| CITATION: | King v King [2010] QCATA 84 |
| PARTIES: | John King (Appellant) |
| v | |
| Sarah Louise King, Lydia Ellen King, Benedict John King, and Samuel David King (Respondents) |
APPLICATION NUMBER: APL097 - 10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Judge Fleur Kingham, Deputy President |
DELIVERED ON: 16 November 2010
DELIVERED AT: Brisbane
ORDERS MADE: | 1. Leave to appeal is granted. 2. The decision in Minor Civil Dispute Number 1121/10 is stayed until 4.00pm 18 February 2011. 3. The Applicant may file in the Tribunal and serve on the Respondents an affidavit which exhibits a claim brought in a court of competent jurisdiction for orders to give effect to the interest he asserts in the subject property by 4.00pm 18 February 2011. 4. If the Applicant files an affidavit in the terms described in order 3, the appeal is stayed pending determination of the claim brought in the court of competent jurisdiction. 5. If the Applicant does not file an affidavit in the terms described in order 3 the appeal will be decided on the papers not before 18 February 2011. |
| CATCHWORDS : | LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES JURISDICTION –where notice to leave without ground issued – where tenant refused to leave – where tenant argued existence of equitable life interest – whether QCAT has jurisdiction to hear equitable claim – whether tenant should have been given opportunity to pursue equitable claim in court of competent jurisdiction – whether proceedings should be stayed Queensland Civil and Administrative Tribunal Act 2009 ss 9, 12(3)(a), 13(2)(b), 28(3)(a), 28(3)(e), 43(1), 43(6), 58, 95(2)(a), 142(3)(a), 145(2), 145(3) Residential Tenancies and Rooming Accommodation Act 2008 s341 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 |
REASONS FOR DECISION
This is an application for leave to appeal from a decision of the Tribunal to terminate a residential tenancy on the basis of a failure to leave.
The original application was brought by Ms Sarah King, Ms Lydia King, Mr Benedict King, and Mr Samuel King; 4 siblings who are the registered proprietors of a residential property in which their father, Mr John King, resides.
It was purchased by the King siblings in 1999. Prior to that date, John King lived in the property with his wife and at least one of the children. Samuel King, who was only 18 when it was purchased, then lived there with his parents.
John King and his wife separated in early 2009. Prior to their separation, the King Siblings said that John King and his wife paid regular amounts of about $200 per week for the property. They also paid the Body Corporate fees and Rates for the property. Sometime after the separation, John King stopped making any payments.
The King siblings issued a notice to leave without grounds on 25 January 2010. John King was given 8 weeks to vacate the premises. He did not do so. The King siblings brought an application in QCAT’s Minor Civil Dispute jurisdiction for…
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- AGLC
- King v King [2010] QCATA 84
- Case
- [2010] QCATA 84
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether QCAT had the jurisdiction to hear an equitable claim such as a life interest in property, and if not, whether the proceedings should have been stayed until the equitable claim was pursued in a court of competent jurisdiction. The court had to determine if the tenant should have been given the opportunity to bring the equitable claim in the appropriate court before QCAT proceeded with the residential tenancy matter.
The court found that QCAT did not have the jurisdiction to hear the equitable claim. The court emphasised the need to preserve the applicant's right to seek equitable relief in the appropriate court. The appeal was granted, and the proceedings were stayed until the applicant had the opportunity to pursue the equitable claim in the correct jurisdiction. The court required the applicant to file an affidavit exhibiting a claim brought in a competent court by a specified date. If the affidavit was filed, the appeal would be stayed pending the outcome of the equitable claim. If not, the appeal would proceed on the papers.
The final orders required the applicant to file an affidavit exhibiting a claim brought in a competent court by a specified date. If the affidavit was filed, the appeal would be stayed pending the outcome of the equitable claim. If the affidavit was not filed, the appeal would proceed on the papers. The decision in the QCAT matter was stayed until a specified date to allow for the equitable claim to be addressed in the appropriate court.
Orders
Orders of the court
1. Leave to appeal is granted.
2. The decision in Minor Civil Dispute Number 1121/10 is stayed until 4.00pm 18 February 2011.
3. The Applicant may file in the Tribunal and serve on the Respondents an affidavit which exhibits a claim brought in a court of competent jurisdiction for orders to give effect to the interest he asserts in the subject property by 4.00pm 18 February 2011.
4. If the Applicant files an affidavit in the terms described in order 3, the appeal is stayed pending determination of the claim brought in the court of competent jurisdiction.
5. If the Applicant does not file an affidavit in the terms described in order 3 the appeal will be decided on the papers not before 18 February 2011.
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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