HRS v NKW[2022] QCATA 169

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The appellant seeks leave to appeal a decision of a magistrate, sitting as a QCAT member in Maryborough. That order, made on 26 April 2022, was to issue a termination order in respect of premises at 49 Bronze Street Aldershot (Bronze Street) on the ground of failure to leave and, consequently, the issue of a Warrant of Possession authorising a police officer to enter Bronze Street, such warrant to take effect on 26 April 2022 and to remain in effect for 14 days, to expire at 6pm on 10 May 2022.
2. [2]
   On 6 May 2022 the Tribunal made an interim stay order suspending the operation of a warrant of possession pending determination of the application for leave to appeal until further order of the Tribunal. The Tribunal also directed:

   1. (a)
      the appellant was to establish that the applications had been served by filing an affidavit of service by 11 May 2022;
   2. (b)
      the appellant was to file and serve submissions in support of the stay, or advise the Tribunal that no further material would be filed by 11 May 2022;
   3. (c)
      the respondent was to file and serve one copy of any written submissions in response to the stay application by 16 May 2022;
   4. (d)
      the application would be determined on the papers not before 16 May 2022; and
   5. (e)
      further directions would then issue concerning the application for leave to appeal following determination of the stay.
3. [3]
   The appellant has filed an affidavit of service in accordance with the directions.
4. [4]
   Neither party has filed submissions in accordance with the directions of the tribunal.
5. [5]
   The appellant has not advised the Tribunal that no material would be filed in support of her further application for a stay pending the grant of leave to appeal. The appellant has not filed any material, such as an affidavit by her, in support of her application for the stay.

What principles are relevant when considering an application for a stay of a decision pending appeal?

6. [6]
   Before this appeal can proceed, it is necessary for the Tribunal to grant leave to appeal because this is a decision of the tribunal in its minor civil disputes jurisdiction.^[1]  No leave has been granted.
7. [7]
   The Tribunal’s power to order a stay under section 145(2) of the QCAT Act is not available where leave to appeal is required and has been applied for, but not yet granted.^[2] However, section 58(1) of the QCAT Act confers jurisdiction on the Tribunal to entertain and, if appropriate, allow a stay of a primary order where leave to appeal has not been granted, but the circumstances must be exceptional.^[3]
8. [8]
   As to whether a stay should be granted the Tribunal considers the following matters:^[4]

   1. (a)
      generally speaking:

      1. a successful party is entitled to the fruits of its litigation;
      2. the Tribunal’s orders, exercising its original jurisdiction, are final, and not merely provisional subject to the initiation of appellate proceedings;
      3. the Tribunal’s original jurisdiction is not to be converted into a forum for the testing or refinement of arguments to be properly ventilated on appeal; and
      4. the applicant must present compelling reasons for the Tribunal to exercise its discretion to grant a stay of the original decision, supported by sufficient evidence to establish the necessary facts relied on by the applicant in support of the stay;
   2. (b)
      the applicant for the stay must:

      1. present a reasonably arguable case for obtaining effective relief in the substantive proceedings, showing the original decision was infected by some form of legal, factual or discretionary error that would warrant appellant intervention to grant effective relief;
      2. establish that a refusal of the stay would cause a material detriment to the applicant; and
      3. demonstrate that the balance of convenience favours the granting of a stay of the operation of the original decision. 

These three later requirements are cumulative. If the applicant fails to discharge any one of the three requirements, the applicant must fail.

Does the appellant have a reasonably arguable case for relief in the appeal?

9. [9]
   There are eighteen paragraphs in the section of the application for grounds of appeal.
10. [10]
    Very little of that material contains appeal grounds. Gleaning what I can from that document, the appeal grounds seem to be:

    1. (a)
       the original application filed by the respondent was not served on the appellant (paragraph 1);
    2. (b)
       whether there was a tenancy arrangement in place (paragraph 3). The appellant claims she and the respondent were in a relationship from about August 2015, she and her two children lived with the respondent at Bronze Street and she and the respondent had a verbal agreement to share finances. She would pay the electricity and utility bills and he would pay the mortgage. Thus, the appellant claims a proprietary interest in Bronze Street which she is seeking to resolve through family law proceedings (arising from matters contained in paragraphs 6, 8 and 10). If the equitable interest is established, this would mean the magistrate erred by granting the termination order and accompanying warrant of possession. 
11. [11]
    The appellant asserts a number of factual matters including:

