Hobson v Grant[2025] QCATA 63

REASONS FOR DECISION

De-identification

1. [1]
   Parties are de-identified pursuant to s 159 of the Domestic and Family Violence Protection Act 2012 (Qld) by using pseudonyms. For clarity, names used herein are for convenience and ease of reading, and do not reflect the parties’ names, nor how they prefer to be addressed.

What is this application about?

2. [2]
   Julie Ann Hobson seeks leave to appeal, and if granted, to appeal a decision made by the Tribunal below on 19 April 2024 to evict her from a home owned by Steven John Grant, her former de facto partner. Ms Hobson disputed that the parties were separated at the time the termination application was filed and asserts a beneficial interest in the property as the de facto spouse of Mr Grant.
3. [3]
   On 29 May 2024 the Appeal Tribunal stayed the eviction pending the outcome of the application for leave to appeal and the appeal, now determined as follows.

Factual background to the dispute

4. [4]
   By an application in a minor civil dispute – residential tenancies dispute filed on 21 March 2024, Mr Grant applied to the Tribunal for a warrant of possession under s 350(1) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRAA) on the basis that Ms Hobson was not a tenant and was occupying his property without his consent. His application described Ms Hobson as “essentially a squatter” who “needs to be removed from the premises”.^[1]
5. [5]
   In support of the application, Mr Grant tendered an affidavit in which he relevantly said as follows:

   1. He and Ms Hobson “used to be in a de facto relationship for an on-and-off period of 4 to 5 years” and that they separated “in or around 2018” with no prospects of reconciliation.
   2. He and Ms Hobson were parties to domestic and family violence orders made 2012 (Mr Grant as respondent and Ms Hobson as aggrieved), 2018 (Mr Grant as respondent and Ms Hobson as aggrieved), March 2021 (Mr Grant as respondent and Ms Hobson as aggrieved) and May 2021 (Ms Hobson as the respondent and Mr Grant as the aggrieved). He noted a fresh application by Ms Hobson as aggrieved made 10 November 2023. 
   3. Mr Grant purchased the property in November 2020, and Ms Hobson lived there between January and March 2021, although their intimate partner relationship, he says, did not recommence during that period.
   4. In August 2022, Mr Grant permitted Ms Hobson to again live at the property on the basis that she would pay $360.00 per fortnight by way of rent. The arrangement was for an indefinite period, to end when Ms Hobson had saved sufficient funds to relocate to her birth country, which was expected to occur within around six months.
   5. Ms Hobson “has made no payments whatsoever to me since she began living with me in August 2022” and “has made no payments to me for rent nor living expenses”.
   6. Nonetheless, Mr Grant says he permitted Ms Hobson to remain living at the property.
   7. In or around March 2023 Mr Grant says he gave Ms Hobson a credit card in his name with a limit of $10,000.00 “to purchase essential items for herself on the condition that she pay the balance due each month”. He says Ms Hobson paid seven payments totalling $4,150.00 and that he had since had to repay $10,000.00 in debt accumulated on the card by Ms Hobson.
   8. On 10 November 2023 Mr Grant was removed from the property by police, following an incident the subject of the then current application by Ms Hobson for extended domestic and family violence orders against Mr Grant.
   9. Mr Grant meets all property and living expenses (rates, water, insurance, interest, telephone, electricity and mortgage repayments).
6. [6]
   Supporting his application, Mr Grant tendered:

   1. A title search evidencing his ownership of the property.
   2. Receipts of his payment of expenses for the property.
   3. Internet banking records evidencing the transfer of money by Ms Hobson to his account (reference Ms Hobson’s name).
   4. An Everyday Account statement evidencing payments in to and out of Mr Grant’s account as well as Visa purchases for various expenses (7-Eleven, McDonalds, Office Works, hairdressers, Kmart, and JB-Hifi to give a few examples) and cash withdrawals.
7. [7]
   For her part, Ms Hobson submitted response material on 11 April 2024 comprising an affidavit and extensive supporting material she had prepared for the parties’ Magistrates Court proceedings. That material included:

3. (a)
   An affidavit sworn 26 March 2024 in which Ms Hobson states that:

3. (i)
   She has been engaged to Mr Grant since 2018 and in a relationship since around 2012.

3. (ii)
   She also cares for her mother and she and her mother moved between the residence owned by Mr Grant and her mother’s residence typically for respite from domestic and family violence issues in the home shared by Ms Hobson and Mr Grant.

3. (iii)
   During a discussion in August 2022, Ms Hobson and Mr Grant decided to continue their relationship and to restructure their financial arrangements to avoid financial co-dependency. Ms Hobson says it was agreed in this discussion that her name was to be added to the title to the property and the mortgage.

3. (iv)
   Ms Hobson was paying for all food and household supplies.

3. (v)
   In May 2023 Ms Hobson and Mr Grant created a family trust and secured a webpage and several trademarks, including in the names of Ms Hobson and Mr Grant, to apply to t-shirts to sell through an e-commerce business.

