or reversal of the warrant of possession.

The Appeal Tribunal refused the application to stay the decision, finding that the Flegers had not demonstrated a strong case for a stay. The Tribunal noted that the Flegers had not provided any evidence to suggest that the District Court proceedings would affect the outcome of the minor civil dispute. Furthermore, the Tribunal held that the appeal process would not result in reinstatement of the tenancy or reversal of the warrant of possession that had already been executed. The Tribunal also considered the hardship that Joubert would suffer if the tenancy were not terminated and the warrant of possession not executed. The Tribunal re-issued the warrant of possession, to take effect from 13 January 2024 and remain in effect until 6:00pm on 2 February 2024, with entry to be made only between 8:00am and 6:00pm.

The Tribunal directed that the Flegers must notify the Tribunal and Joubert of their intentions regarding the appeal by 23 February 2024. If the Flegers indicated their intention to proceed with the appeal, they were directed to file written submissions by 9 March 2020, addressing why the application for leave to appeal should not be dismissed and the basis upon which the appeal should proceed. The Tribunal indicated its intention to decide whether to dismiss the application for leave to appeal on the papers, without an oral hearing, by 9 March 2024.

Orders

Orders of the court

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

1. The application to stay a decision filed on 23 October 2023 (amended 7 November 2023) is refused.

2. The interim order made 20 November 2023 is vacated.

3. The Warrant of Possession made on 21 September 2023 is re-issued to take effect on 13 January 2024.

4. The Warrant of Possession shall remain in effect for 21[1] days to expire at 6:00pm on 2 February 2024.

5. The Warrant of Possession is to be executed as soon as reasonably practicable after taking effect.

6. Entry under the warrant shall only be between the hours of 8:00am and 6:00pm.

THE APPEAL TRIBUNAL DIRECTS THAT:

1. Florence Fleger and Hans Fleger must file in the Appeal Tribunal one (1) copy and give to Kim Joubert one (1) copy of EITHER:

(a) A notice of withdrawal if they do not intend to proceed with 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 23 February 2024.

3. If Florence Fleger and Hans Fleger comply with direction 1(b) above, the following directions apply:

a. The Appeal Tribunal intends to consider whether to dismiss the application for leave to appeal or appeal pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) on the basis it appears to be futile/lacking in substance because:

ii. the Appeal Tribunal’s decision to refuse the application to stay the decision has the effect that the tenancy remains terminated and the warrant re-issued to take effect from 13 January 2024;

iii. the Appeal Tribunal cannot, as an outcome of the appeal process make orders reinstating the tenancy or reversing a warrant of possession that has already been executed.

b. Both parties must file in the Tribunal one (1) copy and give to the other party one (1) copy of written submissions addressing whether the application for leave to appeal should be dismissed pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and if not, why not, and the basis upon which it is submitted the application for leave to appeal or appeal should proceed, by:

4:00pm on 9 March 2024.

c. Unless otherwise ordered, the Appeal Tribunal will decide whether to dismiss the application for leave to appeal or appeal on the papers, on the basis of written submissions from both parties and without an oral hearing, not before:

4:00pm on 9 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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Citations

AGLC Citation

Fleger & Anor v Joubert [2024] QCATA 13

Most Recent Citation

Palmer v Madrone Pty Ltd [2025] QCATA 56

Cases citing this decision · 2 of 2 shown

Hobson v Grant
[2025] QCATA 63 Para 12

…As I observed in Fleger v Joubert [2024] QCATA 13 at [32], the QCAT Act and the RTRAA clearly vest exclusive jurisdiction in the tribunal (and in Magistrates sitting as the tribunal) to determine residential tenancy disputes. Nothing in the RTRAA excludes parties to an intimate relationship from the operation of t…
Palmer v Madrone Pty Ltd
[2025] QCATA 56 Para 4

…ns as to the existence of a legitimate tenancy agreement. Those and other critical distinctions were identified and distinguished in Fleger v Joubert [2024] QCATA 13.…