    1. (a)
       the existence of a domestic relationship between the appellant and the respondent;
    2. (b)
       the termination of that relationship. In that regard the notice of appeal records “At the time of our separation [in November 2021] the respondent moved out of our home. To the best of my knowledge he resided at his mother’s house. I told the respondent I intended to move out but that I would need some time to make other arrangements for myself and my children”;
    3. (c)
       the issue of a protection order dated 11 November 2021 (on the application of a police officer) naming the appellant as the aggrieved and one of her children as a person protected by the order, with the respondent to this appeal as the respondent to the protection order;
    4. (d)
       the appellant made attempts to reach a property settlement with the respondent which, according to the appellant, the respondent refused to participate in;
    5. (e)
       the appellant lodged a caveat over Bronze Street claiming an equitable interest in it for the property settlement;
    6. (f)
       that the settlement of the sale had not occurred on 11 April 2022 because of the caveat lodged on Bronze Street. The respondent’s mother attended at the appellant’s solicitors later that afternoon, very upset that settlement had not occurred;
    7. (g)
       the appellant did not attend court because she was extremely anxious about seeing the respondent because the sale did not occur consequent upon the lodging of the caveat. The appellant claims she had grave concerns for her safety;
    8. (h)
       that the appellant contacted the Registry staff before court and they advised her that she could send email correspondence to the Court. She did email the Court and explained she felt unsafe being around the respondent and sought to be permitted to appear by telephone or alternatively that the matter be adjourned;
    9. (i)
       the police attended Bronze Street on Wednesday 27 April 2022 and explained a warrant of possession had issued from the court. She explained to them she had lodged a caveat over Bronze Street, she was attempting to do a property settlement and she contacted her solicitor and asked the police to liaise with them;
    10. (j)
        her solicitor told her that she had spoken with a police officer on 28 April 2022 and explained the appellant’s situation. She was told by her solicitor that the police officer and, by extension the Court, said they had no idea there was a caveat in place or that she was trying to arrange a property settlement; and
    11. (k)
        she is fearful of the respondent and the actions he might take against her for making the application and for delaying the sale of Bronze Street. Her intense anxiety and fear of the respondent is so great she cannot properly represent herself and if she is granted leave to appeal she would also seek to be legally represented.
12. [12]
    A copy of a protection order dated 11 November 2021 is attached to the application for leave to appeal. It requires the respondent to be of good behaviour towards the appellant and to not commit domestic violence against her and to be of good behaviour to her child and not commit associated domestic violence against the child and not expose the child to domestic violence. It records that the respondent was present in court when the order was made. It is operative until 11 November 2023 unless otherwise ordered. There is no ouster clause in respect of Bronze Street.
13. [13]
    There are also copies of the appellant’s caveat over Bronze Street and a title search dated 9 April 2022 showing the caveat registered on the Bronze Street title.  The grounds of claim in the caveat are “an equitable interest as a beneficiary of an implied trust in relation to the property pursuant to a constructive or a resulting trust arising from financial and/or non-financial contributions by the caveator to the acquisition, conservation and/or improvement to the land. The caveator is the de-facto spouse of the registered proprietor … the caveator has contributed to the maintenance and improvements of [the lot] and accordingly the caveator has an equitable interest in fee simple as beneficiary under a constructive resulting or implied trust”. The caveat is dated 4 April 2022.
14. [14]
    There is nothing in the alleged failure to serve ground. The appellant, on her own information, had the application on 4 April 2022, at least three weeks before the hearing and she had notice of the time and place of the hearing of the application at that time, because she says she received the notice of hearing.
15. [15]
    The next ground is whether there is a residential tenancy agreement, so as to give the Tribunal jurisdiction to deal with the matter under the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA Act).
16. [16]
    A residential tenancy agreement is an agreement under which a person gives to someone else a right to occupy residential premises as a residence,^[5] which can be wholly oral, wholly in writing or wholly implied or partly in one or more than one of those forms.^[6] Whilst it can be oral or in writing, it does not have to be in accordance with a particular form.^[7]
17. [17]
    A lessor is the person who gives the right to occupy residential premises under a residential tenancy agreement^[8] and a tenant is a person to whom the right to occupy residential premises under a residential tenancy agreement is given.^[9]  A lessor may give a tenant notice to leave the premises because the lessor is preparing to sell the premises and the preparation requires the premises to be vacant or the lessor has entered into a contract to sell the premises with vacant possession.^[10]
18. [18]
    The Tribunal may make an order for failure to leave, relevantly, if it is satisfied the lessor has established the ground of the application and notice to leave and the notice to leave was given because of a sale contract.^[11] 
19. [19]
    The Tribunal does not have jurisdiction to determine claims in equity; it can only make a final decision that can be made under the RTRA Act, so it cannot determine whether the appellant has an equitable interest in Bronze Street.^[12]
20. [20]
    Much of the information before the Tribunal is unsworn and has been extracted from documents contained in the Magistrates Court file.
21. [21]
    It appears from the respondent’s mother’s sworn evidence that the respondent had agreed orally with the appellant to have the appellant living at Bronze Street, at least until a point in time when he wanted her to leave, as is evidenced by the solicitor’s letter of 24 February 2022 giving notice to leave because the respondent intended to sell.  According to the respondent’s mother, there was no lease and no rent was payable.
22. [22]
    Whilst the respondent’s mother does not depose to the existence of an intimate relationship between the appellant and the respondent, the fact the protection order exists is some evidence that there was a relationship between the parties as contended for by the appellant. A protection order may be granted when the court is satisfied that, inter alia, a relevant relationship exists between the aggrieved person and the respondent.^[13] A relevant relationship is an intimate personal relationship, a family relationship or an informal care relationship as those terms are further defined in the Domestic and Family Violence Protection Act 2012 (DFVPA).^[14]
23. [23]
    The appellant has set out in the notice of appeal that when the domestic relationship between the parties failed, she was planning to move out, but said she would need some time to do so.
24. [24]
    The chronology in the material is to the effect that the relationship ended in November 2021 and notice to vacate was given by a letter dated 24 February 2022, some three months thereafter. That seems consistent with the notion of the respondent affording the appellant some time to leave Bronze Street.  Nonetheless the appellant was still occupying Bronze Street at the end of April 2022, some 5 months after she says the parties’ relationship ended. 
25. [25]
    The picture portrayed from the material filed is that the appellant’s position changed in that:

    1. (a)
       her own avowed position, initially is that she was going to leave if given some time;
    2. (b)
       there were about three months between the cessation of the relationship the appellant alleges existed and the notice to leave;
    3. (c)
       according to an unsworn statement of the real estate agent:

       1. the appellant initially co-operated with the real estate agent;
       2. the appellant then became uncooperative with the agent, removing the For Sale sign, refusing access and screaming if the agent or any potential buyers attended Bronze Street; and
    4. (d)
       the caveat claiming the equitable interest was lodged some 4 – 5 months after the domestic relationship ended, and in response to the appellant becoming aware there was a contract of sale on Bronze Street.
26. [26]
    Thereafter, there was an email from the appellant to the Courthouse dated 26 April 2022 at 8.35am which states, relevantly:

“To Whom it concerns,

I [the appellant] Will not be attending court today due to safety reasons. Because of this I’m seeking adjournment for this matter so I’m able to do by phone call and with my lawyer present.  I have a caveat on the house I have been with [the respondent] for 6 years and now have a dvo police protection order on him !!”

27. [27]
    Another email from the appellant to the Courthouse at Maryborough sent 26 April 2022 at 8.38am that says no more than “Please can I have adjourned”.
28. [28]
    The indorsement on the file is to the effect:

    1. (a)
       the respondent’s mother appeared for the applicant (the current respondent);
    2. (b)
       no appearance for the respondent (the current appellant)  8.33;
    3. (c)
       termination and WOP as attached;
    4. (d)
       email from resp of 8.35 noted; and
    5. (e)
       order stands.
29. [29]
    Whilst the Magistrate had a copy of the caveat, which alleged the appellant had a proprietary interest in Bronze Street before he made the termination order and issued the warrant of possession, it is not apparent what consideration was given to that information before the order was made.  The hearing was listed for 8.30am and it appears the termination order was made at 8.33am. The Magistrate needed to take into account information relevant to the equitable claims^[15] in determining whether to grant the relief sought. That information is the equitable interest in Bronze Street asserted in the caveat, which was before him in the material at the time he heard the matter.
30. [30]
    The Tribunal has power before making a final decision in a proceeding, to make an interim order it considers appropriate, in the interests of justice, to protect a party’s position or to require or permit something to be done to secure the effectiveness of the exercise of the Tribunal’s decision.^[16] It can make an interim order on application of a party to the proceeding or its own initiative.^[17]
31. [31]
    In these circumstances, the appellant has satisfied the Tribunal that she has a reasonably arguable case on appeal that the Magistrate erred in making the termination order and issuing the warrant of possession in the particular circumstances, rather than taking into account the evidence of the alleged proprietary interest in Bronze Street and crafting some interim relief to see if that issue could be determined by a competent court before the respondent’s application proceeded. 
32. [32]
    As such, the appellant has shown a reasonably arguable case for obtaining effective relief in the substantive proceedings on the appeal.

