Fleger & Anor v Joubert
[2024] QCATA 13
•14 February 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: | Fleger & Anor v Joubert [2024] QCATA 13 | ||
PARTIES: |
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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, 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. | ||
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 on the grounds of the lessor’s excessive hardship – where tenants claim an equitable interest in the property and seek leave to appeal the decision – where parties are before the District Court in related proceedings – whether application to terminate ought to have been stayed or adjourned pending the outcome of the District Court proceedings – 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 246A, s 293, s 329, s 349, s 426 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 58, s 61, s 143, 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 Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 Australian Securities and Investments Commission v Jorgensen [2009] QCA 20 Baumgartner v Baumgartner (1987) 164 CLR 137 Symes v Kahler [2022] QCATA 35 | ||
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[1]Section 351(4)(b) of the Residential Tenancies and Rooming Accommodation Act 1999 (Qld) is applied.
REASONS FOR DECISION
What is this application about?
Mr and Mrs Fleger wish to appeal a decision made by the Tribunal below to evict them from their occupation of a waterfront unit owned by their niece, Ms Joubert.[2] The parties are in a dispute before the District Court of Queensland about the nature of an arrangement between them whereby Mr and Mrs Fleger paid $300,000 to Ms Joubert that the Flegers say, among other things, gave rise to 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.
The Flegers seek to stay the eviction pending the outcome of their application for leave to appeal and, if granted, the appeal. In fact, they say the Tribunal proceedings ought to have been stayed or adjourned at first instance pending the outcome of the District Court proceedings.
This decision addresses the stay application and makes directions for the conduct of the application for leave to appeal and appeal.
Background
By an application in a minor civil dispute – residential tenancies dispute filed on 16 February 2023 Ms Joubert applied to the Tribunal:
(a)to terminate the Flegers’ tenancy of her unit on grounds of excessive hardship under section 295 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“RTRAA”); or, alternatively, if the arrangement was not a ‘residential tenancy’ able to be terminated,
(b)for a warrant of possession under section 350(1) of the RTRAA on the basis that Mr and Mrs Fleger were not occupying the unit with her consent.
Mr and Mrs Fleger came to occupy the unit under the following circumstances, as summarised by the Tribunal below:
[11] The [Flegers] are aged pensioners. Mr Fleger is 81 years of age, Mrs Fleger is 13 years younger. …They occupy Ms Joubert’s unit and have done since February 2017 in terms of an oral agreement by which they (then) gifted Ms Joubert $300,000.00 from the proceeds of sale of their Brassall property to be applied in due course towards the purchase of a property in which the extended family could all live together; and they meanwhile would (and did) with Ms Joubert’s permission move into the unit pending that occurring (the condition). The condition was a term of the oral agreement.
[12] In a statutory declaration made on 18 February 2017 to provide to a prospective mortgagee to fund acquisition of a property for the agreed purpose, Mrs Fleger said nothing about the condition but declared true that “the money is a gift to assist in the purchase of a home. I am not expecting this money to be paid back to myself or refunded back to me at any time.” The gift in terms of the statutory declaration was not consideration for acquisition by Mrs and Mr Fleger or either of them of a proprietary interest in the unit.
[13] In consultation with Mr and Mrs Fleger, in 2017 Ms Joubert bought and settled on a property at Carrara that would be suitable for the agreed purpose because it included what these days is referred to as a “granny flat” for separate cohabitation. However, Mr and Mrs Fleger declined to move into the Carrara property. There is evidence, partly hearsay but to which I may have regard because I am not bound by the rules of evidence, that Mr and Mrs Fleger told Ms Joubert’s cousin at some point that they did not want to become “glorified babysitters” if they ended up moving in with her. Ms Joubert reported this to Mr and Mrs Fleger, who said that the cousin was a liar.
[14] Ms Joubert subsequently sold the Carrara property but did not repay Mr and Mrs Fleger the amount of $300,000, she instead bought and sold other property after that, again offering on another occasion that Mr and Mrs Fleger move in, which they again declined. Further complicating matters is that there was a falling out in mid-2022 when Mr Houldsworth, Ms Joubert’s husband, told Mr Fleger that he was to move out of the unit. Ms Joubert told Mrs Fleger that she wanted to rent the unit out, that Mrs Fleger (only) could move in with her and Mr Houldsworth in a property at the time rented by them elsewhere. Mr Fleger acquiesced in the request in that he looked (unsuccessfully) for property to rent elsewhere. After that, he and Mrs Fleger decided that they did not want to live apart and once again declined to move out.
[15] Mr and Mrs Fleger have never paid rent to Ms Joubert, though they improved the unit by buying and having installed a new oven at and paying for the cost of repainting the unit internally and installing curtains. They currently do not pay outgoings for the unit but did previously pay body corporate levies and other outgoings until Ms Joubert gave them notice in about August 2022 that she wanted to move back into the unit and that they should leave. She redirected all invoicing of outgoings to herself to pay direct.
[16] Ms Joubert no longer owns real estate other than the unit. She is now a university student. Her financial circumstances and those of Mr Houldsworth, a veteran who suffers from post-traumatic stress syndrome, took a turn for the worse in 2022 and have continued to deteriorate. Together with Mr Houldsworth, Ms Joubert continues to pay rent to live elsewhere with their children while the dispute remains unresolved. There is a mortgage over the unit which Ms Joubert must continue to repay, as well as the body corporate levies, rates, and taxes for the unit.
