Joubert v Fleger[2023] QCAT 382

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This is a case is about possession and dispossession. When it comes to real property, there is an old saying that possession is nine tenths of the law.
2. [2]
   Ms Joubert and Mr and Mrs Fleger are embroiled in an intractable family disagreement, simultaneously litigating different aspects of the same dispute in the minor civil dispute jurisdiction of the Queensland Civil and Administrative Tribunal (QCAT) and the District Court of Queensland.
3. [3]
   QCAT is a Tribunal of law^[1] and a court of record, with jurisdiction to hear and determine certain categories of civil disputes, as well as exercising administrative jurisdiction according to the terms of its founding Statute – as the Tribunal’s full name suggests. Except the President, the Deputy President, and Judicial Members, its members and adjudicators are not Judges. Other than to the extent of qualified statutory power of injunction and other powers equivalent of those in equity at common law, the Tribunal has no jurisdiction in equity even when constituted by a Judicial Member.^[2]
4. [4]
   QCAT is vested with exclusive jurisdiction to adjudicate applications to terminate residential tenancies in the minor civil dispute category, except under the Domestic and Family Violence Protection Act 2012 (Qld)^[3] where the Magistrates Court of Queensland has concurrent jurisdiction. There is no domestic violence element in the present case. The District Court of Queensland,^[4] on the other hand, is a Court of law^[5] with jurisdiction that includes jurisdiction in equity.^[6] Jurisdictional differences between the Tribunal and the Court are important to understand, particularly the delineation of the respective jurisdictions and powers. I will return to this later.
5. [5]
   An indicator of the complexity of the dispute in this case is that the parties are represented by solicitors and Counsel in both jurisdictions, in this minor civil dispute jurisdiction – with leave, a rare occurrence. Though by statutory definition described as “minor” in a jurisdictional sense, it is a major dispute for the parties.

Application

6. [6]
   Ms Joubert applies on ground of excessive hardship under section 295 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the RTRAA) for termination of what she asserts is a residential tenancy agreement by which her aunt and uncle by marriage, Mrs and Mr Fleger, occupy her oceanfront unit (the unit) at Surf Parade, Broadbeach, on the Gold Coast. In the alternative, Ms Joubert applies under section 350(1) of the RTRAA for a warrant of possession if there is no residential tenancy agreement in effect for the premises where her aunt and uncle now, she says, occupy them without her consent as owner.

Threshold issue – Jurisdiction

7. [7]
   The provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) intersect with the provisions of the RTRAA, an enabling Act, which confers jurisdiction and powers on the Tribunal in its minor civil dispute jurisdiction to adjudicate residential tenancy disputes. The threshold issue is whether I have jurisdiction because this is a residential tenancy dispute within the meaning of the term in RTRAA and the QCAT Act.
8. [8]
   If there is jurisdiction, section 343 of the RTRAA gives the Tribunal adjudicatory power and discretion to order termination of a residential tenancy agreement if satisfied the Applicant has established a termination ground. Section 350(2) on the other hand does not confer a discretion. The Tribunal must issue a warrant of possession if it makes a termination order on an application other than by a tenant. A warrant of possession provides the backup for enforcement in the event a tenant does not leave as ordered. However, and this is important for what will come later in these reasons, it needs to be understood that in practice the Queensland Police Service usually will not act on a warrant of possession unless the beneficiary of the warrant (the person or entity entitled to possession) specifically requests it.
9. [9]
   Where the Tribunal makes a termination order for excessive hardship, section 350(3) provides that as well as issuing a warrant of possession the Tribunal may make any other order it considers appropriate including, for example – an order that the Applicant pay compensation to the other party for the loss of tenancy.
10. [10]
    In conjunction with those provisions of the RTRAA, section 13(1) of the QCAT Act requires that I make orders that I consider fair and equitable to parties to resolve a minor civil dispute, including a dismissal order if considered appropriate.