3. (vi)
   Ms Hobson paid the electricity bill and rates invoice in July 2023 and other household expenses, as evidenced in annexed bank statements.

3. (b)
   A statement to police dated 23 April 2021 in which Ms Hobson states that she is in a relationship with Mr Grant and details incidents of domestic and family violence that occurred in 2016 and 2018 (supported by her hospital records pertaining to injuries she allegedly suffered during the 2018 incident).

3. (c)
   An emailed reply to the application for minor civil dispute in which Ms Hobson reasserts the existence of the intimate partner relationship, the history of domestic and family violence, the family trust owning the trademarks in the parties’ names and highlights discrepancies in the bank statements submitted by Mr Grant.

8. [8]
   On 12 April 2024, Ms Hobson filed a further bundle of response material comprising court documents and notices pertaining to the parties’ domestic and family violence proceedings. These included:

   1. A notice of adjournment of the application to vary proceedings to 7 May 2024.
   2. A temporary protection order naming Ms Hobson as the aggrieved and Mr Grant as the respondent that included ‘no contact’ and ‘no approach’ orders.
   3. Ms Hobson’s witness statements dated 15 March 2021 and 13 December 2020.
   4. A varied protection order dated 12 April 2021 naming Ms Hobson as the aggrieved and Mr Grant as respondent that included a ‘no contact’ order.

9. [9]
   The decision of the Tribunal below was to issue a warrant of possession requiring Ms Hobson to vacate the property based on the following findings:

3. (a)
   Ms Hobson was not a tenant of Mr Grant:

3. A termination order can be made under section 350 of the Residential Tenancies and Rooming Accommodation Act if there is no residential tenancy agreement in effect and that the person is occupying the premises without the consent of the owner. The respondent has stated a number of times this morning that there is no residential tenancy in place, and I accept that evidence.^[2]

3. (b)
   Mr Grant did not consent to Ms Hobson continuing to occupy the property:

3. There is no consent for the respondent to be in the property. The title of the property is in the name of the applicant. The applicant purchased this property after he had separated from the respondent in 2018. The property was bought with an inheritance...^[3]

3. (c)
   Ms Hobson and Mr Grant are not in a de facto relationship:

3. The respondent states that the applicant and she are in a de facto relationship.

3. The evidence given before me today about the existence of a de facto relationship, in relation to that, I prefer the evidence of the applicant to that of the respondent. I accept the applicant’s evidence that there is no de facto relationship between them.^[4]

3. (d)
   Ms Hobson does not have a beneficial interest in the property:

3. …And I note that the respondent has claimed that she has equity in both the property and the …inheritance and that she’s entitled to same. She says that she’s happy to have the applicant come home, in her words.

3. I find that all of this evidence that – is difficult to accept in the circumstances. I prefer the evidence of the applicant.^[5]

Applications for leave to appeal under the QCAT Act

10. [10]
    Pursuant to s 143(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), Ms Hobson requires leave to appeal. In determining whether to grant leave, the Appeal Tribunal must be satisfied that, relevantly:

    1. there is a reasonably arguable case of error in the primary decision;^[6]
    2. there is a reasonable prospect that they will obtain substantive relief;^[7] and
    3. leave is needed to correct a substantial injustice caused by the error;^[8] or
    4. there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.^[9]

The grounds of appeal

11. [11]
    The grounds of appeal are articulated by Ms Hobson as follows:

3. (a)
   Grounds 1 and 2: No due process, denial of procedural fairness/natural justice – Ms Hobson says that:

3. (i)
   she did not receive ‘equality in law or impartiality’ from the presiding Adjudicator and she had no ‘fair hearing or unbiased decision’, and

3. (ii)
   due to anxiety and depression, she was unable to understand or deal with the application, the possible outcome or consequences.

3. (b)
   Ground 3: Insufficient weight was given to her evidence, specifically evidence of Mr Grant’s struggles with addiction and domestic and family violence, that led Ms Hobson to regularly, but temporarily, relocate from the home for her own safety, returning when it was safe to do so.

3. (c)
   Ground 4: The Tribunal made an error of fact when finding that the de facto relationship ended in 2018 because it went against evidence of cohabitation through to 2023, shared contributions to expenses and family trust and asset transfer arrangements.

3. (d)
   Ground 5:  The Tribunal made an error of law in deciding the matter as a tenancy matter, when it ought instead to have been determined as a de facto property dispute under the Family Law Act (the jurisdiction ground).

12. [12]
    Upon review of the minor civil dispute file and the hearing transcript, the Appeal Tribunal is satisfied that Ms Hobson’s application for leave can be decided on the jurisdiction ground alone, although the allegations in grounds one and two have also been considered.