[17] Mr and Mrs Fleger have never made mortgage repayments on the unit. Mr and Mrs Fleger’s refusal to vacate the unit prevents Ms Joubert from returning it to the holiday letting pool administered by the building manager, where it was prior to her uncle and aunt moving in during February 2017. In the period from that date to 1 June 2023, the unit would have returned $192,000 to Ms Joubert had it been left in the holiday let pool, however it has returned nothing but increasing indebtedness to her.
[18] Ms Joubert is therefore caught in a debt trap, she is at appreciable risk of losing the unit to a Bank if it takes possession for a mortgagee sale. Her financial predicament is set out in paragraphs 45 to 63 of Ms Joubert’s affidavit sworn on 6 February 2023 filed in the District Court, a copy of which is filed in these proceedings, supported by exhibits. See also Ms Joubert’s affidavit sworn 17 May 2023 filed in these proceedings, paragraphs 3 to 42. None of that evidence is disputed by Mr and Mrs Fleger. Neither has given any evidence of their own assets, liabilities, income, and expenditure currently or recently.[3]
[3]Ibid (emphasis added) (citations omitted).
The parties came to be before the District Court of Queensland in the following circumstances (again, footnotes omitted, emphasis added):
[20] Ms Joubert originally commenced proceedings in the Magistrates Court of Queensland at Brisbane on 4 November 2022 in M2151/22, seeking an order for possession of the unit and a warrant of possession pursuant to section 146 of the Property Law Act 1974 (Qld). I accept that she was mis-advised in that respect by her solicitors at the time. They apparently thought it the correct jurisdiction and it would have been if commenced by Complaint and Summons for possession, but not if the tenancy were a residential tenancy which Ms Joubert asserts it is.
[21] Mr and Mrs Fleger filed a defence and counterclaim in the Magistrates Court proceedings on 5 December 2022. The proceedings were subsequently transferred to the District Court, to be heard concurrently with a Claim filed by Ms Joubert there. Later, by amendment and deletion, Ms Joubert abandoned her claim in the District Court for possession and a warrant of possession of the unit and filed her application to QCAT on 16 February 2023 for termination of a residential tenancy.
[22] Amended pleadings in the District Court recently closed. In them, Ms Joubert claims a declaration that a conditional gift of $300,000.00 received in February 2017 from Mr and Mrs Fleger to buy a property for the extended family (including her uncle and aunt) to live in was satisfied by her purchase of a (the) property at Carrara on the Gold Coast (the Carrara property) under a contract that settled on 6 April 2017. Ms Joubert pleads that the Carrara property included a separate self-contained flat, into which her aunt and uncle had agreed they would move, but that they reneged on the agreement, and Mr Fleger contended that he and his wife are entitled to live their life out in Ms Joubert’s unit.
[23] Mr and Mrs Fleger counterclaim a remedial constructive trust, or equitable compensation secured by charge or lien over Ms Joubert’s legal title to the unit until repaid and assert an estoppel against Ms Joubert from denying their indefinite right of residency in the unit until an accounting for the $300,000.00 paid by them to her. At the Tribunal hearing on 1 June 2023, Mr Dudley of counsel for Mr and Mrs Fleger summarised the essence of what is admitted and disputed in both the District Court and the Tribunal. He said:
I think the crux of the dispute is this, so what is agreed between the parties is that there was $300,000.00 given on the understanding that they could live in the unit until a suitable property was found for all of them to live. That’s not in dispute. They moved into the property, and they’ve paid the $300,000. It is then also not in dispute that they were trying to find a property. There is where the dispute arises. As I understand it, the applicant says that she found a suitable property for them to move into; it’s the Carrara property. And she bought the Carrara property using the Respondents’ money. And she invited them to come into the property, and they refused and said they wanted to keep staying in the unit. That’s her case.
Our case is that a second agreement was reached, which was that they weren’t able to find a suitable property, and so the applicant bought the Carrara property, which she understood as not being suitable for them. There was an agreement that she could buy it for herself, and in the interim we’d get to continue living in her unit, until such time as she ultimately bought a property that was suitable. And that never came, and so the respondents are still residing in the unit and have never had their money given back. That’s, I think, the crux of the dispute.
[24] …Mr Trewavas for Ms Joubert agreed with Mr Dudley’s summary of the admitted and disputed facts and submitted that there is a residential tenancy by application of the provisions of the RTRAA and it should be terminated. Mr Dudley disagreed. He submitted that it is not a residential tenancy because it lacked any of the indicia of one, alternatively that if I find it is a residential tenancy then I should stay proceedings in the Tribunal pending the outcome of the District Court case.[4]
[4]Ibid (emphasis added) (citations omitted).
The decision of the Tribunal below was as follows:
[49] I will order termination of the tenancy in two months to allow Mr and Mrs Fleger limited further time within which to arrange to move elsewhere and obtain further legal advice if required. Their right to (sic) in the District Court as may be advised to preserve asserted equitable rights to ongoing occupation of the unit is unaffected by the decision in this case. As the Act requires, I will authorise the issue of a warrant of possession for fourteen days after the tenancy ends. I have considered whether I should also order compensation to Mr and Mrs Fleger as section 350(3) of the Act permits. …I do not think it an appropriate exercise of discretion to order compensation where the tenants are represented by counsel instructed by solicitors and, as Counsel for Ms Joubert accepted, none is sought.[5]
[5]Ibid (emphasis added) (citations omitted).