Facts

11. [11]
    The Respondents are aged pensioners. Mr Fleger is 81 years of age, Mrs Fleger is 13 years younger. Their age has a bearing on discretion in this case, one of many factors to be considered. They occupy Ms Joubert’s unit and have done since February 2017 in terms of an oral agreement by which they (then) gifted Ms Joubert $300,000.00 from the proceeds of sale of their Brassall property^[7] to be applied in due course towards the purchase of a property in which the extended family could all live together; and they meanwhile would (and did) with Ms Joubert’s permission move into the unit pending that occurring (the condition).  The condition was a term of the oral agreement.
12. [12]
    In a statutory declaration^[8] made on 18 February 2017 to provide to a prospective mortgagee to fund acquisition of a property for the agreed purpose, Mrs Fleger said nothing about the condition but declared true that “the money is a gift to assist in the purchase of a home. I am not expecting this money to be paid back to myself or refunded back to me at any time.” The gift in terms of the statutory declaration was not consideration for acquisition by Mrs and Mr Fleger or either of them of a proprietary interest in the unit.
13. [13]
    In consultation with Mr and Mrs Fleger, in 2017 Ms Joubert bought and settled on a property at Carrara that would be suitable for the agreed purpose because it included what these days is referred to as a “granny flat” for separate cohabitation.  However, Mr and Mrs Fleger declined to move into the Carrara property. There is evidence, partly hearsay but to which I may have regard because I am not bound by the rules of evidence, that Mr and Mrs Fleger told Ms Joubert’s cousin at some point that they did not want to become “glorified babysitters”^[9] if they ended up moving in with her. Ms Joubert reported this to Mr and Mrs Fleger, who said that the cousin was a liar.
14. [14]
    Ms Joubert subsequently sold the Carrara property but did not repay Mr and Mrs Fleger the amount of $300,000, she instead bought and sold other property after that, again offering on another occasion that Mr and Mrs Fleger move in, which they again declined. Further complicating matters is that there was a falling out in mid-2022 when Mr Houldsworth, Ms Joubert’s husband, told Mr Fleger that he was to move out of the unit. Ms Joubert told Mrs Fleger that she wanted to rent the unit out, that Mrs Fleger (only) could move in with her and Mr Houldsworth^[10] in a property at the time rented by them elsewhere. Mr Fleger acquiesced in the request in that he looked (unsuccessfully) for property to rent elsewhere. After that, he and Mrs Fleger decided that they did not want to live apart^[11] and once again declined to move out.
15. [15]
    Mr and Mrs Fleger have never paid rent to Ms Joubert, though they improved the unit by buying and having installed a new oven at and paying for the cost of repainting the unit internally and installing curtains. They currently do not pay outgoings for the unit but did previously pay body corporate levies and other outgoings until Ms Joubert gave them notice in about August 2022 that she wanted to move back into the unit and that they should leave. She redirected all invoicing of outgoings to herself to pay direct.
16. [16]
    Ms Joubert no longer owns real estate other than the unit. She is now a university student. Her financial circumstances and those of Mr Houldsworth, a veteran who suffers from post-traumatic stress syndrome, took a turn for the worse in 2022 and have continued to deteriorate. Together with Mr Houldsworth, Ms Joubert continues to pay rent to live elsewhere with their children while the dispute remains unresolved. There is a mortgage over the unit which Ms Joubert must continue to repay, as well as the body corporate levies, rates, and taxes for the unit.
17. [17]
    Mr and Mrs Fleger have never made mortgage repayments on the unit. Mr and Mrs Fleger’s refusal to vacate the unit prevents Ms Joubert from returning it to the holiday letting pool administered by the building manager, where it was prior to her uncle and aunt moving in during February 2017. In the period from that date to 1 June 2023, the unit would have returned $192,000 to Ms Joubert had it been left in the holiday let pool,^[12] however it has returned nothing but increasing indebtedness to her.
18. [18]
    Ms Joubert is therefore caught in a debt trap, she is at appreciable risk of losing the unit to a Bank if it takes possession for a mortgagee sale. Her financial predicament is set out in paragraphs 45 to 63 of Ms Joubert’s affidavit sworn on 6 February 2023 filed in the District Court, a copy of which is filed in these proceedings, supported by exhibits. See also Ms Joubert’s affidavit sworn 17 May 2023 filed in these proceedings, paragraphs 3 to 42. None of that evidence is disputed by Mr and Mrs Fleger. Neither has given any evidence of their own assets, liabilities, income, and expenditure currently or recently.

