Sommers v Bycroft

[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…