In summary, the Tribunal below refused to stay the application for termination pending an outcome in the District Court proceedings, found the Flegers occupied the unit under a residential tenancy agreement and terminated that agreement on the grounds of Ms Joubert’s excessive hardship, issuing a warrant of possession as it was required to do under s 350 of the RTRAA.
The Flegers applied to stay the decision and for leave to appeal and to appeal it, saying that:[6]
[6]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 143(3) ('QCAT Act’).
Stay or Adjournment
Ground 1: The Tribunal erred in failing to grant a temporary stay or adjournment of the application pending an outcome in the District Court proceeding.
Ground 2: The Tribunal denied the Flegers procedural fairness and natural justice by failing to hear and determine the stay application prior to determining jurisdiction and by failing to give the parties the opportunity to make further submissions on the Flegers’ estoppel contention before ruling on it.
Jurisdiction
Ground 3: The Tribunal erred in failing to conclude that the Tribunal lacked equitable jurisdiction to determine whether the applicant ought to be estopped from enforcing legal rights under the residential tenancies agreement and improperly exercised its powers to determine the estopped contention in the context of the District Court proceeding.
Ground 4: The Tribunal erred in law in concluding the Tribunal had exclusive jurisdiction to determine whether the applicant ought to be estopped from enforcing the residential tenancies agreement.
Ground 5: The Tribunal erred in failing to conclude that the District Court had jurisdiction to hear and determine whether the applicant ought to be estopped from exercising her legal rights as proprietor of the property notwithstanding the finding that residential tenancy existed between the parties.
Ground 6: The Tribunal erred in law in failing to find that the determination of the application in the Flegers’ favour would render nugatory, materially affect, impact or otherwise pose a risk of inconsistency with the Flegers’ claim in the District Court.
Entitlement to Relief
Ground 7: The Tribunal erred in law in failing to find that the Flegers occupied the property pursuant to their proprietary interest in the property and not pursuant to a residential tenancy agreement within the meaning of the RTRAA.
Ground 8: The Tribunal erred in failing to conclude that it was not reasonably open on the evidence to conclude that Ms Joubert satisfied the onus of excessive hardship within the meaning of the RTRAA.
Estoppel
Ground 9: The Tribunal erred in failing to conclude that by reason of the parties’ agreement Ms Joubert was estopped from enforcing her legal rights, title and interest in the property until she repays the Flegers’ their money.
Factual Findings
Ground 10: the Tribunal erred in failing to find that it was not reasonably open to conclude:
(a)That the Carrara property was suitable for the agreed purpose.
(b)Ms Joubert made offers to the respondents to move into the Carrara property which were declined by the Flegers.
(c)Between February 2017 and June 2023, the unit would have returned $192,000 to Ms Joubert if returned to the rental pool.
(d)There had not been a predation by Ms Joubert of the Flegers’ disadvantage or a power imbalance between the parties.
Reasons
Ground 11: The reasons given by the Tribunal for its decision were inadequate.
Stays and applications for leave to appeal under the QCAT Act
Under s 145(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) the Appeal Tribunal may make an order staying the operation of a decision of the Tribunal below until the appeal is finally decided. However, there is no appeal until and unless leave to appeal has been granted where required.
Section 58(1) of the QCAT Act permits the Appeal Tribunal to make any interim order it considers appropriate in the interests of justice, including, for example:
(a)to protect a party’s position for the duration of the proceeding; or
(b)to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction for the proceeding.
A “proceeding” is defined in Schedule 3 of the QCAT Act to generally mean “a proceeding before the tribunal, including an appeal before the appeal tribunal and a proceeding relating to an application for leave to appeal to the appeal tribunal”.
Therefore, an application to stay a decision that falls outside the ambit of s 145 may be considered 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].
To succeed on a conventional application for a stay, the party applying for the stay must satisfy the Appeal Tribunal that there is a good reason for the stay, including:[8]
(a)that the applicant has a good arguable case on appeal;
(b)that the applicant will be disadvantaged if a stay is not ordered; and
(c)that competing disadvantage to the respondent, should the stay 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].
A good arguable case on appeal
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 mechanisms used to distinguish between those cases that 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).
McMurdo JA said in Simonova v Department of Housing and Public Works[10] that “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.
Justice Daubney, President observed in Berry v Treasure & Anor:[11]
There is no automatic right of appeal against minor civil dispute decisions. I respectfully adopt and endorse the following observations by the former President, Justice Alan Wilson, in Durrand v Karaolis:[12]
The Queensland Parliament has made it clear, in the QCAT Act, that so far as possible minor civil disputes of this kind are to be resolved by a simple procedure which is speedy, inexpensive and final. That conclusion is reinforced by the fact that before a party can appeal a decision in this jurisdiction it must obtain leave from the Appeal Tribunal … In other words, 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.
In determining whether to grant leave, the Appeal Tribunal must be satisfied that, relevantly:
(a)there is a reasonably arguable case of error in the primary decision;[13]
(b)there is a reasonable prospect that they will obtain substantive relief;[14] and
(c)leave is needed to correct a substantial injustice caused by the error;[15] or
(d)there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[16]
An arguable case of error in the primary decision
[13]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[14]Cachia v Grech [2009] NSWCA 232, 2.