Court Proceedings

19. [19]
    The District Court proceedings, and Magistrates Court proceedings before, further complicate matters. It is necessary that I explain the history here and what they involve.
20. [20]
    Ms Joubert originally commenced proceedings in the Magistrates Court of Queensland at Brisbane on 4 November 2022 in M2151/22, seeking an order for possession of the unit and a warrant of possession pursuant to section 146 of the Property Law Act 1974 (Qld).  I accept that she was mis-advised in that respect by her solicitors at the time.^[13] They apparently thought it the correct jurisdiction and it would have been if commenced by Complaint and Summons for possession, but not if the tenancy were a residential tenancy^[14] which Ms Joubert asserts it is.
21. [21]
    Mr and Mrs Fleger filed a defence and counterclaim in the Magistrates Court proceedings on 5 December 2022.  The proceedings were subsequently transferred to the District Court, to be heard concurrently with a Claim filed by Ms Joubert there. Later, by amendment and deletion, Ms Joubert abandoned her claim in the District Court for possession and a warrant of possession of the unit and filed her application to QCAT on 16 February 2023 for termination of a residential tenancy.
22. [22]
    Amended pleadings^[15] in the District Court recently closed. In them, Ms Joubert claims a declaration that a conditional gift of $300,000.00 received in February 2017 from Mr and Mrs Fleger to buy a property for the extended family (including her uncle and aunt) to live in was satisfied by her purchase of a (the) property at Carrara on the Gold Coast (the Carrara property) under a contract that settled on 6 April 2017. Ms Joubert pleads that the Carrara property included a separate self-contained flat, into which her aunt and uncle had agreed they would move, but that they reneged on the agreement, and Mr Fleger contended that he and his wife are entitled to live their life out in Ms Joubert’s unit.
23. [23]
    Mr and Mrs Fleger counterclaim a remedial constructive trust, or equitable compensation secured by charge or lien over Ms Joubert’s legal title to the unit until repaid and assert an estoppel against Ms Joubert from denying their indefinite right of residency in the unit until an accounting for the $300,000.00 paid by them to her. At the Tribunal hearing on 1 June 2023, Mr Dudley of counsel for Mr and Mrs Fleger summarised the essence of what is admitted and disputed in both the District Court and the Tribunal. He said:

I think the crux of the dispute is this, so what is agreed between the parties is that there was $300,000.00 given on the understanding that they could live in the unit until a suitable property was found for all of them to live. That’s not in dispute. They moved into the property, and they’ve paid the $300,000. It is then also not in dispute that they were trying to find a property. There is where the dispute arises. As I understand it, the applicant says that she found a suitable property for them to move into; it’s the Carrara property. And she bought the Carrara property using the Respondents’ money. And she invited them to come into the property, and they refused and said they wanted to keep staying in the unit. That’s her case.

Our case is that a second agreement was reached, which was that they weren’t able to find a suitable property, and so the applicant bought the Carrara property, which she understood as not being suitable for them. There was an agreement that she could buy it for herself, and in the interim we’d get to continue living in her unit, until such time as she ultimately bought a property that was suitable. And that never came, and so the respondents are still residing in the unit and have never had their money given back. That’s, I think, the crux of the dispute.^[16]

24. [24]
    I pause here to note from Mr Dudley’s summary that the stated term or condition of the disputed second (oral) agreement alleged by Mr and Mrs Fleger is essentially the same as in the original oral agreement between the parties. Mr Trewavas for Ms Joubert agreed with Mr Dudley’s summary of the admitted and disputed facts^[17] and submitted that there is a residential tenancy by application of the provisions of the RTRAA and it should be terminated. Mr Dudley disagreed. He submitted that it is not a residential tenancy because it lacked any of the indicia of one, alternatively that if I find it is a residential tenancy then I should stay proceedings in the Tribunal pending the outcome of the District Court case.