New evidence

13. [13]
    Before turning to the grounds of appeal, it is necessary to address the filing by Ms Hobson of evidence in this proceeding that was not before the Tribunal below. An application for leave to reply on this evidence has not been filed.
14. [14]
    In Alderton & Anor v Wide Bay Constructions Pty Ltd [2017] QCATA 147 at [7], Senior Member Howard said that:

3. [38]
   Fresh evidence may be allowed in appeal proceedings that proceed by way of rehearing, but only in limited circumstances. Although I am not determining the application for leave to appeal or the appeal, I observe some relevant underlying principles. The appeal process is for correcting error made by the original decision-maker. It is not an opportunity for a party to present their case again in order to achieve a different outcome, or reargue it, merely because the party does not like or agree with the outcome/decision of the original tribunal. Where required, leave to appeal will generally only be granted when there is a reasonably arguable case of error in the primary decision; reasonable prospects of substantive relief and there is a necessity to grant leave to correct a substantial injustice.

3. [39]
   The principle of finality in litigation counts against admitting fresh evidence on appeal. Parties are expected to act in their own interests and make their own case fully in the first hearing.

3. [40]
   In an application for leave to rely upon fresh evidence concerning evidence that did not exist at the time of the original hearing, to succeed, an applicant must generally show as follows:

3. (a)
   That the evidence could not have been available with reasonable diligence for the original hearing;

3. (b)
   That if it was allowed to be relied upon it probably would have had an important impact on the result of the case; and

3. (c)
   That the evidence is credible.

15. [15]
    Ms Hobson has not established that the new evidence was not available with reasonable diligence for the original hearing.
16. [16]
    As observed in Ramsay v Fraser [2024] QCATA 72 at [11] an application for leave to adduce fresh evidence is not, and should not be, an attempt to shore up the deficiencies of a party's case at the initial hearing.
17. [17]
    In any event, it will be seen that the application for leave to appeal or appeal was able to be determined without reference to new evidence.
18. [18]
    Leave to rely on the new evidence is refused for those reasons.

Ground 5 – Jurisdiction

The legislative framework for decision making in tenancy matters

19. [19]
    The application came before the Tribunal below as an application for minor civil dispute – residential tenancy dispute.
20. [20]
    Section 11 of the QCAT Act confers the Tribunal’s jurisdiction over minor civil disputes.
21. [21]
    Schedule 3 of the QCAT Act includes a ‘tenancy matter’ as a minor civil dispute, namely, ‘a matter in relation to which a person may, under the Residential Tenancies and Rooming Accommodation Act 2008, apply to the tribunal for a decision’. 
22. [22]
    Section 12(4) of the QCAT Act permits an application for a tenancy matter to brought by a ‘relevant person’ who, for a tenancy matter, is ‘a person who, under the Residential Tenancies and Rooming Accommodation Act 2008, may apply to the tribunal for a decision in relation to the matter’.
23. [23]
    The RTRAA defines the following relevant terms:

3. (a)
   In s 11, a ‘residential tenancy’ is the right to occupy residential premises under a residential tenancy agreement.

3. (b)
   In s 12, a ‘residential tenancy agreement’ is an agreement under which a person gives to someone else a right to occupy residential premises as a residence,^[10] whether the right is a right of exclusive occupation^[11] and whether partly or wholly written, oral or implied,^[12] but an agreement is not a residential tenancy agreement if it is a rooming accommodation agreement.^[13]

3. (c)
   In s 12, a ‘tenant’ is the person to whom the right to occupy residential premises under a residential tenancy agreement is given.

3. (d)
   In s 9, a ‘lessor’ is the person who gives the right to occupy residential premises under a residential tenancy agreement.

3. (e)
   In s 16, a ‘rooming accommodation agreement’ is one under which a provider provides rooming accommodation to a resident in rental premises.

3. (f)
   In s 15, ‘rooming accommodation’ is accommodation occupied or available for occupation by residents, in return for the payment of rent, if each of the residents:

3. (i)
   has a right to occupy one or more rooms; and

3. (ii)
   does not have a right to occupy the whole of the premises in which the rooms are situated; and

3. (iii)
   does not occupy a self-contained unit; and

3. (iv)
   shares other rooms, or facilities outside of the resident’s room, with one or more of the other residents.

24. [24]
    The requirements under s 15 are cumulative in that, each must be met for the arrangement to be deemed rooming accommodation. However, s 44 excludes the RTRAA from applying to rooming accommodation that is provided by a person in a premises if, among other things:

    1. the premises are the person’s only or main place of residence; and
    2. not more than three rooms in the premises are occupied, or available for occupation, by residents.
25. [25]
    Section 44A of the RTRAA excludes the Act from applying to rooming accommodation provided to a boarder or lodger, which are not defined and, therefore, their meaning is determined from ordinary language. 
26. [26]
    According to the Oxford English Dictionary, ‘to lodge’ refers to the provision of sleeping quarters to a guest or inmate in the provider’s house, while ‘to board’ means to provide a lodger with meals at a fixed rate.
27. [27]
    The Collins English Dictionary (2008) describes a boarder as ‘a person who pays to live and have daily meals at another person's house or at a school’. Such residents are inmates in another person’s house, (Noblett v Manley [1952] SASR 155 at 158.5) or dwellers in a place they cannot call their own (Commissioner for Fair Trading v Voulon [2005] WASC 229).
28. [28]
    The Macquarie Dictionary (4th edition 2005) states: “Boarder: someone who is supplied with meals and lodging”; “Lodger: someone who lives in hired quarters in another’s house”.
29. [29]
    Section 433(2) of the RTRAA requires the tribunal to have regard to the following factors if required to decide whether a person is a boarder or lodger:

