Donaldson v Property Network Lockyer
[2025] QCA 136
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- Donaldson v Property Network Lockyer[2025] QCA 136
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Donaldson v Property Network Lockyer[2025] QCA 136
Donaldson v Property Network Lockyer[2025] QCA 136
[2025] QCA 136
COURT OF APPEAL
BRADLEY JA
Appeal No 3286 of 2025
QCAT No 283 of 2025
REBECCA DONALDSON First Appellant/First Applicant
JODIE HAWKETT Second Appellant/Second Applicant
v
PROPERTY NETWORK LOCKYER Respondent
BRISBANE
MONDAY, 28 JULY 2025
JUDGMENT
BRADLEY JA: This is an application to the Court for the stay of an order made by QCAT in its ordinary tribunal function. The order was made on 26 June 2025. By it, the tribunal decided that a warrant of possession would issue in respect of premises at Laidley North and that the warrant would take effect on 15 July 2025 and remain in effect, to expire on 29 July 2025.
There are some associated elements of the decision. One is that the warrant was to be executed as soon as reasonably practicable after taking effect, and the other was that entry under the warrant could only happen between 8 am and 6 pm. The applicants applied to the QCAT appeal tribunal and obtained an interim order suspending the operation of the warrant from 14 July 2025.
There were some directions associated also with that interim order. The directions provided for written submissions to be made in support of the application for a stay and opposing it, by the interested parties, and that further directions would issue after a determination on the papers about whether to grant a stay. The appeal tribunal made a decision on the stay on the papers on 22 July 2025. The application for a stay was refused, and the interim was vacated. The appeal tribunal decided that the warrant would remain extant from 15 to 29 July 2025, as originally ordered.
The applicants lodged a notice of appeal in the Court of Appeal registry today seeking to appeal the decision of 22 July 2029. That is the decision on the papers refusing the application for a stay and vacating the interim order. That decision was made by Member Chapple. Member Chapple is not a judicial member of the tribunal. The decision is an interlocutory application seeking a stay, so it is not a final decision. Without expressing a final view, it seems unlikely that the applicants can appeal that decision to the Court of Appeal. The order sought today, is simply a stay of the earlier order, that is, the one that provided for the issue of the warrant made on 22 July 2025.
The grounds on which the stay is sought are described as “the ground of mental health and hardship.” From what the applicants said in court this evening, this should be understood as they have, between them, four children, who have some mental health issues, and that one of the two applicants works from home. The loss of the ability to continue to live in the premises would place the children in the position where they did not have a home, and the two applicants would not have a home, so that one of them would not have a home from which to work.
The order was sought today and came before the court in the early evening. That is about 32 days after the order was made. In that time, the applicants say they have made many inquiries and sought other accommodation. There is some material before the Court, which seems to be a screenshot of emails or applications they have made in an attempt to find other accommodation. None has been secured. They currently estimate that it will take between 28 and 30 days to secure another rental property as suitable accommodation.
As I mentioned, the order, which provided for the warrant of possession, gave the warrant effect until tomorrow when it will expire. Mr Rogers, who appeared for the respondent, informed the Court that arrangements have been made for the police to attend the premises at 9.30 am tomorrow to execute the warrant.
In the course of submissions, Mr Rogers mentioned that the warrant, or an earlier version of it, had been executed . I think the evidence is that it was executed about the 14th of July or thereabouts. Apparently, before the interim stay order, anew warrant was issued last Monday in preparation for execution tomorrow, the very last day of the period in which it will be effective. It follows that the applicants will have had about 32 or 33 days to find alternative accommodation.
The other material before the Court is a tenancy history. It records the amounts due from the applicants and the amounts paid by them over the period from 16 October 2024 until 24 July 2025. It shows that they have always been in arrears. The amount by which they have been in arrears has fluctuated from time to time, sometimes being as little as $300, but at other times being as much as $2,700. That peak was reached last week. The applicants have informed the Court that they have made a payment of $2,625 so as to reduce the arrears down to a figure closer to $150. That payment was made today. The weekly rental is still at $525, and there was some discussion about there being an existing water account that remains outstanding for a little less than a thousand dollars.
In the course of the hearing this evening, the applicants have made a couple of suggestions or proposals about terms on which they might remain in the premises. None of those has been accepted by Mr Rogers for the respondent.
The basis upon which a stay order is usually made by this Court is a consideration of the grounds of appeal and their prospects of success, and then a consideration of the harm or prejudice that might befall the parties if a stay is granted or not.
The fundamental difficulty here is that the applicants do not appear to have any prospects of succeeding in an appeal to overturn the order for the issue of the warrant of possession. They do not intend to contest the other part of the order, which, deals with the termination of the residential tenancy agreement. If there is no prospect that the warrant of possession order will be overturned on appeal, there is, plainly, less importance in maintaining the status quo until the appeal is or can be determined.
Really, what the applicants are seeking is an order that will allow them to remain in the premises, notwithstanding the termination of their residential tenancy agreemen, for a further period of 28 or 30 days to secure alternative accommodation. As the proposals put in the course of the hearing indicate, the position is really that the applicants are seeking a further indulgence from the owner through its representative, Mr Rogers, in order to give them time to secure alternative accommodation so that they are not rendered homeless in the interim. It is a request for an indulgence or a charitable act so as to avoid the dire consequences that might befall them if they are required to give up possession to someone executing the warrant at 9.30 am tomorrow.
There is no reason to doubt that the applicants have made genuine efforts over the last 32 days to find alternative accommodation. It is plain that they have not been able to do so. They have thrown themselves on the mercy of the owner of the premises to seek an equivalent period again in order to realise their ambition of finding alternative premises. If the owner, through their representative, is not prepared to grant that indulgence, unfortunately it does not appear that the Court can do otherwise. A party who brings an appeal with little or no prospects cannot rely upon the court to exercise its power to grant an indulgence that the owner of the property is not prepared to give.
Given the poor prospects of the appeal and the uncertainty as to when the applicants might secure alternative accommodation, a grant of a stay today would merely prolong or defer what will be the inevitable result that the applicants will need to find accommodation other than the place where they have been living since October 2024. A stay would delay the respondent’s work of making the premises ready for new tenants.
I have not given any detailed consideration to the effect of staying a warrant that is due to expire tomorrow, in particular, whether it would mean that respondent would need to commence, again, a process to obtain another warrant of possession once the effective period expires. The applicants have remained in possession of the property for more than a month since the order was made. If it were necessary to obtain a new warrant by making a further application, that would be a waste of resources on all parties including the tribunal. I place no weight on this consideration.
The application filed today for a stay of the warrant of possession will be dismissed. Is there anything else? Is there anything else, Mr Rogers? You are on mute again, I am afraid. I think you are still on mute.
RESPONDENT: Nothing more to add. Thank you, your Honour.
BRADLEY JA: Thank you. Adjourn the ‑ ‑ ‑
RESPONDENT: So we will be there tomorrow morning at 9.30 for warrant of possession.
BRADLEY JA: Adjourn the court.