Legislation – the RTRAA and RTRAR

25. [25]
    One must look to the provisions of the RTRAA to determine whether this is a residential tenancy dispute. The Act, together with its related regulation, the Residential Tenancies and Rooming Accommodation Regulation 2009 (Qld) (RTRAR), is complex legislation. It is often assumed that a residential tenancy is one involving occupation of a residence in consideration of payment of rent. A tenant is described in the Glossary of terms^[18] on the website of the Residential Tenancies Authority as a person who is renting a property and whose responsibilities include payment of rent. However, careful analysis reveals that is not necessarily the case and that the scope and reach of the RTRAA and RTRAR is far broader than first meets the eye.
26. [26]
    Under the Act, a lessor is the person who gives to another the right to occupy residential premises under a residential tenancy agreement^[19] and a tenant is the person given that right.^[20] A residential tenancy is the right to occupy residential premises under a residential tenancy agreement^[21] which in turn is defined as one under which a person gives another person, exclusively or not, a right to occupy residential premises as a residence,^[22] whether partly or wholly written, oral, or implied, or a combination of any of those.^[23] Paradoxically however, elsewhere the Act provides that a residential tenancy agreement must be in writing.^[24] It must amongst other things include^[25] the standard terms for the agreement^[26] and any special terms. The standard terms include, amongst other things, the way rent must be paid.^[27]
27. [27]
    However, in apparent contradiction, section 4 in Part 2 (Standard terms and replacement terms) Division 1 of the RTRAR prescribes that Part 2 does not^[28] apply to a residential tenancy agreement that is not in writing. Nothing affects the enforceability of an agreement that is not in writing.^[29] Nowhere in the Act or the regulation is there any provision that restricts or proscribes a lessor’s statutory right (amongst others) to apply to terminate a residential tenancy agreement that is not in writing on a ground available under the Act, for example – for excessive hardship,^[30] a broad undefined concept in respect of which each case turns on its own merits,^[31] the ground relied on by Ms Joubert in the present proceedings for a termination order.
28. [28]
    Section 54(1) of the RTRAA provides that if, under the Act, a duty is imposed on, or an entitlement is given to, a lessor or tenant, the duty or entitlement is taken to be included as a term of the residential tenancy agreement. None of the exclusions from application of the Act set out in section 29(2) of the RTRAA apply on the facts of this case. Application of the provisions of the Property Law Act 1974 (Qld) to the RTRAA is excluded.^[32]

Residential Tenancy in law

29. [29]
    Applying the provisions of the RTRAA and RTRAR to which I have referred to the facts, I find Ms Joubert is the lessor to Mr and Mrs Fleger of the unit at Surf Parade, Broadbeach, that they are her tenants, that the oral agreement by which she let them into occupation in 2017 is by statutory definition a residential tenancy agreement, and that the agreement was subject to the condition.^[33] It is irrelevant that Mr and Mrs Fleger have never paid rent and that there are none of the usual indicia of a conventional residential tenancy by which a tenant pays rent in consideration of a right of occupation. As Mr Trewavas submitted, which I accept, the RTRAA does not require intent to create a residential tenancy. It is also irrelevant that the parties did not turn their minds to this, when reaching the agreement. The test is simply whether the arrangement by which Mr and Mrs Fleger came to occupy the unit is caught by the provisions of the RTRAA and RTRAR to which I have referred. The test is satisfied, so the Tribunal has jurisdiction to decide the residential tenancy dispute.

Excessive Hardship

30. [30]
    I find that Ms Joubert has proved excessive hardship as the ground for termination of the tenancy. She has all the liabilities of ownership but none of the benefits and is in dire financial straits that amount to excessive hardship. The breakdown of the family relationship is irretrievable. Despite the best intentions and family motivation at the outset, a suitable property for all to live will most likely never be found. The condition will never be satisfied. Particularly having regard to their age and pensioner status, I also accept that significant hardship and dislocation will be visited on Mr and Mrs Fleger^[34] in the event of termination, one of the factors that I must consider in the exercise of discretion on whether to terminate the tenancy and, if so, when. Tenants’ excessive hardship is not however a statutory defence to an application to terminate a residential tenancy.