Would refusing the stay cause the appellant material detriment?

33. [33]
    If the stay is refused there is no barrier to the warrant of possession re-issuing. Consequently, the appellant would be required to leave, within a short time frame just prior to Christmas, the place which has been her home for a number of years.
34. [34]
    The Tribunal is satisfied that the appellant would be caused material detriment if the stay is refused.

Does the balance of convenience favour the grant of a stay?

35. [35]
    The appellant has provided a factual basis to support her claim that she was fearful of the respondent, through the provision of the protection order. However, she has not explained why she failed to contact the Court house at any time between 4 April 2022 when she received the notice of hearing, and 26 April 2022 shortly after 8.30am  (when the hearing was listed for 8.30am) to seek to appear by telephone at the hearing.
36. [36]
    On the material before the Tribunal, the settlement fell through on 11 April 2022, but there is no explanation why the appellant did not take steps between 11 April 2022 and the morning of the hearing on 26 April 2022 to seek to appear remotely to participate in the hearing.
37. [37]
    The material on the file suggests that just after the order was made, the Magistrate had information which suggested that the appellant was afraid to physically attend the courthouse. It is not apparent whether, at the time the Magistrate received the email, the respondent’s mother remained present in the court.  In any case, the Magistrate’s notation is that this email was noted, but the order stands.  It is not apparent from the court file what attention the email received in those circumstances.
38. [38]
    A caveat lapses within three months after lodgement of it, unless the caveator has started proceedings in a court of competent jurisdiction to establish the interest claimed in the caveat.^[18] Alternatively, a caveat lapses unless, in response to a notice served by the caveatee in accordance with the Land Titles Act requirements, the caveator has commenced proceedings in a court of competent jurisdiction within 14 days after receiving that notice.^[19]
39. [39]
    In the notice of appeal, the appellant states that after 21 April 2022 she made an application to Legal Aid Queensland for a grant of aid to commence court proceedings in the Federal Circuit and Family Court of Australia (Paragraph 7). It is now approximately 8 months since the appellant lodged the caveat on Bronze Street.  Sufficient time should have elapsed for any decision on a grant of aid to have been made and steps taken to establish the appellant’s alleged proprietary interest in Bronze Street.  If no steps have been taken, the balance of convenience considerations would plainly shift to supporting the respondent’s desire to realise Bronze Street, him having been held out of doing so for many months now.
40. [40]
    Presently, the Tribunal has inadequate information to proceed to determine how to proceed given the paucity of information concerning the appellant’s claims to an equitable interest in Bronze Street.
41. [41]
    The balance of convenience favours a further interim stay for a short period and directions which enable the Tribunal to be informed of whether the appellant has taken steps to pursue her equitable claims, if she has, to stay the proceeding pending the determination of those claims and if not to proceed to determine if any stay should be granted and if leave to proceed with the appeal should be granted.
42. [42]
    The Tribunal will make the following orders:

1. (a)
   firstly, the decision in Minor Civil Dispute Number 0013/22 is stayed until 4.00pm on 17 January 2023;
2. (b)
   secondly, the appellant may file in the Tribunal and serve on the respondent an affidavit which exhibits a claim brought in a court of competent jurisdiction for orders to give effect to the interest she asserts in the subject property by 4.00pm on 17 January 2023;
3. (c)
   thirdly, if the appellant files an affidavit in the terms described in order 2 the issue of leave to appeal is stayed pending determination of the claim brought in the court of competent jurisdiction and the parties must advise the Tribunal within 14 days of any final determination of those claims having been made; and
4. (d)
   fourthly, if the appellant does not file an affidavit in the terms described in order 3 the further consideration of the application for the stay and for leave to appeal will be decided on the papers not before 17 January 2023.