    1. the extent to which the person has control over the premises;
    2. the extent to which another person, receiving an amount from the person for the right to reside at the premises, has control of the premises;
    3. whether another person, receiving an amount from the person for the right to reside at the premises, also resides at the premises;
    4. the provision of services to the person;
    5. whether the person shares facilities, including the bathroom and kitchen facilities; and
    6. anything else the tribunal considers relevant.
30. [30]
    Section 70 of the RTRAA converts a fixed term residential tenancy agreement to a periodic agreement if the term ends and none of the following notices is given, or agreements or applications made before the end day:

    1. a notice to leave;
    2. a notice of intention to leave;
    3. an abandonment termination notice;
    4. a notice, agreement or application relating to the death of a sole tenant under s 324A; or
    5. a separate written agreement between the lessor and tenant to end the residential tenancy agreement under s 277(a).
31. [31]
    Section 277 of the RTRAA states that a residential tenancy agreement ends only in ones of the following ways:

    1. the lessor and tenant agree, in a separate written document, to end the residential tenancy agreement;
    2. the lessor gives the tenant a notice to leave under s 326 and the tenant hands over vacant possession of the premises on or before the handover day for the notice;

    3. the tenant gives the lessor a notice of intention to leave under s 327 and hands over vacant possession of the premises on or before the handover day for the notice;

    4. if there is only 1 tenant for the agreement that tenant gives the lessor a notice ending tenancy interest, and hands over vacant possession of the premises or the tenant dies
    5. the tenant vacates, or is removed from, the premises after receiving a notice from a mortgagee or appointed person under s 317;
    6. the tenant abandons the premises and the period for which the tenant has paid rent has ended; or
    7. the tribunal makes an order terminating the agreement.
32. [32]
    In Hiscox v PBG Realty [2019] QCATA 112, Member Gordon considered the unique nature of the former provisions of s 277, but his comments are still applicable (emphasis added, footnotes omitted):

[16] Section 277(1) says that a residential tenancy agreement ends only in a way mentioned in the section. This removes any opportunity for common law or equitable principles to apply. The result of this section is that it is possible for a residential tenancy agreement, in law, to continue indefinitely. It might be thought that a fixed term residential tenancy agreement must end at the end of the fixed term, but that is not necessarily the case. That is because of the operation of section 70, which will convert a fixed term tenancy into a periodic tenancy if one of the notices referred to in section 277 has not been given, and there is no written agreement to end the tenancy.

33. [33]
    In Lobato v Gardian Real Estate Pty Ltd [2021] QCATA 130 [20], Judicial Member McGill SC noted that a tenancy does not come to an end at the end of a term even if the tenant vacates at the end of the term and hands back the keys to the lessor. The tenant must first have given a notice of intention to leave at least 14 days before the end of the term because at the end of the term the tenancy continues as a periodic tenancy under s 70.
34. [34]
    Section 350(1) permits the owner of premises to apply to the tribunal for a warrant of possession if there is no residential tenancy agreement in place and a person is occupying the premises without their consent, including, for example, a person who was a tenant under a residential tenancy agreement that has ended. An application to remove a person occupying residential premises without consent – namely a person who is a not a tenant – is a ‘tenancy matter’ under schedule 3 of the QCAT Act.
35. [35]
    Read with s 70(2), an owner’s right to apply for a warrant under s 350(1) would not apply where the term of a fixed term residential tenancy agreement ends and the residential tenancy agreement has remained in place, albeit at as a periodic tenancy.

Jurisdictional error in the first instance decision

36. [36]
    To summarise: the Tribunal’s jurisdiction to decide Mr Grant’s application for a s 350 warrant required a finding by the Tribunal below that the arrangement between Ms Hobson and Mr Grant was not a residential tenancy agreement.
37. [37]
    Although such a finding was made, the learned Adjudicator’s reasons for doing so are scant, the Adjudicator simply stating that: 

The respondent has stated a number of times this morning that there is no residential tenancy in place, and I accept that evidence.^[14]

38. [38]
    Denial of natural justice is an error of law.^[15] Failure to give adequate reasons is an error of law if it denies the disappointed party natural justice.^[16] As Dr Forbes has observed ^[17] a failure to give reasons “... adds insult to the injury of an adverse decision. Without reasons, how can a party be confident that the case was understood and properly considered?”.
39. [39]
    It is also an error of law for a decision-maker to make a decision which is manifestly unreasonable by failing to give adequate weight to a relevant factor of great importance.^[18] 
40. [40]
    Respectfully, a finding as to whether an arrangement is a residential tenancy can only be made by the tribunal after taking factual evidence and relevant submissions as to the applicable law from both parties.
41. [41]
    A mere assertion by a party that they are not a tenant is not evidence as to whether the arrangement is one of residential tenancy, rooming accommodation, boarding or lodging etc.
42. [42]
    The RTRAA defines the relevant terms and prescribes the factors to be considered when deciding the nature of a person’s occupancy of a home.
43. [43]
    In failing to refer to those definitions and factors in determining that the arrangement was not a residential tenancy, the only inference to be drawn is that the definitions and factors were not considered, and the failure to consider them is an incurable error of law.^[19] 
44. [44]
    As to the evidence on tenancy, after hearing Mr Grant’s submissions, the learned Adjudicator addressed Ms Hobson as follows:^[20]

ADJUDICATOR: …it seems that you are living in that property without consent and without a residential tenancy agreement in place.