Submissions

31. [31]
    Counsel for the parties referred me to the Appeal Tribunal decision of (then) Deputy President Kingham in King v King [2010] QCATA 84 (King), the reasoning in which was recently followed in Jones v Jones [2023] QCATA 30 (Jones), but for differing reasons.
32. [32]
    It is therefore appropriate that I precis what King was about.
33. [33]
    The appellant, John King, asserted a life interest in the property owned by his children of a marriage that had ended. Prior to separation, Mr and Mrs King paid regular amounts of about $200 per week for the property as well as body corporate fees but sometime after the separation Mr King stopped making any payments. The children issued a Form 12 Notice to leave and applied to the Tribunal to terminate what they said was his tenancy. At the hearing, Mr King argued that a signed tenancy agreement was “not valid”^[35] and that he held the equitable interest in the property, however an Adjudicator made a termination order.
34. [34]
    Deputy President Kingham DCJ, as she then was, granted Mr King leave to appeal and directed the filing of further evidence, the opportunity for him to commence proceedings in a Court with equitable jurisdiction, and an interim stay on certain conditions, the appeal to be further heard in due course. Her Honour observed that the Adjudicator at first instance was satisfied that some form of tenancy had existed since May 1997,^[36] that he correctly determined QCAT did not have jurisdiction to determine John King’s claim in equity;^[37] however that did not mean that evidence given about that matter was not relevant to his function as an adjudicator on this claim,^[38] that the Adjudicator erred in deciding the only cogent evidence was that a residential tenancy existed and that the equitable claim had nothing to do with the tenancy claim,^[39]  that the Adjudicator failed to pay due regard to other evidence given about the circumstances in which the property was purchased and John King came to reside there;^[40] and, if John King’s claim were established, then there was no residential tenancy agreement within the meaning of the RTRA Act and QCAT could not have made an order to evict John King from the premises.^[41]
35. [35]
    Mr Trewavas for Ms Joubert submitted that the decision in King is distinguishable on the facts and that Mr Dudley for Mr and Mrs Fleger placed undue reliance on it.
36. [36]
    Mr Dudley submitted the following^[42] in written outline,^[43] which I address seriatim here for convenience.

    1. The District Court is still seized of the adjudication of the respondents’ counterclaim which will determine whether the applicant is estopped from evicting the respondents.

The submission is misconceived because it is the Tribunal which has exclusive jurisdiction to adjudicate the eviction estoppel point insofar as it is raised as a defence to these proceedings.

2. Mr and Mrs Fleger’s counterclaim in the District Court would be rendered nugatory if they are evicted without recourse to a validly raised equitable right to remain in occupation of the unit, in which event a substantial injustice may be occasioned to them.

That is not so, for the reasons to which I refer later.

1. (c)
   The circumstances of the QCAT case heavily favour a stay of the termination application, pending a final decision in the District Court, and the Tribunal’s stay power arises either expressly from the provisions of the QCAT Act such as sections 9, 28(1), 28(2) and 62, or by implication as reasonably necessary for the effective exercise of Tribunal jurisdiction,^[44] characterisable as a temporary stay for case management purposes and in the interests of justice^[45] where it is desirable that the other proceedings proceed to their conclusion first.^[46]

I accept the statement of the Tribunal’s powers but, for reasons that will follow, do not accept that the Tribunal proceedings should be stayed.

1. (d)
   Relevant stay considerations listed by Lockhart J in Sterling Pharmaceuticals Pty Ltd v Boots Company (Australia) Pty Ltd (1992) 34 FCR 287 at 291, approved in Henry v Henry (1996) 185 CLR, 571 at 590 and CSR Ltd v Signa Insurance Australia Ltd (1997) 189 CLR 345 at 390, [98], which are not exhaustive, must be applied in considering whether to grant a temporary stay pending the determination of proceedings in another court involving the same or substantially similar issues, including which proceeding was commenced first, whether the determination of one proceeding is likely to have a material effect on the other, the public interest, the undesirability of two courts competing to see which of them determines common facts first, consideration of circumstances relating to witnesses, whether work done on pleadings, particulars, discovery, interrogatories, and preparation might be wasted, the undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues, how advanced the proceedings are in each court, the application of the principle that the law should strive against permitting multiplicity of proceedings in relation to similar issues, and generally balancing the advantages and disadvantages to each party.

Noted.

5. Though the facts in King differ, both that case and the present case concern an equitable claim which gives rise to a “clear dispute” about the basis of the occupant’s right to occupy the premises. Here, that is the respondents’ claim to an estoppel against eviction and to a constructive trust over the unit.

Insofar as the proceedings for a termination order in the Tribunal are concerned, I do not accept that the issue of eviction estoppel is justiciable in the District Court. It is justiciable here^[47] exclusively, for the reasons set out earlier. I treat it as a defence to the application for termination of the residential tenancy and a warrant of possession and will return to it later.

37. [37]
    Mr Dudley said the following in oral submissions.

    1. There is an estoppel in that there was a promise made that that money would go to (transcript incomplete) and that they could live in the that unit, and that promise was, in effect, that they could reside there indefinitely. The case of Morris v Morris says that in those circumstances, that it is tantamount to an offer that an interest in the property arise, and in those circumstances, a constructive trust can be imposed.^[48]

It is for the District Court to adjudicate whether the asserted estoppel aids the claim for a remedial constructive trust but estoppel against eviction from a residential tenancy may only be raised as a defence and adjudicated in the QCAT proceedings where the Tribunal has exclusive jurisdiction.

