Jones v Jones

Case [2023] QCATA 30

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Jones v Jones [2023] QCATA 30

PARTIES:
RACHEL JONES 

(Applicant)

v  
JESS AARON JONES  

(Respondent)

APPLICATION NO/S:

APL253-21

ORIGINATING APPLICATION NO/S:

MCDT94/21 (Bundaberg)

MATTER TYPE:

Appeals

DELIVERED ON:

5 April 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Forrest SC

ORDERS:

1.     Leave to appeal is granted.

2.     The first instance decision in MCDT 94 of 2021 continues to be stayed until the final determination of this appeal.

3.     This appeal be stayed until 4:00 pm on Friday, 5 May 2023.

4.     If, by 4.00 pm on Friday, 5 May 2023, the dispute between the Applicant and the Respondent has not been resolved by binding agreement between them or, alternatively, if the Applicant has not commenced proceedings in a court of competent jurisdiction to pursue her claim of an equitable interest in the subject real property, this Appeal Tribunal is to be notified and the appeal shall be finalised one way or another thereafter.

5.     If, by 4.00 pm on Friday, 5 May 2023, the Applicant has commenced proceedings in a court of competent jurisdiction pursuing her claim of an equitable interest in the subject real property, this Appeal Tribunal is to be notified by the Applicant and the stay of the appeal will be continued until such time as the Tribunal is thereafter notified that the dispute has been resolved by binding agreement between the Applicant and the Respondent or that it has been determined by a final judgment of a court of competent jurisdiction.

6.     Upon receipt of the notice referred to in paragraph 5 above, the appeal in this matter shall be finally determined one way or another.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – FROM QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – BY LEAVE OF TRIBUNAL – where the Applicant seeks to appeal a decision by a Magistrate sitting as a Tribunal Member in a Minor Civil Dispute – where the Tribunal at first instance terminated a residential tenancy agreement and issued a Warrant of Possession – where there was a basis of thinking that the Applicant had a claim in equity for interest in the property – whether the Tribunal at first instance should have made a final decision in the proceeding on the basis that it did not have jurisdiction to determine an equitable claim, or an interim order, pursuant to s 58 of the Queensland Civil and Administrative Tribunal Act 2009, to give the Applicant a reasonable time to take some formal steps in another jurisdiction to assert her equitable claim – where leave is granted – where the first instance decision is stayed pending final determination

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 58, s 142(3)(a)(i), s 142(3)(b)

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 326

King v King [2010] QCATA 84, applied

Pickering v McArthur [2005] QCA 294, cited

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to…

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AGLC
Jones v Jones [2023] QCATA 30
Case
[2023] QCATA 30
Decision Date

CaseChat Overview and Summary

The case of Jones v Jones involves an application for leave to appeal against a decision made by a Magistrate sitting as a Tribunal Member in a Minor Civil Dispute. The original decision terminated a residential tenancy agreement and issued a Warrant of Possession to the Respondent, who was the Applicant in the original proceedings. The Applicant, a sister to the Respondent, seeks to appeal this decision, arguing she has an equitable claim to an interest in the property in question. The Queensland Civil and Administrative Tribunal granted leave to appeal and stayed the first instance decision pending the final determination of the appeal.

The central legal issue before the Court was whether the Tribunal at first instance should have made a final decision in the proceeding or should have made an interim order, pursuant to section 58 of the Queensland Civil and Administrative Tribunal Act 2009, to give the Applicant a reasonable time to take formal steps in another jurisdiction to assert her equitable claim. The Applicant argued that the Tribunal did not have jurisdiction to determine an equitable claim and should have stayed the proceedings until she had an opportunity to pursue her equitable claim elsewhere.

The Court found that the Tribunal did not have jurisdiction to determine the Applicant’s equitable claim, and it should have made an interim order to give her a reasonable time to pursue her claim in another jurisdiction. The Court considered that the Applicant had a substantial argument on the merits of her claim for an equitable interest in the property, and it would be unjust to determine the tenancy dispute without considering that claim. The Court also noted that the Applicant had already taken some steps to pursue her equitable claim, but it was not yet before a court of competent jurisdiction.

The Court granted leave to appeal and stayed the first instance decision pending the final determination of the appeal. The Court ordered that the appeal be stayed until 4:00 pm on Friday, 5 May 2023. If, by that time, the dispute between the Applicant and the Respondent has not been resolved by binding agreement between them or, alternatively, if the Applicant has not commenced proceedings in a court of competent jurisdiction to pursue her claim of an equitable interest in the subject real property, the Appeal Tribunal is to be notified, and the appeal shall be finalised one way or another thereafter. If, by 4.00 pm on Friday, 5 May 2023, the Applicant has commenced proceedings in a court of competent jurisdiction pursuing her claim of an equitable interest in the subject real property, this Appeal Tribunal is to be notified by the Applicant, and the stay of the appeal will be continued until such time as the Tribunal is thereafter notified that the dispute has been resolved by binding agreement between the Applicant and the Respondent or that it has been determined by a final judgment of a court of competent jurisdiction. Upon receipt of the notice referred to in paragraph 5 above, the appeal in this matter shall be finally determined one way or another.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The first instance decision in MCDT 94 of 2021 continues to be stayed until the final determination of this appeal.

3. This appeal be stayed until 4:00 pm on Friday, 5 May 2023.

4. If, by 4.00 pm on Friday, 5 May 2023, the dispute between the Applicant and the Respondent has not been resolved by binding agreement between them or, alternatively, if the Applicant has not commenced proceedings in a court of competent jurisdiction to pursue her claim of an equitable interest in the subject real property, this Appeal Tribunal is to be notified and the appeal shall be finalised one way or another thereafter.

