Sommers v Bycroft

Case [2019] QCATA 130


QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Sommers v Bycroft [2019] QCATA 130

PARTIES: MARY LYNNE SOMMERS

(applicant\appellant)

v

DANIEL PETER BYCROFT

(respondent)

APPLICATION NO/S:

APL187-19

ORIGINATING APPLICATION NO/S:

MCDT713-19 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

30 August 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

1.   The application to stay the decision dated 21 June 2019 in Minor Civil Dispute MCDT713-19 (Southport) is refused.

2.   The Warrant of Possession issued on 21 July 2019 is re-instated to take effect on 30 September 2019 and remain in effect for 14 days, to expire at 6:00pm on 14 October 2019.

3.   The warrant is to be executed as soon as reasonably practicable after taking effect.

4.   Entry under the Warrant shall be between the hours of 8:00am and 6:00pm only.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where tenancy terminated on grounds of excessive hardship – where warrant of possession ordered to issue –where application to stay the order made in the minor civil disputes jurisdiction – where interim stay granted until the application to stay is determined –  whether a stay should be granted until the application for leave to appeal or appeal is determined

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

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685

Berry v Green [1999] QCA 213

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Daniel Bycroft represented by Bell Legal Group

APPEARANCES:

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

REASONS FOR DECISION

  1. Mary Lynne Sommers has been living in a property the subject of these proceedings for several years. The property belonged to Ms Sommers’ mother who passed away some ten years prior. The property along with other assets form part of the deceased estate. Ms Sommers is one of three beneficiaries to benefit from the deceased’s estate.

  2. The respondent filed an application in the Tribunal’s minor civil disputes jurisdiction for a termination order on the grounds of excessive hardship and a warrant of possession. One of the contentions raised by the respondent at first instance and in support of the application was that local Council may resolve to sell the deceased’s property by public auction pursuant to local government regulation due to the length of time that the water and rates charges have remained overdue. 

  3. On 21 June 2019, an Adjudicator sitting in the minor civil disputes jurisdiction found that there is a residential tenancy agreement concerning the property between the parties and terminated the agreement as from midnight on 20 July 2019 on the grounds of excessive hardship. The Tribunal also ordered that a warrant of possession issue to give vacant possession of the property to the respondent.

  4. Ms Sommers applied for leave to appeal the Tribunal’s decision. Ms Sommers also applied for a stay of the learned Adjudicator’s…

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AGLC
Sommers v Bycroft [2019] QCATA 130
Case
[2019] QCATA 130
Decision Date

CaseChat Overview and Summary

The case of Sommers v Bycroft involved the tenant, Sommers, appealing against the decision of the Magistrates Court of Queensland to terminate their tenancy due to excessive hardship, and the subsequent warrant of possession issued in favour of the landlord, Bycroft. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT), which had to decide whether to grant a stay of the proceedings pending the outcome of the appeal. The central issue was whether a stay should be granted until the application for leave to appeal or the appeal itself was determined. The QCAT had to balance the principles of justice and fairness against the rights and interests of both parties.

The QCAT examined the general principles regarding the grant or refusal of a stay of proceedings, taking into account the nature of the case and the potential consequences of granting or refusing the stay. The court considered the impact on both parties, the likelihood of success of the appeal, and the balance of convenience. The QCAT determined that the principles did not favour granting a stay in this case. The tribunal found that the appeal did not present a strong case, and the balance of convenience favoured the landlord, who had a right to possession of their property. The QCAT was also mindful of the need to maintain the efficiency and finality of the judicial process.

The application to stay the decision of the Magistrates Court was refused by the QCAT. Consequently, the warrant of possession issued on 21 July 2019 was reinstated and would take effect on 30 September 2019. The warrant was to remain in effect for 14 days, expiring at 6:00pm on 14 October 2019. The QCAT ordered that the warrant was to be executed as soon as reasonably practicable after taking effect, and entry under the warrant was to be between the hours of 8:00am and 6:00pm only. This decision reflected the QCAT's consideration of the principles of justice, fairness, and the rights and interests of both parties involved.

Orders

Orders of the court

1. The application to stay the decision dated 21 June 2019 in Minor Civil Dispute MCDT713-19 (Southport) is refused.

2. The Warrant of Possession issued on 21 July 2019 is re-instated to take effect on 30 September 2019 and remain in effect for 14 days, to expire at 6:00pm on 14 October 2019.

3. The warrant is to be executed as soon as reasonably practicable after taking effect.

4. Entry under the Warrant shall be between the hours of 8:00am and 6:00pm only.

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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