View all 2 citing cases →

Cases cited in this decision · 42 of 42 shown

Joubert v Fleger & Fleger
[2023] QCAT 382 Para 1

…an equitable interest in the nature of a right to reside, or alternatively, an equitable security interest in the unit. [2] Joubert v Fleger & Fleger [2023] QCAT 382.…
Penfold v Firkin & Balvius
[2023] QCATA 11

…) 240 CLR 611 National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 Penfold v Firkin & Balvius [2023] QCATA 11 Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 Rodgers v Rodgers (1964) 114 CLR 608 Rukat v Rukat [1975] Fam Div 63…
Symes v Kahler
[2022] QCATA 35

…d v Bell [2016] QCATA 176 Sterling Pharmaceuticals Pty Ltd v Boots Company (Australia) Pty Ltd (1992) 34 FCR 287 Symes v Kahler [2022] QCATA 35…
Hunter v Fowler
[2021] QCATA 83 Para 12

…In Hunter v Fowler [2021] QCATA 83, 73 Dr Forbes held ([13]): The RTRAA does not define `hardship’. Therefore, we are referred to a basic rule of statutory interpretation, namely that, absent special provision, legislation is to be construed according to its natural and ordinary meaning. Assistance may be gained f…
Berry v Treasure & Anor
[2021] QCATA 61 Para 3

…, there is not an automatic right to appeal these decisions; rather, an applicant must first establish that it has a right to a grant of leave. [11][2021] QCATA 61, [14]. [12][2012] QCATA 182.…
Betts v Department of Housing and Public Works
[2019] QCATA 180

…gartner v Baumgartner (1987) 164 CLR 137 Berry v Treasure & Anor [2021] QCATA 61 Betts v Department of Housing and Public Works [2019] QCATA 180 Cachia v Grech [2009] NSWCA 232 Camden v McKenzie [2007] QCA 136 Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 Creek v Raine & Horne Real Estate Mossman [2011]…
Arthur v Husheer; Gautron v Husheer
[2019] QCATA 146 Para 1

…ne of issue estoppel arising out of decisions by the tribunal in the minor civil dispute jurisdiction.[31] [31] Arthur v Husheer; Gautron v Husheer [2019] QCATA 146.…
Sommers v Bycroft
[2019] QCATA 130 Para 11

…In Sommers v Bycroft [2019] QCATA 130 there was such a strong case to make an order on the lessor’s application for a termination because of excessive hardship that a stay application of the warrant was refused on appeal. The applicant for the termination order was the administrator of the lessor’s deceased estate…
Hessey-Tenny & Anor v Jones
[2018] QCATA 131 Para 4

…red under s 58 to allow a stay of a primary order in circumstances where leave to appeal has not yet been granted.[7] [7] Hessey-Tenny & Anor v Jones [2018] QCATA 131, [24].…
Simonova v Department of Housing and Public Works
[2018] QCA 60 Para 2

…“the circumstances must be exceptional before an order in the nature of a stay will be granted, pending an application for leave to appeal”. [10][2018] QCA 60, 5.…
Hessey-Tenny & Anor v Jones
[2018] QCATA 13

…347 Fox v Percy (2003) 214 CLR 118 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Hessey-Tenny & Anor v Jones [2018] QCATA 13 House v R (1936) 55 CLR 499 Hunter v Fowler [2021] QCATA 83 JM v QFG and KG [1998] QCA 228 Joubert v Fleger & Fleger [2023] QCAT 382 King v King [2010] QCATA 84 Kioa v Wes…
Day v Humphrey
[2017] QCA 104 Para 5

…ered by the applicant if the stay is not granted. [8] Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 per Jerrard JA at [8]; Day v Humphrey [2017] QCA 104 per Morrison JA at [5]–[6].…
State of Queensland & Anor v Bell
[2016] QCATA 176 Para 1

…Mr and Mrs Fleger require leave to appeal. In State of Queensland v Bell [2016] QCATA 176 the Appeal Tribunal observed at [9] that: The leave limitation on the right of appeal acts as a filter against unwarranted reconsideration of procedural issues and costs orders in tribunal proceedings.[9] It is one of the mech…
Durrand v Karaolis
[2012] QCATA 182 Para 3

