QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Joubert v Fleger & Fleger [2023] QCAT 382
PARTIES:
KIM JOUBERT (applicant)
v
FLORENCE FLEGER (first respondent)
HANS FLEGER
(second respondent)
APPLICATION NO/S:
T167/23
MATTER TYPE:
Residential tenancy matters
DELIVERED ON:
21 September 2023
HEARING DATE:
1 June 2023
HEARD AT:
Southport
DECISION OF:
Adjudicator Alan Walsh
ORDERS:
1. The Residential tenancy agreement between the parties be terminated as from midnight on 21 November 2023 on the ground of excessive hardship.
2. A Warrant of Possession to issue authorising a police officer to enter the premises at 83/25 SURF PARADE BROADBEACH QLD 4218.
3. The Warrant shall take effect on 22 November 2023 and remain in effect for 14 days, to expire at 6:00pm on 5 December 2023.
4. The Warrant to be executed at the request of the Applicant as soon as reasonably practicable after taking effect.
5. Entry under the Warrant shall only be between the hours of 8:00am and 6:00pm.
CATCHWORDS:
CIVIL LAW – CIVIL TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where applicant applied to terminate residential tenancy for excessive hardship – where respondents aunt and uncle by marriage of applicant – where respondents denied residential tenancy subsists – where in alternative respondents requested adjournment of hearing or stay of decision – whether adjournment or stay appropriate – whether termination order appropriate – whether compensation to respondents appropriate
CIVIL LAW – CIVIL TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – ORAL AGREEMENT – JURISDICTION – where respondents gave applicant $300,000 toward purchase price of home for all to live in – where oral agreement by which respondents meanwhile given occupation of residential unit owned by applicant pending purchase of home – where applicant purchased home with granny flat for the purpose – where respondents failed to vacate residential unit – whether oral agreement a residential tenancy agreement – whether applicant lessor and respondents tenants
CIVIL LAW – CIVIL TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – JURISDICTION – OTHER PROCEEDINGS – where applicant and respondents in simultaneous litigation in District Court of Queensland – where applicant there claims declaration that gift condition satisfied and respondents counterclaim for equitable estoppel from eviction and a remedial constructive trust – whether QCAT has exclusive jurisdiction in application for residential tenancy termination – whether equitable estoppel against residential tenancy eviction within the exclusive jurisdiction of the Tribunal to adjudicate – whether applicant’s QCAT proceedings should defer to respondents counterclaim for equitable remedies in the District Court
District Court of Queensland Act 1967 (Qld), s 3, s 5, s 68, s 69
Domestic and Family Violence Protection Act 2012 (Qld), s 136, s 139, s 140, s 141
Property Law Act 1974 (Qld), s 146
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4, s 13
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 8, s 9, s…
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- AGLC
- Joubert v Fleger & Fleger [2023] QCAT 382
- Case
- [2023] QCAT 382
- Decision Date
CaseChat Overview and Summary
The court considered the principles of equitable remedies and the potential impact on the parties' rights if the tenancy was terminated. The court found that the Fleger’s equitable claims and remedies remained intact if they pursued their case in the District Court, including seeking an interim injunction against dispossession. The court highlighted that unlike the situation in King, where it was determined that none of the owners of the property would be in immediate peril if the tenant continued to reside in the property while their claim was litigated, Ms Joubert faced significant risk if the tenancy continued. The court concluded that returning possession to Ms Joubert might preserve her asset in the unit by avoiding the risk of a mortgagee in possession. Consequently, the court decided against deferring the decision or staying the termination order pending the District Court proceedings, and ordered the tenancy to be terminated in two months.
In its reasoning, the court also noted the significant delays already incurred in the proceedings, partly due to the parties' conduct and partly due to external factors. The court emphasized the importance of ensuring proceedings are as quick as is consistent with achieving justice, and determined that further delay was not warranted. The court also considered whether to order compensation for the tenants but decided against it as the tenants were represented by counsel and no request for compensation was made. The court ordered the tenancy to end in two months and authorized the issue of a warrant of possession fourteen days after the tenancy ends.
Orders
Orders of the court
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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
In any event, Mr and Mrs Fleger’s equitable remedies remain intact if they make out their case in the District Court, including by interim injunction against dispossession in the District Court proceedings. Their equitable claims and remedies are untrammelled by this Tribunal’s decision if they show cause there.Termination considerations The tenancy ought not be allowed to continue indefinitely in the circumstances confronting Ms Joubert. Otherwise, Mr and Mrs Fleger will probably be ousted by a mortgagee in possession. Unlike the situation in King where, in the appeal, it was held that none of the owners of the property would be in immediate peril if John King continued to reside in the property while his claim was litigated[64] (in a Court with equitable jurisdiction), the exact opposite is the case for Ms Joubert here. Ironically, returning possession to Ms Joubert may well preserve her asset in the unit by avoiding the jeopardy, against which asset Mr and Mrs Fleger seek security by way of charge or lien pending equitable compensation after an accounting for the gift of $300,000, and work to their advantage if the equitable remedies are granted in the District Court. [64]King supra, at [35]. Termination of their tenancy will not deprive Mr and Mrs Fleger of their District Court claim for an accounting by Ms Joubert. Nor, if so advised, will they be precluded from applying in the District Court for an interim order for the preservation of Ms Joubert’s asset in the unit as security for repayment of a debt pending ascertainment of what (if anything) the indebtedness is of Ms Joubert to them in the District Court. Those rights and procedures cannot be affected by any termination order that I make. It follows, notwithstanding the stay principles to which Mr Dudley referred, that there is no proper discretionary basis on which I should defer a decision or stay a termination order and warrant of possession pending the finalisation of the District Court proceedings and, of course, any appeal that might follow, as he submitted should happen. For completeness in this regard, there has already been significant delay in finalisation of these QCAT proceedings, much of it occasioned by the way the parties have conducted themselves in litigation in two jurisdictions simultaneously, and in the Magistrates Court previously. Also, beyond the parties’ control and my own, a two-month hiatus in delivery of requested transcript has unfortunately added to delay in the finalisation of this case. Acknowledging the combination of factors contributing to delay thus far including those just mentioned, I am mindful of the function of this Tribunal under the QCAT Act to ensure proceedings are as quick as is consistent with achieving justice.[65] Inconsistently with that, deferral of a decision or further adjournment will add unacceptably to yet additional delay. So too will a stay order. Neither is necessary or appropriate. 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 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. The section is silent on whether I may order compensation of my own motion, where no request is made for it, though that may be appropriate in some cases where parties are unrepresented. Mr Dudley of Counsel said at the hearing on 1 June 2023 that no compensation was sought.[66] 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,[67] none is sought.[66]T1-19, l 1-10.[67]Ibid.