MS HOBSON: Your Honour, if I was a renter - - -

ADJUDICATOR: And the application – no, be quiet please. Be quiet please. The application is for an issue of warrant of possession, and I can issue a warrant of possession if the owner applies, there’s no residential tenancy agreement in effect, and the person is occupying the premises without consent. Would you like to make some submissions about the termination order?

MS HOBSON: I do not agree with the termination order of any tenant, because I’m not a tenant. That is why there is no tenant agreement. The explanation of my relationship with [Mr Grant] is in the PDF file that I sent you of all of my court paperwork. So that explains, you know, how we live and our family. …So I – I strongly disagree with a tenant basis of my situation because I’m not a tenant. I am his fiancée and his partner.

ADJUDICATOR: I agree you’re not a tenant, ma’am. I agree you’re not a tenant.

MS HOBSON: And he is welcome to come home.

ADJUDICATOR: And you’re living there without consent. You’re living there without consent, ma’am.

….

ADJUDICATOR: …There is no evidence that you are in a relationship with [Mr Grant] before me. If you would like to direct me to a particular - - -

MS HOBSON: So what requires evidence, your Honour?

ADJUDICATOR: Ma’am. Please stop interrupting.

MS HOBSON: Would you accept affidavit [indistinct] …

ADJUDICATOR: If you would like to direct me to a particular document that you have filed, please go ahead.

MS HOBSON: A document of what? This is QCAT. You wanted a tenant agreement. There is no tenant agreement because I am his de facto.

ADJUDICATOR: Well, he claims you’re not and I agree with you.

MS HOBSON: So that’s all you – that’s all you require is a tenant agreement, to prove that I’m a tenant. There is no tenant agreement because - - -

ADJUDICATOR: That’s correct, ma’am.

MS HOBSON: - - - I’m his de facto. I’m not his tenant.

ADJUDICATOR: Will you listen to me please, ma’am, or I will have to put you on mute. Now, what is required for me to issue a warrant of possession is, number 1, there is no tenant agreement in place. We all agree that there’s no tenant agreement in place. And the other limb of section 350 - - -

MS HOBSON: Because I’m his de facto.

ADJUDICATOR: - - - is that you’re there without consent, and that has been made out also.

MS HOBSON: I have been here all along.

45. [45]
    The above exchange, particularly that emphasised, suggests that the learned Adjudicator was under the misapprehension that for a residential tenancy agreement to be ‘in place’ for the purpose of s 350(1), it needed to be in writing, or, if not, they nonetheless misled Ms Hobson into believing that was the case, contrary to the express wording of s 12(3) of the RTRAA.
46. [46]
    In any event, the following submissions were made by Mr Grant’s solicitor during the hearing on the issue of tenancy:

[Mr Grant] is the registered owner of the title of the property. In or around 2022, the respondent moved in with the applicant. Just for note, they were in a relationship up until 2018. Essentially, [he] let her reside at the property. Initially agreed that she would pay $360 per fortnight. She has failed to make any payments in this regard and was – on the applicant’s understanding that she would be at the property for around six months.

She has continued to reside there. Mr [Grant]’s continued to pay all expenses associated with the property.^[21]

47. [47]
    Mr Grant himself gave evidence as follows:

…she was supposed to pay rent fortnightly, which I have all text messages of continually saying, can you please pay rent, can you please help me, can you please pay something, which majority of the arguments were over money and not getting paid anything.^[22]

48. [48]
    On Mr Grant’s evidence and submissions – which the learned Adjudicator expressly accepted:

    1. Mr Grant ended his intimate relationship with Ms Hobson in 2019.
    2. In 2022, Mr Grant granted Ms Hobson a right to occupy part of the property owned by Mr Grant on the basis that she would pay rent in the sum of $360.00 per fortnight and for an indefinite period of ‘around six months’. 
    3. Ms Hobson continued to occupy the home beyond the end of the anticipated period, and to the date of the hearing.
    4. For most of the relevant period, Mr Grant also occupied the property as his residence and there was no evidence that more than three rooms in the premises were occupied, or available for occupation, by other residents. 
    5. From November 2023 Mr Grant vacated the home due to the expulsion terms of the protection orders in which he is named as respondent and Ms Hobson as the aggrieved.
49. [49]
    Having regard to ss 11, 12, 15, 44, 44A and 70 of the RTRAA – on Mr Grant’s evidence alone as accepted by the Adjudicator - the arrangement between Ms Hobson and Mr Grant that commenced in August 2022 met the definition of a ‘residential tenancy agreement’ and did not meet the definition of any other arrangement that is excluded from that definition.
50. [50]
    Ms Hobson’s tenancy was periodic from the outset and could only end upon the happening of one of the prescribed events set out in s 277, none of which had occurred, such that it remained ‘in place’ as at the date of the application and of the hearing.
51. [51]
    As such, the requirement that there be “no residential tenancy agreement in place” to vest power to issue the warrant under s 350(1) was not met and the order made pursuant to s 350(1) was ultra vires.