…right to appeal these decisions; rather, an applicant must first establish that it has a right to a grant of leave. [11][2021] QCATA 61, [14]. [12][2012] QCATA 182.…
King v King
[2010] QCATA 84 Para 2

…In King v King [2010] QCATA 84 (‘ King ’) the Appeal Tribunal found that: [22] The learned adjudicator correctly determined QCAT does not have jurisdiction to determine John King’s claim in equity. QCAT could only make a final decision that could be made under the RTRA Act, so he could not have determined that Joh…
Minister for Immigration and Citizenship v SZMDS
[2010] HCA 16 Para 4

…n version to another or one set of inferences to another. That is his function.[42] [42] Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611, [131].…
Leddicoat v Walker
[2010] QCATA 18

…QCA 228 Joubert v Fleger & Fleger [2023] QCAT 382 King v King [2010] QCATA 84 Kioa v West (1985) 159 CLR 550 Leddicoat v Walker [2010] QCATA 18 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 Minister for Immigr…
LAG v Department of Communities (Child Safety Services)
[2010] QCAT 18 Para 10

…challenge to the Flegers’ prospects due to the strong presumption in favour of a decision involving discretionary judgment. [43] Leddicoat v Walker [2010] QCAT 18.…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27 Para 3

…lic or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations ...[29] [26] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217. [27]See Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Kirby and Gummow JJ. [28](1985) 159 CLR 550 at 584-585. [29] Creek v Raine & Ho…
Cachia v Grech
[2009] NSWCA 232

…CLR 137 Berry v Treasure & Anor [2021] QCATA 61 Betts v Department of Housing and Public Works [2019] QCATA 180 Cachia v Grech [2009] NSWCA 232 Camden v McKenzie [2007] QCA 136 Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 Day v Humphrey [2017]…
ASIC v Jorgensen
[2009] QCA 20 Para 1

…justify the dedication of finite appeal tribunal resources, and those which do not. [9] Australian Securities and Investments Commission v Jorgensen [2009] QCA 20, [29] (Keane JA).…
Camden v Mckenzie
[2007] QCA 136 Para 2

…Failure to give adequate reasons is an error of law.[46] [46] Camden v McKenzie [2007] QCA 136 at [29].…
Fox v Percy
[2003] HCA 22 Para 3

…e considerations ...[29] [26] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217. [27]See Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Kirby and Gummow JJ. [28](1985) 159 CLR 550 at 584-585. [29] Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226.…
Elphick v MMI General Insurance Ltd
[2002] QCA 347 Para 5

…y be granted, does not outweigh the disadvantage suffered by the applicant if the stay is not granted. [8] Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 per Jerrard JA at [8]; Day v Humphrey [2017] QCA 104 per Morrison JA at [5]–[6].…
Giumelli v Giumelli
[1999] HCA 10 Para 5

…) 164 CLR 387, 423. [23][1976] 1 Ch 789, 198. [24](1990) 170 CLR 394, 429. [25] Giumelli v Giumelli (1999) 196 CLR 101, 113-114.…
JM v QFG and KG
[1998] QCA 228 Para 3

…s court merely disagrees with a factual view of a tribunal does not show that a decision based on it is legally erroneous.[41] [41] JM v QFG and KG [1998] QCA 228, 21.…
Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd
[1992] FCA 71 Para 4

…lic interest in either adjournment or stay in the circumstances .[20] [19] Sterling Pharmaceuticals Pty Ltd v Boots Company (Australia) Pty Ltd (1992) 34 FCR 287, 290-1 (Lockhart J). [20] Joubert v Fleger & Fleger [2023] QCAT 382. (emphasis added).…
Commonwealth v Verwayen
[1990] HCA 39 Para 5

…[22] Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 423. [23][1976] 1 Ch 789, 198. [24](1990) 170 CLR 394, 429. [25] Giumelli v Giumelli (1999) 196 CLR 101, 113-114.…
Australian Broadcasting Tribunal v Bond
[1990] HCA 33 Para 2

…great importance.[40] [38] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-41. [39] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356. [40]Ibid 40-42.…
Waltons Stores (interstate) Ltd v Maher
[1988] HCA 7 Para 5

