Jesberg v Jesberg - [2021] QCAT 314

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Jesberg & Anor v Jesberg [2021] QCAT 314

PARTIES: CRAIG JESBERG
SANDRA JESBERG

(applicants)

v

INGRID JESBERG

(respondent)

APPLICATION NO/S:

MCDT00604/20

MATTER TYPE:
Residential tenancy matters

DELIVERED ON:

1 September 2021

HEARING DATE:
23 February 2021

18 May 2021

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Gaffney

ORDERS:
1. The requirement that the Applicants file and personally serve a Form 3 ‘Application for minor civil dispute – minor debt’ is waived.

2. The Respondent is to pay to the Applicants the amount of $3,600 within 14 days from the date of this Order.

CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether minor civil dispute – tenancy dispute – right to reside – whether the tribunal has jurisdiction

LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – JURISDICTION– – where the Respondent mother transferred residential property, which was her home, to the Applicants (her son and daughter-in-law) at an undervalue – where subsequently the parties entered into a ‘Life Tenancy Agreement’ (LTA) in respect of the property – where the parties later entered into a form of lease providing for the payment of rent by the Respondent to the Applicants – whether the Tribunal has jurisdiction to determine the Application as a minor civil dispute – whether the requirements as to form and service of the Application should be waived – where the Applicants alleged that the Respondent had promised to pay rent prior to the transfer of the property and did not object to doing so at the time of signing the LTA – where the lease was executed to enable the Respondent to obtain rent assistance – whether the parol evidence rule applied in relation to the LTA – whether a collateral contract came into existence importing an obligation to pay rent – whether the LTA was executed as a deed or agreement – whether consideration for the LTA was past consideration – whether the LTA conferred a life tenancy on the Respondent or merely a right to reside – whether the LTA amounted to a residential tenancy agreement as defined in the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) whether the execution of the lease varied or replaced the LTA – whether the lease converted the LTA to a residential tenancy agreement – whether the variation was supported by consideration – whether the Respondent was estopped from denying the validity of the lease – whether the lease is unenforceable by reason of duress, undue influence, unconscionable conduct or illegality.

400 George Street (Qld) Pty Ltd v BG International Ltd [2012] 2 Qd R 302

Browning v ACN 149 351 413 (in liq) [2016] QCA 169

Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337

Coleman v Dolman [2011] QCATA 47

Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1

Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471

Gamvrogiannis v Blackshaw [2002] NSWCA 6

Hill…

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 Jesberg v Jesberg

Details

AGLC: Jesberg v Jesberg [2021] QCAT 314
Case: [2021] QCAT 314
Decision Date

CaseChat Overview and Summary

In Jesberg v Jesberg, the Queensland Civil and Administrative Tribunal (QCAT) was asked to determine the legal relationship between the parties, specifically whether a residential tenancy agreement existed, and to decide if the Respondent, Ingrid Jesberg, was liable to pay rent to the Applicants, Craig and Sandra Jesberg. Ingrid had moved into a property owned by Craig and Sandra, following an agreement that she would reside there for life in return for a transfer of the property at an undervalue. The dispute arose when Craig and Sandra sought to enforce a lease agreement, requiring Ingrid to pay rent.

QCAT found that the Life Tenancy Agreement (LTA) did not include a provision for rent, but that the parties had orally agreed that Ingrid would pay rent. The Tribunal concluded that the LTA did not constitute a residential tenancy agreement as defined by the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), because it provided more protection than a mere right to occupy. The lease, executed later, varied the LTA to require Ingrid to pay rent of $400 per fortnight. However, the Applicants provided no new consideration for Ingrid's promise to pay rent, and the lease was ambiguous, lacking an end date and omitting most terms.

Despite these issues, QCAT found that the lease was enforceable because Ingrid was estopped from denying her obligation to pay rent, based on the parties' mutual assumption and conduct. QCAT also found that the lease was not illegal, as the payment of rent was a genuine condition of Ingrid's occupancy. Consequently, Ingrid was ordered to pay the Applicants the amount of $3,600 within 14 days from the date of the decision.

Orders