Grounds 1 and 2: Denial of procedural fairness and bias

52. [52]
    It is worth addressing Ms Hobson’s allegation that she did not receive ‘equality in law or impartiality’ from the presiding Adjudicator and she had no ‘fair hearing or unbiased decision’ as a perusal of the hearing transcript certainly raises concerns.
53. [53]
    With respect to the onerous^[23] minor civil dispute jurisdiction, it has been said that even though disputes are allocated minimal time, and some are complex and time consuming, parties must still be afforded procedural fairness^[24] and that it is made clear by s 4(c) of the QCAT Act that the objective of achieving justice is not to be sacrificed to conducting proceedings quickly.^[25]
54. [54]
    Procedural fairness results from a fair hearing. Whether a matter has been dealt with fairly depends on what is fair in the circumstances of the case^[26] and whether a party was given a reasonable opportunity of presenting their case.
55. [55]
    The test for apparent bias is whether, in all the circumstances, a fair-minded lay observer with knowledge of the objective facts might entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the issues in the proceeding.^[27]

Addressing the respondent by her preferred name

56. [56]
    Twice when taking appearances, Ms Hobson was incorrectly addressed by the hearing support officer as “Ms Ann”, her middle name, not her first name or surname. Ms Hobson responded at first with “Julie is here” and on the second occasion with “my name’s Julie, not Ms Hobson”.
57. [57]
    During the hearing, Mr Grant referred to Ms Hobson by her preferred name, Julie, but the learned Adjudicator addressed Ms Hobson as Ms Hobson, or on one occasion incorrectly as Ms Grant, rather than by her preferred name.
58. [58]
    On three of these occasions, Ms Hobson corrected the learned Adjudicator, as follows:

59. [59]
    It would have assisted Ms Hobson to understand why the Tribunal refused to address her by her preferred name, expressed twice by her on the first taking of appearances, rather than be left to wonder whether a deliberate attempt was being made to offend her. A simple explanation such as the Adjudicator felt uncomfortable addressing a party by a name other than their surname, in the interests of professionalism, would have sufficed.

Sovereign Citizen allegation

60. [60]
    As observed by Judge Cash QC in R v Sweet [2021] QDC 216, sovereign citizens, also known as ‘organised pseudo legal commercial argument’ (OPCA) litigants,^[28] refers to a group of litigants who typically advance nonsense arguments and ‘gobbledygook’^[29] to avoid the operation of laws with which they do not wish to comply. In R v Sweet His Honour noted that:

[5] Recognising that the arguments presented by OPCA litigants are largely incoherent, if not incomprehensible, courts have been increasingly willing to dismiss their claims summarily.^[30]

61. [61]
    Often, sovereign citizen litigants argue that their birth certificate (or other documents) evidence a trust, with a right to then collect funds held in trust on their behalf under a theory known as redemption. In addition, or alternatively, distinction is made between a “real” private identity and a fictional “public” person.  The latter is presumed dead, and the “real person” or “living soul of” the deceased identity alleges a trust interest in the estate of the deceased.^[31]  The most recent example of this is found in Ryan v Fraser Coast Regional Council [2025] QCA 108 wherein the applicant pursued an appeal grounded on his belief that he is a beneficiary and has a trustee, and that the trustee was never served:

Proper due process has not occurred, as only the beneficiary who carries no liability was given documents as opposed to the (a) lawful trustee or administrator whose fiduciary role is to deal with financial matters regarding the estate. How can, say, the trustee defend himself – itself if that party hasn’t been served???.

62. [62]
    As Ms Hobson attempted to explain the family trust set up for the trademarked names to apply to t-shirts (to establish that she and Mr Grant were in a long-term and ongoing relationship), the following exchange occurred:

ADJUDICATOR: Ms [Hobson], can you explain to me what this trust is about?

MS HOBSON: A private trust we’ve set up with all of our trademark names [indistinct] through the year. I paid for - - -

ADJUDICATOR: And what do you mean by “trademark name”, madam?

MS HOBSON: We’ve trademarked all our names. So [Steven John Grant] is trademarked. [Julie Ann Hobson] is trademarked. The whole family is trademarked.

ADJUDICATOR: Okay. So. You’re a sovereign citizen, are you, madam? Are you a - - -

MS HOBSON: And this has been rolled into a private trust.

ADJUDICATOR: [Ms Hobson]. [Ms Hobson]. Are you a sovereign citizen?