[15]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[16]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.
Ground 1: The Tribunal erred in failing to grant a temporary stay or adjournment
This is no reasonably arguable case of error on this ground, in my view.
An immediate problem for the Flegers presents itself with respect to the decision to refuse to stay or to adjourn being an exercise of discretion.
There is a strong presumption in favour of a decision involving discretionary judgment. It is not enough that the Appeal Tribunal might have decided differently, rather, an applicant must show that in terms of House v R[17] and Australian Coal and Shale Employees’ Federation v The Commonwealth[18] that the discretion exercised by the decision maker has miscarried by acting on a wrong principle or giving weight to extraneous or irrelevant matters or failing to give weight or sufficient weight to relevant considerations or making a mistake as to the facts. The result 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.
In refusing to stay or adjourn, the Tribunal said:
[50] My reasons would be incomplete without the following comprehensive summary of the stay criteria in Sterling,[19] considered and applied in this case. Their prior resort to litigation in the several other jurisdictions first is irrelevant because Mr and Mrs Fleger’s counterclaim in the District Court for equitable relief based on a right of occupation in equity is not justiciable in QCAT and Ms Joubert’s claim for termination of a right of occupation in tenancy is not justiciable in the District Court. The causes of action differ fundamentally, even though occupation is the common denominator. A decision in one proceeding will not determine the decision in the other. There is no risk of inconsistency. The jurisdictions are not competing. Whereas there is disagreement about the existence of a second agreement to which Mr Dudley referred, the condition of the second agreement is essentially the same as the condition and term of the (first) February 2017 agreement, about which there is no dispute. It is unlikely that there will be any waste of time in either QCAT or in the District Court in adjudicating the respective but different claims. Ironically, it is the law of differing jurisdiction that has required the multiplicity of proceedings. The advantages and disadvantages of each party are the same and unavoidable. Adjourning the Tribunal hearing or staying final orders on the other hand will waste the Tribunal’s time and further strain already very limited resources in this historically protracted dispute. Adjournment would decide nothing but perpetuate the tenancy disputation. That is highly undesirable given the unfortunate history to date. There is no public 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).
Further, in ‘Constructive Trusts and Equitable Proprietary Relief: Insights from Estoppel’, Principles of Proprietary Remedies (2013, Lawbook Co.), Julie Ward notes from [10.60] that there has been a debate over the proper relief in proprietary estoppel, namely when it may be appropriate to impose a constructive trust to remedy or relieve against the necessary degree of unconscionability in a Baumgartner[21] situation. She goes on to say that:
Previously, the prevailing view in Australia was that relief granted should be the “minimum equity” necessary to avoid the detriment…
The object of the equity is not to compel the party bound to fulfil the assumption or expectation; it is to avoid the detriment which, if the assumption or expectation goes unfulfilled, will be suffered by the party who has been induced to act or to abstain from acting thereon.[22]
Similarly, in Crabb v Arun District Council[23] the award of relief was also said to be that of the “minimum equity” necessary to do justice…
In Commonwealth v Verwayen[24] …the minimum equity test applied, although the critical question was how the “relevant detriment” was to be characterised in ascertaining what would be the “minimum equity”.
…This “minimum equity” approach was rejected in Guimelli.[25] There, Gleeson CJ, McHugh, Gummow and Callinan JJ described the case before them as one where “the Court must look at the circumstances to decide in what way the equity can be satisfied”. The plurality identified that the critical question in the appeal in determining the nature and quantum of the equitable relief to be granted was whether the relief granted was appropriate and whether sufficient weight had been given to the various factors to be taken into account “including the impact upon relevant third parties”. Their Honours said that “[b]efore a constructive trust is imposed, the court should first decide whether, having regard to the issues in the litigation, there is an appropriate equitable remedy which falls short of the imposition of a trust”.
…Their Honours considered on the facts of Giumelli that the prima facie entitlement to a constructive trust over the property so that the plaintiff could acquire the title was made out. However, their Honours also noted that this prima facie entitlement would be qualified if that relief would exceed what could be justified by the requirements of conscientious conduct and would be unjust to the estopped party. Therefore, taking into account “all the circumstances of the case”, the more appropriate relief was 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.
On the evidence currently before the Appeal Tribunal, the Flegers are unlikely to be granted an indefinite right to occupy the property or a constructive trust over it where that would be unjust or lead to hardship to Ms Joubert, and where an order for a money sum is able to address their claim, particularly where the value of their initial gift may well be found to have eroded over time having regard to their long-term occupation of the unit rent-free.
This supports the view taken by the learned Adjudicator that there was no benefit to staying or adjourning the proceeding until the District Court claim was determined, because the relief given (if any) is likely to be very different across the two jurisdictions: in other words, the Court and the Tribunal had two very different decisions to make.
Ground 2: The Tribunal denied the Flegers procedural fairness and natural justice by failing to hear and determine the stay application prior to determining jurisdiction and by failing to give the parties the opportunity to make further submissions on the Flegers’ estoppel contention before ruling on it.
This is no reasonably arguable case of error on this ground, in my view. Tenancy termination matters are typically conducted on an urgent basis, with little to no case management, meaning an application is filed, no response is required, and the matter is heard and determined at its first mention, typically listed in fifteen-minute timeslots.
