Hrs v NKW - [2022] QCATA 169

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

HRS v NKW [2022] QCATA 169

PARTIES:

HRS

(appellant)

v

NKW

(respondent)

APPLICATION NO/S:

APL112/22

ORIGINATING APPLICATION NO/S:

MCDT0013/22 (Maryborough)

MATTER TYPE:

Appeals

DELIVERED ON:

9 December 2022

HEARING DATE:

9 December 2022

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Deputy President

ORDERS:

1.   The decision in Minor Civil Dispute Number 0013/22 is stayed until 4.00pm on 17 January 2023.

2.   The appellant may file in the Tribunal and serve on the respondent an affidavit which exhibits a claim brought in a court of competent jurisdiction for orders to give effect to the interest she asserts in the subject property by 4.00pm on 17 January 2023.

3.   If the appellant files an affidavit in the terms described in order 2 the issue of leave to appeal is stayed pending determination of the claim brought in the court of competent jurisdiction and the parties must advise the Tribunal within 14 days of any final determination of those claims having been made.

4.   If the appellant does not file an affidavit in the terms described in order 3 the further consideration of the application for the stay and for leave to appeal will be decided on the papers not before 17 January 2023.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where appellant is appealing a decision issuing a warrant of possession for the residential premisses where she was living – where the Tribunal made an interim order suspending the operation of the warrant – where neither party has filed material since in relation to the stay application – where the Tribunal is satisfied there is a reasonable case to be argued – whether the balance of convenience favours the grant of a stay

Domestic and Family Violence Protection Act 2012 s 37

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 58, 142, 145

Residential Tenancies and Rooming Accommodation Act 2008 s 8, 12, 13, 286, 340

Coleman v Dolman [2011] QCATA 47

Crinis v Ray White Paradise Group [2016] QCATA 90

Hessey-Tenny and Anor v Jones [2018] QCATA 131

King v King [2011] QCATA 84

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

The appellant seeks leave to appeal a decision of a magistrate, sitting as a QCAT member in Maryborough. That order, made on 26 April 2022, was to issue a termination order in respect of premises at 49 Bronze Street Aldershot (Bronze Street) on the ground of failure to leave and, consequently, the issue of a Warrant of Possession authorising a police officer to enter Bronze Street, such warrant to take effect on 26 April 2022 and to remain in effect for 14 days, to expire at 6pm on 10 May 2022.
On 6 May 2022 the Tribunal made an interim stay order suspending the…

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 Hrs v NKW

Details

AGLC: Hrs v NKW [2022] QCATA 169
Case: [2022] QCATA 169
Decision Date: 9 December 2022

CaseChat Overview and Summary

In this matter, the appellant Hrs appeals against a decision made by the Tribunal, which issued a warrant of possession for the residential premises where she resided. The respondent, NKW, is the party against whom the warrant was issued. The Tribunal had previously made an interim order suspending the operation of the warrant, and since then, neither party has filed any new material in relation to the stay application. The Tribunal is satisfied that there is a reasonable case to be argued by the appellant, and the court must determine whether the balance of convenience favours the grant of a stay.

The court was required to consider the principles governing the grant or refusal of a stay of proceedings in this case. The appellant argued that the balance of convenience favoured a stay, while the respondent contended that there were no grounds for a stay. The court had to weigh the competing interests of both parties and determine whether a stay was warranted in the circumstances. Additionally, the court had to consider the implications of the appellant filing a claim in a court of competent jurisdiction for orders to give effect to her interest in the subject property.

The court found that the balance of convenience favoured the grant of a stay. The appellant had demonstrated that she had a reasonable case to be argued, and the Tribunal was satisfied that there was a reasonable prospect of success on the merits of the appeal. The court also considered the potential prejudice to both parties if the stay was not granted, and found that the appellant's interest in the property outweighed the respondent's interest in enforcing the warrant of possession. The court ordered that the decision in the minor civil dispute be stayed until 4.00pm on 17 January 2023. The appellant was given the opportunity to file an affidavit exhibiting a claim brought in a court of competent jurisdiction for orders to give effect to her interest in the subject property, and if she did so, the issue of leave to appeal would be stayed pending the determination of those claims. If the appellant did not file such an affidavit, the further consideration of the application for the stay and for leave to appeal would be decided on the papers not before 17 January 2023.

The court ordered that the decision in the minor civil dispute be stayed until 4.00pm on 17 January 2023. The appellant was given the opportunity to file an affidavit exhibiting a claim brought in a court of competent jurisdiction for orders to give effect to her interest in the subject property. If the appellant filed such an affidavit, the issue of leave to appeal would be stayed pending the determination of those claims, and the parties were required to advise the Tribunal within 14 days of any final determination of those claims having been made. If the appellant did not file such an affidavit, the further consideration of the application for the stay and for leave to appeal would be decided on the papers not before 17 January 2023.

Orders

Orders of the court

1. The decision in Minor Civil Dispute Number 0013/22 is stayed until 4.00pm on 17 January 2023.

2. The appellant may file in the Tribunal and serve on the respondent an affidavit which exhibits a claim brought in a court of competent jurisdiction for orders to give effect to the interest she asserts in the subject property by 4.00pm on 17 January 2023.

3. If the appellant files an affidavit in the terms described in order 2 the issue of leave to appeal is stayed pending determination of the claim brought in the court of competent jurisdiction and the parties must advise the Tribunal within 14 days of any final determination of those claims having been made.

4. If the appellant does not file an affidavit in the terms described in order 3 the further consideration of the application for the stay and for leave to appeal will be decided on the papers not before 17 January 2023.

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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