1. (b)
   Everything in this case points to the character of this agreement as not being a residential tenancy agreement, just as many of the things to be complied with haven’t been complied with or even thought about, just as rent has never been paid, and just as body corporate fees and things have been paid that is just completely inconsistent with the existence of such an agreement.^[49]

I have earlier found that a residential tenancy subsists.

1. (c)
   Ms Joubert’s Application should therefore be dismissed, however that if you decided you did have jurisdiction then it should be adjourned;^[50] or stayed.^[51] You could stay it without determining it but in any event if I determine that then it doesn’t matter because “you’d just dismiss the application.”^[52]

None of those options is appropriate in this case, for the reasons given and to follow.

38. [38]
    Mr Trewavas submitted the following in his oral submissions.

1. (a)
   This is a residential tenancy, applying the provisions of the Residential Tenancies and Rooming Accommodation Act.^[53] Intention is irrelevant, you can intend not to be caught by consumer protection legislation, but you are, whether you intend to or not. You’re caught by it because of meeting the elements set out in the Act. Once those elements are satisfied, your intention is irrelevant.^[54]

I accept the submission and have come to the same conclusion for the reasons set out earlier.

1. (b)
   Just because you have a constructive trust^[55] doesn’t give you a right to occupy, that is a different thing.^[56] The decision in Muschinski v Dodds (1986) 160 CLR 583 is High Court authority for that.^[57] A constructive trust is remedial and prospective, not retrospective.^[58]

I accept the submission, insofar as it is relevant to discretion in the Tribunal proceedings.

Written submissions for the Applicant record that His Honour Deane J, one of the plurality in Muschinski, said this at page 614:

A constructive trust is remedial, precluding retention or assertion of beneficial ownership of property to the extent that such would be contrary to equitable principle.

1. (c)
   The Tribunal’s decision in King concerned a quite different thing, a claim for a life interest,^[59] in which Her Honour was doing the balancing between the various competing interests.^[60]

I accept that analysis.

1. (d)
   The determination of this proceeding isn’t going to have a material effect on the determination of the equity because what’s going to happen if they do make out their equitable claim is they will be entitled to a monetary payment. They are not entitled to a proprietary interest in the property … You get remedied by money.^[61]

I accept the submission, insofar as it is relevant to discretion in the Tribunal proceedings.

1. (e)
   This is (the) issue, is there excess hardship under the Act. That’s the issue. The District Court can’t determine that. They won’t determine that.^[62]

I accept that submission for the reasons given earlier.

6. At the end of the day, (Mr Dudley is) overcooking King.

I accept the submission that King does not assist Mr and Mrs Fleger in the way that Mr Dudley contended.

1. (g)
   You’ve got to balance all the factors, and this is the key factor. They’ve been living there rent-free for such a long time. They’re not paying rates. They’re not paying outgoings. They’re not paying anything, and the mortgage is behind. She can’t afford to keep the mortgage going. She can’t afford to – she’s homeless. She can’t house her family. She can’t pay the mortgage. All these things were not present in King … it’s a terrible situation, and it is a terrible situation for everyone, but there has to be – there has to be a resolution.^[63]

I accept that submission for the reasons already stated.