This matter was heard at first instance on 1 June 2023 and decided later, on a reserved basis, having been at least twice previously mentioned and adjourned. The parties were, with leave, legally represented, which is also not typical of minor civil dispute matters. A substantial volume of material was filed. There can be no suggestion that the parties were not alive to the prospect that the stay/adjournment request might be determined with the hearing of the substantive application.
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 for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘... the public as a whole, not merely the parties to the proceedings’.[26] Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[27]
[14] The grounds of appeal relate to a failure of Ms Creek and her representative to realise the matter had been called for hearing. This potentially raises an issue of procedural fairness. A failure to observe procedural fairness or natural justice is an error of law. In all proceedings, the Tribunal must observe the rules of natural justice.
[15] As Mason J (as his Honour then was) observed in Kioa v West,[28] the requirements of procedural fairness are flexible, and must be adjusted to the statutory framework governing the Tribunal in question:
What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, 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 “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public 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 & Horne Real Estate Mossman [2011] QCATA 226.
It cannot be said, therefore, that in all the circumstances that parts of the matter should have been determined separately or upon the making of further submissions. The parties were alive to all relevant issues and had every opportunity to prepare for those issues to be fully aired at the final hearing. The Tribunal below appears to have acted consistently with its obligation per the objects of the QCAT Act to deal with matters in a way that is accessible, fair, just, economical, informal, and quick.[30]
Ground 3: The Tribunal erred in failing to conclude that the Tribunal lacked equitable jurisdiction to determine whether the applicant ought to be estopped from enforcing legal rights under the residential tenancies agreement and improperly exercised its powers to determine the estopped contention in the context of the District Court proceeding. Ground 9: The Tribunal erred in failing to conclude that by reason of the parties’ agreement Ms Joubert was estopped from enforcing her legal rights, title and interest in the property until she repays the Flegers’ their money.
[30]QCAT Act, s3.
I observe that:
(a)It is not contentious that the Tribunal did not have jurisdiction to determine the Flegers’ equitable claims. Given the estoppel raised by the Flegers arises from their equitable claims, it is difficult to see merit in these two grounds on that basis.
(b)Having regard to the existing District Court proceedings, s 126(2) of the QCAT Act expressly states that a final decision in a minor civil dispute does not prevent a court or another tribunal making a decision about an issue considered (whether or not decided) by the tribunal in the proceeding if the issue is relevant to a proceeding for another matter before the court or other tribunal. The Appeal Tribunal has observed that s 126(2) prevents the operation of the doctrine 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.
Issues of estoppel otherwise arose in the context of the Flegers’ argument for a stay or adjournment of the termination application, addressed under Ground 1.
Ground 4: The Tribunal erred in law in concluding the Tribunal had exclusive jurisdiction to determine whether the applicant ought to be estopped from enforcing the residential tenancies agreement.
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. The dispute is a residential tenancy dispute.
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 John King did have an equitable interest in the property.[32]
[32]King v King [2010] QCATA 84 (‘King’).
Once the Tribunal determined that it had jurisdiction to proceed and decided to proceed, whether the applicant ought to be prevented from enforcing the residential tenancies agreement (or, rather, her rights under it or under the RTRAA) is a matter for consideration when determining whether to grant the applicant the relief sought. This is addressed at [59] and [60].
Ground 5: The Tribunal erred in failing to conclude that the District Court had jurisdiction to hear and determine whether the applicant ought to be estopped from exercising her legal rights as proprietor of the property notwithstanding the finding that residential tenancy existed between the parties.
Nothing in the decision, nor in fact in this decision, prevents the parties from seeking equitable, including injunctive, relief in the District Court. The Tribunal below did not state otherwise.
The parties have been before that Court for some time and have, on the information currently available to the Appeal Tribunal, failed to do so thus far.
It is not clear why, if it is the case that the Adjudicator failed to conclude that the District Court had jurisdiction to hear and determine whether Ms Joubert ought to be estopped from exercising her legal rights as owner, this impacts the Flegers’ rights to pursue their equitable claims and/or injunctive relief in the District Court.
Ground 6: The Tribunal erred in law in failing to find that the determination of the application in the Flegers’ favour would render nugatory, materially affect, impact or otherwise pose a risk of inconsistency with the Flegers’ claim in the District Court.
The agreement between the parties was for the Flegers to contribute, by way of gift, to a property to be acquired by Ms Joubert, to be occupied by them all, and the Flegers would occupy the waterfront unit as an interim measure until that occurred.
It is disputed whether that acquisition already occurred on the agreed terms. What is clear is that any future acquisition will not occur, as the District Court will not compel it against the will of the parties who have no desire or ability to now live together and, further, Ms Joubert can no longer fund it.
In the Flegers’ words:
There was an agreement that she could buy it for herself, and in the interim we’d get to continue living in her unit, until such time as she ultimately bought a property that was suitable. And that never came, and so the respondents are still residing in the unit and have never had their money given back.
The District Court will decide what to do about the situation the parties now find themselves in, but it is highly unlikely that any such outcome will involve the granting of an infinite right of the Flegers to reside in the waterfront unit, for many reasons, but not the least of which include that:
(a)To do so would not be consistent with the original intention of the parties (for example, no more than a month was contemplated, on Ms Joubert’s evidence).