…e . [21] Baumgartner v Baumgartner (1987) 164 CLR 137. [22] Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 423. [23][1976] 1 Ch 789, 198. [24](1990) 170 CLR 394, 429. [25] Giumelli v Giumelli (1999) 196 CLR 101, 113-114.…
Baumgartner v Baumgartner
[1987] HCA 59 Para 5

…s a judgment for a money sum, rather than the acquisition of title . [21] Baumgartner v Baumgartner (1987) 164 CLR 137. [22] Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 423. [23][1976] 1 Ch 789, 198. [24](1990) 170 CLR 394, 429. [25] Giumelli v Giumelli (1999) 196 CLR 101, 113-114.…
Minister for Aboriginal Affairs v Peko-Wallsend Ltd
[1986] HCA 40 Para 2

…great importance or given excessive weight to a relevant factor of no great importance.[40] [38] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-41. [39] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356. [40]Ibid 40-42.…
Kioa v West
[1985] HCA 81

…r v Fowler [2021] QCATA 83 JM v QFG and KG [1998] QCA 228 Joubert v Fleger & Fleger [2023] QCAT 382 King v King [2010] QCATA 84 Kioa v West (1985) 159 CLR 550 Leddicoat v Walker [2010] QCATA 18 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Minister for Aboriginal Affairs v Peko-Wal…
National Companies and Securities Commission v News Corporation Ltd
[1984] HCA 29 Para 3

…Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-3; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311, 319-321. In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which…
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group
[1969] HCA 10 Para 3

…ter, and the rules under which the decision-maker is acting: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-3; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311, 319-321. In this respect the expression “procedura…
Rodgers v Rodgers
[1964] HCA 25 Para 3

…r that there has been a failure to properly exercise the discretion. [17](1936) 55 CLR 499. [18](1953) 94 CLR 621. See especially Rodgers v Rodgers (1964) 114 CLR 608.…
Australian Coal and Shale Employees' Federation v The Commonwealth
[1953] HCA 25 Para 3

…or plainly unjust that the Appeal Tribunal may infer that there has been a failure to properly exercise the discretion. [17](1936) 55 CLR 499. [18](1953) 94 CLR 621. See especially Rodgers v Rodgers (1964) 114 CLR 608.…
House v R
[1936] HCA 40 Para 3

…must be so unreasonable or plainly unjust that the Appeal Tribunal may infer that there has been a failure to properly exercise the discretion. [17](1936) 55 CLR 499. [18](1953) 94 CLR 621. See especially Rodgers v Rodgers (1964) 114 CLR 608.…
Creek v Raine & Horne Real Estate Mossman
[2011] QCATA 226 Para 3

…In Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, then President Justice Wilson observed that: [13] The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources fo…
Colonial Bank of Australasia v Willan
108 ER 303

…etts v Department of Housing and Public Works [2019] QCATA 180 Cachia v Grech [2009] NSWCA 232 Camden v McKenzie [2007] QCA 136 Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 Day v Humphrey [2017] QCA 104 Durand v Karaolis and Anor [2012] QCATA 182 Elphick v MMI General Insu…
Ltd v Maher
114 ER 851 Para 5

…tion of title . [21] Baumgartner v Baumgartner (1987) 164 CLR 137. [22] Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 423. [23][1976] 1 Ch 789, 198. [24](1990) 170 CLR 394, 429. [25] Giumelli v Giumelli (1999) 196 CLR 101, 113-114.…
Alexander v Cambridge Credit Corporation Ltd
(1987) 9 NSWLR 310 Para 2

…In Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 the New South Wales Court of Appeal said that “where it is apparent that unless a stay is granted an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay”.[47] [47]At 695.…

Legislation cited in this decision · 3

Queensland Civil and Administrative Tribunal Act 2009 (Qld)
143(3), 32 3 mentions (from Para 1)
Residential Tenancies and Rooming Accommodation Act 2008 (Qld)
246A 2 mentions (from Para 1)
Property Law Act 1974 (Qld)
1 mention (from Para 3)