5. If, by 4.00 pm on Friday, 5 May 2023, the Applicant has commenced proceedings in a court of competent jurisdiction pursuing her claim of an equitable interest in the subject real property, this Appeal Tribunal is to be notified by the Applicant and the stay of the appeal will be continued until such time as the Tribunal is thereafter notified that the dispute has been resolved by binding agreement between the Applicant and the Respondent or that it has been determined by a final judgment of a court of competent jurisdiction.

6. Upon receipt of the notice referred to in paragraph 5 above, the appeal in this matter shall be finally determined one way or another.

Background

Background to the litigation

This is an application for leave to appeal and, if leave is granted, an appeal against the orders of a Magistrate sitting as a Tribunal Member in a Minor Civil Dispute. Those orders were for termination of a residential tenancy agreement for failure to leave pursuant to the Residential Tenancies and Rooming Accommodation Act 2008 (“the RTRAA”) and for the issue of a Warrant of Possession directed to the Queensland Police Service to enter premises and give possession of them to the Respondent to this Application, who was the applicant in the original application. FACTUAL BACKGROUND The Applicant and the Respondent are brother and sister. In or around 2007, a property was purchased at Innes Park in Queensland and registered in the sole name of the Respondent. There does not appear to be any dispute that the Applicant contributed the sum of $60,000 that was put towards the purchase price of the property which was said to be $257,000. The Respondent obtained a first home owners’ grant from government and contributed that to the purchase price also. The balance of the purchase price was obtained by borrowing from a financial institution, whose loan was secured by mortgage registered over the property. The loan and mortgage were in the Respondent’s sole name. The Applicant asserts also that she contributed a further $30,000 towards improvements to the property. After the purchase of the property, the Applicant and the Respondent lived together in the property for several years. Each contributed equally, it is said (by the Applicant, at least) to the mortgage repayments and other outgoings such as the local authority rates during that time. After around four years, the Applicant’s circumstances changed and she moved to Newcastle in New South Wales. Her case is that she was expecting the property to be sold after she moved out, with the Respondent taking care of that. That did not happen. The Respondent continued to live in the property, with others living there too, paying rent, through until around 2018. Around then, the Respondent moved out and permitted other third party tenants to move in and rent the property. In or around November 2020, the Applicant sought to move back to Queensland and back into the property. She sought permission from the Respondent. He presented a formal written General Tenancy Agreement to the Applicant. She did not sign that, but moved back into the property in January 2021. She began paying the Respondent an agreed amount each week, that she asserts was being paid towards the mortgage repayments, rates, water, and other outlays. The Respondent presented the Applicant with another copy of the formal written General Tenancy Agreement. It described himself as the lessor and the Applicant as the tenant. Again, the Applicant did not sign it. They continued to have disagreements and the Respondent asked the Applicant to leave the property. She would not. He served her with a formal Notice to vacate by a certain date. She did not vacate the property. The Respondent then applied to this Tribunal and obtained the Orders that I have identified above on 7 September 2021.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am determining this application on the papers. It has been awaiting decision for many months. Any inconvenience that has caused the parties is regrettable. The First Instance Decision At the hearing of the original application before the Acting Magistrate sitting as the Tribunal in its Minor Civil Jurisdiction, the Applicant appeared for herself, as is usual in this Tribunal. She told his Honour that she was “the rightful owner” of the property and was not living there as a tenant. She told his Honour that although a tenancy agreement had been presented to her, she did not sign it as it would be “ridiculous” to do so, as it was her house. The Applicant began by telling his Honour that she had paid the entire “bond”, but it is clear from the entire transcript that she meant the entire “deposit” to purchase the house. The Applicant told his Honour that she and her brother had a verbal agreement when the house was purchased in 2007 centred around helping each other out. The Applicant told his Honour that she had received a large sum of money when her fiancé, who was in the Army, had died. After having to deal with some litigation commenced against her by his family, she had around $100,000 left. She “blew” $10,000 but decided to invest $90,000. She and her brother got together, she said, and bought the property. She said they agreed that she would put up a deposit of $60,000 and he would use his good credit rating and his secure employment to borrow the balance purchase price. He would also be able to obtain the first home owners’ grant and contribute that. The title of the property was registered in the Respondent’s sole name, but the Applicant told his Honour that pursuant to their verbal agreement she also put another $30,000 into paying for improvements to the property. She said they agreed, nevertheless, that they would later sell the property and when they did, she was to receive the first $75,000 of the proceeds of sale, presumably after the mortgage was paid out, and that any balance would then be split equally between them. The Applicant told his Honour that her brother had not honoured the agreement to sell the property, but that eventually they agreed for her to move back into the property. She conceded that the Respondent had presented her with a Tenancy Agreement that he wanted her to sign, but that she did not sign it, not believing she was a tenant. The Acting Magistrate referred to and relied on the material the Respondent had filed in support of his original Application. His Honour noted that the title was registered in the Respondent’s sole name. He noted that the Respondent had presented the Applicant with a draft Tenancy Agreement for her to sign. His Honour said to the Applicant during the hearing “[b]ased on the material before me I have to evict you”. His Honour said he was satisfied that the Respondent had signed and served on the Applicant a proper notice to leave pursuant to s 326 of the RTRAA. His Honour said he was satisfied he had jurisdiction as the application was statutorily an urgent application and could be heard and determined without the parties having to participate in conciliation through the Residential Tenancy Authority.

Ratio Decidendi

Legal Principle Established

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