(b)The Flegers are not contributing to expenses and have not, other than their original gift to Ms Joubert, paid for their occupation of the unit which has endured for a considerable period, and, again, on Ms Joubert’s evidence, accepted by the Tribunal below, to a value of $192,000. Regard must be had to this benefit in any consideration of the parties’ equitable interests.
(c)On the evidence accepted by the Tribunal below Ms Joubert cannot meet her mortgage and utilities expenses and her ownership of the property is at risk.
(d)On the evidence accepted by the Tribunal below Ms Joubert and her family cannot afford alternate accommodation and require the unit to reside in.
(e)On a Giumelli consideration, even if the Flegers establish in the District Court a prima facie entitlement to title over the unit, this relief would be qualified by the requirements of justice and equity to Ms Joubert and:
(i) a right to occupy or possess the unit would not necessarily follow, and
(ii) the more appropriate relief to the Flegers, would, in the circumstances, be payment of a monetary sum (for which they seek a security right, that also does not come with a right to occupy).
It is difficult to see, therefore, how the decision would render the District Court proceedings and outcome nugatory and, if it did, why the parties could not avail themselves of the opportunity to seek injunctive relief based on their equitable claim in that jurisdiction.
There is no reasonably arguable case that the Flegers would be granted leave to appeal on this ground.
Ground 7: The Tribunal erred in law in failing to find that the Flegers occupied the property pursuant to their proprietary interest in the property and not pursuant to a residential tenancy agreement within the meaning of the RTRAA.
Section 11 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) gives the Tribunal jurisdiction over minor civil disputes.
Schedule 3 of the Act includes a “tenancy matter” as a minor civil dispute, a tenancy matter being defined in Schedule 3 as a matter under which a person may apply under the RTRAA to the tribunal for a decision regarding a residential tenancy.
“Residential Tenancy Agreement” is defined in section 12 of the RTRAA as an agreement under which a person gives to someone else a right to occupy residential premises as a residence,[33] whether the right is a right of exclusive occupation[34] and whether partly or wholly written, oral or implied.[35] Section 61 of the RTRAA expressly excludes application of the provisions of the Property Law Act 1974 (Qld).
[33]Section 12(1) of the RTRAA.
[34]Section 12(2) of the RTRAA.
[35]Section 12(3).
At first instance, the Tribunal below found (at [29]) that Ms Joubert is the lessor to Mr and Mrs Fleger of the unit, that they are her tenants and that the oral agreement by which she let them into occupation in 2017 is, by statutory definition, a residential tenancy agreement.
It is not apparent where the Tribunal fell into error here: it is not disputed that Mr and Mrs Fleger occupied the unit with the consent of Ms Joubert nor that the unit is a residence. The definition of ‘residential tenancy agreement’ is clearly met on the undisputed facts.
In King the Appeal Tribunal found that the learned Adjudicator had not considered all relevant evidence in finding that a residential tenancy agreement exists where the ‘tenant’ was asserting a right to reside in the property for life:
[26] Although he could not determine the equitable claim, the learned adjudicator was required to take into account all relevant evidence. That included evidence:
(a) That the arrangement between the parties was not, in truth, a residential tenancy;
(b) That the document relied upon by the King siblings was not executed when it purported to have been executed; and
(c) That the purpose of entering into the lease was to enable John King to obtain rent assistance.
[27] In a proceeding for a minor civil dispute, QCAT must make orders that it considers fair and equitable to the parties in order to resolve the dispute. It must ensure, so far as is practicable, that all relevant material is disclosed to enable it to decide the proceeding with all the relevant facts. The evidence given about whether John King’s right to occupy arose from a residential tenancy agreement or some other arrangement was unsatisfactory. There were clearly other people who could have given relevant evidence on that matter. Whilst it may not have been appropriate for the question to be fully ventilated in a jurisdiction that could not recognise John King’s purported interest, this did not mean that the learned adjudicator was entitled to entirely disregard John King’s evidence.[36]
[36]King (n 33) (footnotes omitted).
King is distinguished from the Flegers’ situation in a few important respects:
(a)Mr. King had long occupied the property with his family before it was formally acquired by his four children with the financial assistance of their paternal grandfather. It was, essentially, the family home that Mr King was to continue occupancy of, but neither the funds to acquire it nor the property itself were gifted directly to Mr. King due to his known difficulties managing money that would have put his ability to maintain the property at risk. It was argued that the intention of the arrangement was that the children were to hold the property on trust for their father to occupy for life, namely, the intention of the arrangement was always that Mr King should have a beneficial interest in the property he occupied.
(b)With respect to the Flegers:
(i) The agreement between the parties was for the Flegers to contribute, by way of gift, to a property to be acquired by Ms Joubert, to be occupied by them all.
(ii) The Flegers’ right to reside and any beneficial ownership interest, if they asserted one, would likely have arisen in relation to the property acquired using their financial contribution. Leaving aside the contested issue as to whether the properties acquired where suitable for dual occupancy, two properties were acquired by Ms Joubert with the Flegers’ financial contribution, and the Flegers do not appear to have asserted any interest in either property, or to the net sale proceeds of either, which is a curious thing.
(iii) The waterfront unit was owned by Ms Joubert prior to the arrangement with the Flegers being entered and had been returning rental income to her. It was not acquired by Ms Joubert using the financial contribution of the Flegers nor for the purpose of giving effect to their agreement. Put another way, Ms Joubert’s ownership of it and her practice of granting occupation rights to it pre-existed her agreement with the Flegers.