Discussion

King

39. [39]
    The approach of the Appeal Tribunal in King and in Jones is, respectfully, not one that I should follow on the facts and evidence in the present case. Firstly, factual dissimilarities aside but because of them, the reasoning in those cases did not involve an analysis of the provisions of the RTRAA as apply on the unique facts in the present case. Nor was the exclusive jurisdiction of this Tribunal to hear and resolve tenancy termination applications in the minor civil dispute arena or in the Magistrates Court in respect of domestic violence tenancy termination considered in the way analysed in this case.
40. [40]
    Secondly, the nature of an occupational right in equity such as asserted by Mr and Mrs Fleger in the District Court is inherently different in character to the nature of an occupational right in tenancy. The cause of action in each proceeding is fundamentally different, even though many of the underlying facts are common to the concurrent proceedings in the several jurisdictions in this case. Put another way, though occupation of the unit is the common denominator, ending Mr and Mrs Fleger’s right of occupation by termination of a residential tenancy by this Tribunal cannot impact their claim for relief from dispossession, including interim relief by injunction in the District Court exercising jurisdiction in equity if appropriate. Nor will adjudication of the termination application in the Tribunal render nugatory the adjudication of Mr and Mrs Fleger’s asserted rights in equity in the District Court. If proven, any occupational right in equity vested in Mr and Mrs Fleger by declaration or order could not credibly be characterised as an occupational right in residential tenancy.
41. [41]
    Thirdly, by the provisions of the RTRAA, an application to QCAT for termination of a residential tenancy is urgent in statutory nature and is to be dealt with urgently. The degree of urgency may differ, depending on the conduct of parties, the exigencies, and other considerations, on a case-by-case basis, but the objects and functions of the Tribunal under the QCAT Act to ensure expedition remain. Though there may be exceptions, adjournment, or deferral of final Tribunal decisions in urgent tenancy termination applications pending the adjudication of claims to an occupational right in equity elsewhere ought generally to be avoided. If that were not the approach of this Tribunal, the mere hint or assertion of a tenant’s entitlement to litigate for equitable relief in another jurisdiction would require as a matter of course that those urgent applications for termination of residential tenancies be adjourned indefinitely. The would be inconsistent with the Tribunal’s statutory objects and functions.

Condition will never be satisfied

42. [42]
    I find that:

    1. there is a residential tenancy.
    2. the condition (of the oral residential tenancy agreement) will likely never be satisfied.
    3. the lessor has made out the termination ground of excessive hardship; and
    4. a proper exercise of discretion requires termination of the residential tenancy, otherwise temporary occupation becomes permanent for ever more at the tenants’ discretion.

Eviction estoppel – not made out in these QCAT proceedings

43. [43]
    I do not consider that the representation or promissory estoppel asserted by Mr and Mrs Fleger’s solicitors and counsel is made out in this Tribunal as a defence to Ms Joubert’s application for a termination order. The asserted representation was in fact the condition to which I referred earlier. The condition was never satisfied. It probably never will be, because of the behaviour of tenants and lessor over time and their inability, despite my urging, to find compromise rather than continue to incur substantial costs in litigation of uncertain and unpredictable outcome.
44. [44]
    Alternatively, if I were to be held wrong in that finding and conclusion, it would not be unconscionable to allow Ms Joubert to depart from the asserted assumption because there is a residential tenancy, the condition (of the residential tenancy agreement) will likely never be satisfied, the lessor has made out the termination ground of excessive hardship, there has not been a predation of disadvantage or power imbalance, and the proper exercise of discretion requires termination of the tenancy in all the circumstances – otherwise Ms Joubert’s right to occupation under Torrens title by applying residential tenancy statute law in Queensland is rendered nugatory.
45. [45]
    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

46. [46]
    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.
47. [47]
    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.
48. [48]
    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.

Disposal

Decision

49. [49]
    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.
50. [50]
    My reasons would be incomplete without the following comprehensive summary of the stay criteria in Sterling, considered and applied in this case. Their prior resort to litigation in the several other jurisdictions first is irrelevant because Mr and Mrs Fleger’s’ counterclaim in the District Court for equitable relief based on a right of occupation in equity is not justiciable in QCAT and Ms Joubert’s claim for termination of a right of occupation in tenancy is not justiciable in the District Court. The causes of action differ fundamentally, even though occupation is the common denominator.  A decision in one proceeding will not determine the decision in the other. There is no risk of inconsistency. The jurisdictions are not competing. Whereas there is disagreement about the existence of a second agreement to which Mr Dudley referred, the condition of the second agreement is essentially the same as the condition and term of the (first) February 2017 agreement, about which there is no dispute. It is unlikely that there will be any waste of time in either QCAT or in the District Court in adjudicating the respective but different claims. Ironically, it is the law of differing jurisdiction that has required the multiplicity of proceedings. The advantages and disadvantages of each party are the same and unavoidable. Adjourning the Tribunal hearing or staying final orders on the other hand will waste the Tribunal’s time and further strain already very limited resources in this historically protracted dispute. Adjournment would decide nothing but perpetuate the tenancy disputation. That is highly undesirable given the unfortunate history to date. There is no public interest in either adjournment or stay in the circumstances.

Orders

51. [51]
    The orders are those stated on the first page of this decision.