(iv) There is no evidence, as the learned Adjudicator observed, that the arrangement between the parties for the Flegers to occupy the waterfront unit was to be anything other than a temporary or interim arrangement whilst the dual occupancy property was acquired. Even the Flegers say that it was an interim arrangement.
(c)King also turned on the fact that a residential tenancy agreement document relied upon by Mr King’s children as establishing the tenancy, had only been entered into to meet Centrelink requirements and there was some flavour of it being a ‘sham’ (although this was denied by Mr King). Mr King’s occupancy derived from a transaction intended to put the legal ownership of the home in the hands of his children, but the beneficial right to occupy in the hands of Mr King. The Flegers’ right to occupy derived from the express agreement (now withdrawn) of Ms Joubert that they may do so, in lieu of paying tenants, as a temporary arrangement in the nature of a tenancy, whilst another transaction took place. Tenancies can be terminated in accordance with the RTRAA.
Ground 8: The Tribunal erred in failing to conclude that it was not reasonably open on the evidence to conclude that Ms Joubert satisfied the onus of excessive hardship within the meaning of the RTRAA. Ground 10: the Tribunal erred in making factual findings (a) that the Carrara Property was suitable for the agreed purpose, (b) that offers were made to the Flegers to move into the Carrara property which were declined by the Flegers, (c) that between February 2017 and June 2023 the property would have returned $192,000 to Ms Joubert if returned to the rental pool, (d) that there had not been a predation by Ms Joubert of the Flegers’ disadvantage or a power imbalance between the parties
The rules of evidence are relaxed in the Tribunal, and the Tribunal may inform itself in any way it considers appropriate.[37]
[37]QCAT Act (n 6) s 28(3)(b)-(c).
An error of law may be found where:
(a)A decision maker has failed to consider factors they were bound to consider by statute or by implication from the subject matter, scope and purpose of the Act.[38]
(b)A decision maker has made a finding of fact without probative evidence to support it or drawn an inference which was not reasonably open on the primary facts.[39]
(c)The decision is manifestly unreasonable by failing to give adequate weight to a relevant factor of 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.
However, it has been said that:
…a factual conclusion cannot be infected by legal error unless it is supported by no evidence whatever or unless it is clear, beyond serious argument, that it is wrong. That this 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.
And:
If there is evidence, or if there are available inferences which compete for the judge’s acceptance, no error of law occurs simply because the judge prefers on 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].
The evidence relied upon by the Tribunal below included, without limitation, Ms Joubert’s affidavit sworn on 6 February 2023 filed in the District Court. The affidavit contained many annexures pertaining to Ms Joubert’s alleged financial predicament, that included mortgage account statements, personal loan balances and utilities statements. Although evidence as to Mr Joubert’s income, as to the potential rental income of the property was not supported by annexed documents or searches, Ms Joubert gave sworn evidence as to those things. The learned Adjudicator also heard oral evidence.
It cannot be said that the learned Adjudicator ignored the evidence before him or made findings which were not reasonably open to him on such evidence. He was entitled to accept, as he apparently did, Ms Joubert’s evidence in the form of her affidavit complete with its attachments. Mr and Mr Fleger did not file compelling evidence to counter it.
Even if the Appeal Tribunal were of the view that it would not have made such findings on the evidence, which it is not, this is not enough to establish that the decision based on it is legally erroneous.
There is no reasonably arguable case of error on this ground.
Further, s 343 of the RTRAA permits (but does not oblige) the Tribunal to order termination of a residential tenancy agreement if satisfied the applicant has established a termination ground, in this case, excessive hardship within the meaning of s 295.
This involves a broad exercise of discretion,[43] which, for the reasons given at paragraph [20], above, is a 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.
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 and the gathering in and distribution of the estate was being delayed, and the estate was suffering financially, by the existence of a residential tenancy under which no rent was being paid. It was persuasive that the tenant was one of three beneficiaries who were to benefit equally from the proceeds of sale and the final distribution of the estate, owned a house elsewhere in Queensland and had means to purchase the house either by agreement or by bidding at auction.
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 from cases decided in this Tribunal, or under comparable legislation in other jurisdictions. But unsurprisingly most expositions end with the reflection that no abstract definition is possible, and that ultimately every decision depends on the facts and circumstances of the case. The decision is one of fact, judgment and degree.
The word `hardship’ is not a word of [legal] art. It follows that it must be construed ... in a common-sense way ... such as would meet with the approval of ordinary sensible people. In my judgment the ordinary sensible man would take the view that there are two aspects of `hardship’ – that which the sufferer ... thinks he is suffering, and that which a reasonable bystander with knowledge of all the facts would think that he is suffering. [Rukat v Rukat [1975] Fam Div 63, 73 (Lawton LJ)].[44]
[44]Hunter v Fowler [2021] QCATA 83, 73 (footnotes omitted).
Again, a finding of hardship on Ms Joubert’s part was open to the Tribunal below on the evidence before it. Having thoroughly considered the Flegers’ competing hardship, for which there was less probative evidence, the Tribunal, on balance, exercised its discretion to terminate the tenancy. In doing so, it gave the Flegers’ two further months to vacate before a warrant issued.
In the context of a thorough examination as to whether hardship exists, and whether it was so excessive as to justify an exercise of the discretion, the outcome, whilst no doubt difficult for the Flegers, cannot be said to be so unreasonable or plainly unjust that the Appeal Tribunal may infer that there has been a failure to properly exercise the discretion.
There is no reasonably arguable case of error on this ground.
Ground 11: The reasons for the Decision were inadequate
There is an obligation on the Tribunal to give reasons for its final decision in a proceeding either orally, or in writing,[45] which must be adequate and must address the issues that were put before the Tribunal for determination per Muir JA in Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 at [58]:
The rationale for the requirement that Courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving the losing party with “a justifiable sense of grievance” through not knowing or understanding why the party lost; to facilitate or not frustrate a right of appeal; as an attribute or incident of the judicial process; to afford natural justice with procedural fairness; to provide “the foundation for the acceptability of the decision by the parties and the public” and further “judicial accountability”.
[45]QCAT Act, s121(4).
Failure to give adequate reasons is an error of law.[46]
[46]Camden v McKenzie [2007] QCA 136 at [29].
The Tribunal below reserved its decision and gave detailed reasons for it in writing. This is not typical for tenancy termination matter, conducted on an ‘urgent’ basis typically at fifteen-minute hearing intervals wherein decisions and the reasons for them are given orally ex-tempore.
The learned Adjudicator’s reasons given are thorough and it is apparent to the Appeal Tribunal that they are understood by the Flegers based upon their extensive submissions regarding appeal grounds: the Flegers may dispute the reasons given and findings made, but that does not make them inadequate.
There is no reasonably arguable case of error on this ground.
Where does the balance of convenience lie?
The Flegers are at a disadvantage if the stay is not granted because they will be required to vacate the unit during a housing crisis. They say that they are pensioners, but there is no evidence as to what extent the $84,000 net proceeds from the sale of their Ipswich home has been eroded (or invested and grown), and to what extent they have been able to save during the period in which they have occupied the unit without paying rent or, for some time, utilities. The Flegers also say that they have searched for but have not found suitable alternate rental accommodation.
Further, their application for leave to appeal or appeal will be rendered nugatory if the stay is not granted, because the Appeal Tribunal cannot re-possess tenants of property once they have been dispossessed of it, regardless of the outcome upon appeal. In King v King [2010] QCATA 84 this factor weighed heavily in favour of the granting of a stay where the dispossessed tenant was strongly asserting an interest in reside in the property for life.
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.
For the reasons given above, I do not consider that the Flegers have a strong prospect of obtaining relief in an ongoing right to reside in the unit.
In any event, this inconvenience is, on the evidence before the Appeal Tribunal, outweighed by the disadvantage to Ms Joubert if the stay is refused, given the substantial evidence of excessive hardship before the Appeal Tribunal of the ongoing circumstance in which Ms Joubert is unable to sell, earn an income from or to occupy the unit while the Flegers remain in possession of it. Notice to leave was first given to leave in 2022, Tribunal processes delayed matters and the Tribunal below gave a generous notice period to the Flegers before the warrant of possession took effect. This has necessarily continued Ms Joubert’s ongoing hardship.
Again, in King v King this factor did not weigh in favour of the property owners, however, the Appeal Tribunal observed that “there is no evidence, however, that any of them would be placed in immediate peril if John King continues to reside in the property while the claim is litigated”.[48] That is not the case here. Ms Joubert and her family are in considerable peril: they are, according to the findings of the Tribunal below, in a situation of “excessive hardship”.
[48]At [35].
What should happen next?
As the stay has been refused, but the stayed warrant has expired, the warrant must be reissued. Section 351 of the RTRAA provides that:
(4) A warrant of possession takes effect on the day stated in the warrant for it to take effect and ends—
(a) if paragraph (b) does not apply—14 days after it takes effect; or
(b) if the tribunal is satisfied that, because of special circumstances, the warrant should continue until a later day stated in the warrant—on the later day.
Examples of special circumstances under subsection (4)(b)—
1 natural disasters, including floods, affecting the area in which the premises are located
2 the remoteness of the premises
I find that the timing of this decision (immediately following the Christmas/New Year Court and office closures), coupled with the facts that the District Court proceedings are on foot, the parties are legally represented and that relief may be sought in that jurisdiction as an outcome of this decision, and also that businesses that might assist the Flegers to remove furniture and belongings from the unit and to secure alternative accommodation might also be closed, give rise to special circumstances that justify continue the warrant for an additional period of seven days, for a total of twenty-one days.
Otherwise, both the Flegers and the Appeal Tribunal ought now to consider whether there is any utility continuing the application for leave to appeal or appeal, having regard to section 47 of the QCAT Act because:
(a)the decision the subject of the application terminated the residential tenancy and provided for a warrant of possession to take effect;
(b)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; and
(c)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.
The Appeal Tribunal is cognisant that “QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings’.”[49]
[49]Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, [13]. See especially Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217.
To that end, directions have been made to permit the Flegers time to withdraw the application for leave to appeal or appeal if they wish to do so, and if they do not, requiring each party to make submissions as to whether the application should be dismissed pursuant to section 47 of the QCAT Act and if not, why not, and the basis upon which it is submitted the application for leave to appeal or appeal should proceed, before the application proceeds.
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