MS HOBSON: No, your Honour, but I am in the process of setting up a private – we were in the process of setting up a private trust until [Steven]’s opium use started going up and, you know – and then he couldn’t control his domestic violence. So you know, that’s where we ended - - -

ADJUDICATOR: So why did you trademark your name?

MS HOBSON: - - - but I have the paper – so I - - -

ADJUDICATOR: Why did you trademark your names, ma’am?

MS HOBSON: Because I have a logo. I’m doing shirts and I had an online website which got hacked a couple of months ago, so I’m working on that to get that back up.

63. [63]
    Nothing in Ms Hobson’s evidence, submissions or conduct during the hearing were characteristic of the “nonsense” or “gobbledygook” arguments typical of litigants expressing sovereign citizen beliefs. 
64. [64]
    The Tribunal’s suggestion to Ms Hobson that she was a ‘sovereign citizen’ was not only gratuitous, and entirely unsupported by evidence, but also unnecessary given that Ms Hobson’s beliefs had no relevance to the proceeding. It can only be assumed that the Tribunal misunderstood Ms Hobson’s reference to the family trust as a trust reference typical of sovereign citizens (see paragraph [61] above).
65. [65]
    It is clear from the transcript that Ms Hobson’s evidence and submissions were entirely directed to proving her argument that she was the long-term intimate partner of  Mr Grant, with a beneficial interest in the property he was seeking to evict her from, which meant, in her view, the dispute ought to fall to the jurisdiction of the Family Law courts rather than the Tribunal. To counter Mr Grant’s submission that their intimate partner relationship ended in 2019, Ms Hobson tendered extensive evidence of domestic and family violence orders between them made in proceedings that spanned 2012 to 2023 and that were current at the date of the hearing, bank and credit card statements evidencing the sharing of living expenses and the transfer of money between the two, and a family trust set up in 2023 for joint benefit which Mr Grant, on his solicitor’s submissions, conceded in the hearing was participated in by Mr Grant to pursue an “opportunity” or “get rich quick” scheme.^[32]
66. [66]
    The relevance of the Tribunal’s unprompted ‘sovereign citizen’ allegation is that it appears to have impacted the Tribunal’s willingness to consider and to accept Ms Hobson’s evidence and submissions, particularly around the formation of a family trust to evidence the ongoing intimate relationship and shared endeavours alleged by Ms Hobson.  They were, instead entirely and summarily dismissed by the Adjudicator in preference for Mr Grant’s position without an adequate explanation for doing so, not dissimilar to how nonsense submissions by sovereign citizens are also summarily dismissed.

Domestic and family violence

67. [67]
    The evidence before the Tribunal was that there were domestic and family violence orders in place from as early as 2012 (Mr Grant as respondent and Ms Hobson as aggrieved), 2018 (Mr Grant as respondent and Ms Hobson as aggrieved), March 2021 (Mr Grant as respondent and Ms Hobson as aggrieved) and May 2021 (Ms Hobson as the respondent and Mr Grant as the aggrieved). On only one occasion, May 2021, was Ms Hobson the respondent, otherwise she was the aggrieved, and benefited by orders made by the Magistrates Court on every other occasion.
68. [68]
    Following the November 2023 incident, a fresh application was made by Ms Hobson as aggrieved and was yet to be determined as at the hearing date.
69. [69]
    In summary, it was demonstrated in evidence before the Tribunal that Ms Hobson was aggrieved by domestic and family violence perpetrated by Mr Grant over a period spanning eleven years, in respect of which on only one documented occasion was Ms Hobson identified as the respondent and Mr Grant the aggrieved. Mr Grant’s solicitor described this in the hearing as a “significant order – DVO order history”.^[33]
70. [70]
    During this period, Ms Hobson, on her evidence, had vacated the homes she shared with Mr Grant when she felt unsafe. She returned when she considered it safe to do so, either because she accepted that Mr Grant was in a period of recovery or when he was ousted from the home.
71. [71]
    When the parties were living together during periods in which Mr Grant was subject to “no contact” orders, he gave evidence that Ms Hobson would text or email to permit contact. She revoked this permission in November 2023 such that Mr Grant was removed from the home but two weeks later offered to communicate by phone if Mr Grant “could be civil”, however Mr Grant said he did not want contact therefore she had not attempted contact in the two months prior to the hearing. She was willing to vary the most recent order to permit Mr Grant to “come home”.^[34] 
72. [72]
    On this point, Mr Grant’s legal representative submitted that:^[35]

    1. Mr Grant has been subject to coercive control by Ms Hobson, an example of which was her offer to vary the ouster order to permit Mr Grant to return home.
    2. Ms Hobson’s offer represented an attempt by her to “force” Mr Grant to consent to the protection order or not be permitted to return to the property which is “a demonstration of” Ms [Hobson]’s “controlling behaviour”.
    3. Ms Hobson “continually manipulates or uses a position to, essentially, get herself into the property and then threaten a DVO”.
    4. “It can be convenient to use DVOs to manipulate, or, you know, control someone, so to speak, and have them removed from the property” and “Ms [Hobson] continues to make allegations of DV, yet, clearly keeps coming back to Mr [Grant], I mean, for reason I’m not going to get into but, obviously with respect to the timeline and conduct,.. displays a pattern of – to that effect”.
73. [73]
    Ms Hobson was not invited to respond to these submissions when they were made, and they were ultimately accepted and preferred over the evidence of Ms Hobson without her input.
74. [74]
    A cursory glance at the evidence filed prior to the hearing would have established that:

    1. Ms Hobson has for a long period suffered anxiety and depression arising from her long-term experience of domestic and family violence.
    2. The violence she has experienced has included physical violence for which Mr Grant was charged with assault occasioning bodily harm, and threats to kill.
    3. The 2016, 2018 and 2021 orders were made on applications by the Queensland Police Service, rather than on an application by Ms Hobson.
75. [75]
    In summary, the weight of the evidence did not support the acceptance of Mr Grant’s submissions that by remaining in the home Ms Hobson was exerting coercive control over Mr Grant. Ms Hobson was not given an opportunity to respond to the submissions, nor did the Tribunal challenge them or put to Mr Grant an alternate position, based on the evidence, that Mr Grant’s use of the Tribunal’s eviction processes might itself be an exercise of financial abuse or control over Ms Hobson in a long history of domestic and family violence perpetrated against her. 

Consideration

76. [76]
    In circumstances where:

    1. there was a significant, demonstrated history of domestic and family violence perpetrated by the applicant against the respondent before the Tribunal,
    2. Ms Hobson was vulnerable to the risk of ongoing domestic and family violence, including as an outcome of the eviction process itself,
    3. Ms Hobson was self-represented in the hearing, whereas Mr Grant was legally represented,
    4. Ms Hobson expressed to the learned Adjudicator at one point during the hearing that she was “getting a bit nervous” and in another that she was “suffering anxiety” and medical evidence supported this,
    5. Ms Hobson’s repeated requests to be addressed by her preferred name in the hearing were disregarded,
    6. the Tribunal put to Ms Grant a gratuitous and irrelevant accusation that she was a sovereign citizen, and
    7. the decision to evict Ms Hobson was made summarily, based on findings that were not adequately explained or supported by evidence,

it cannot be said that a fair-minded lay observer with knowledge of the objective facts would not be reasonably apprehensive that the Tribunal below did not bring an impartial and unprejudiced mind to the resolution of the issues in the proceeding.

77. [77]
    Ms Hobson was denied procedural fairness in the proceeding, and this is an error of law. 

Leave to appeal and appeal

78. [78]
    There is a clear case of error in the primary decision of the Tribunal below, whereby the warrant issued was grounded upon an incurably defective finding that a residential tenancy agreement was not in place, without any consideration of the relevant law or any adequate basis for the finding.
79. [79]
    The issue of a warrant displacing Ms Hobson from her home in circumstances where the Tribunal erred in doing so is a matter of substantial injustice to Ms Hobson. So too is the denial of natural justice to her in the hearing.
80. [80]
    Leave to appeal is granted, and the appeal is allowed.
81. [81]
    The Appeal Tribunal may now:^[36]

3. (a)
   confirm or amend the decision; or

3. (b)
   set aside the decision and return the matter to the minor civil dispute jurisdiction for reconsideration:

3. (i)
   with or without the hearing of additional evidence as directed by the appeal tribunal; and

3. (ii)
   with the other directions the appeal tribunal considers appropriate; or

3. (c)
   set aside the decision and substitute its own decision;^[37] or

3. (d)
   make any other order it considers appropriate, whether or not in combination with an order made under paragraph (a), (b) or (c).

82. [82]
    Clearly, the decision must be set aside.
83. [83]
    The Appeal Tribunal has considered substituting the eviction decision with a decision dismissing the application for minor civil dispute because it was only grounded on section 350 of the RTRAA and the evidence before the Tribunal does not ground an order under that section for the reasons previously given.
84. [84]
    However, the issue of whether the arrangement is one of tenancy was so inadequately addressed in the hearing that neither party had the benefit of making submissions on it, having regard to the overlooked legislative framework set out in paragraphs [19] to [35] herein.  It would be unfair to the parties to decide the issue in the absence of those submissions and any further evidence they wish to submit. The matter, therefore, must be sent back to the Tribunal below for rehearing.
85. [85]
    Given the concerns raised over the treatment of Ms Hobson in the first hearing, the Tribunal will be differently constituted on rehearing.
86. [86]
    It is also the view of the Appeal Tribunal that the parties, and the newly presiding Adjudicator will benefit from directions being made for the rehearing, particularly given Ms Hobson’s submission that the dispute is more properly a matter for the Federal Circuit and Family Court.

87. [87]
    Importantly, the jurisdiction of the Tribunal is not ousted in minor civil dispute –residential tenancy matters merely by the parties to the dispute having been previously married or in a de facto relationship to which the Family Law Act 1975 (Cth) (FLA) applies.^[38]
88. [88]
    Much of the in-hearing discussion and Ms Hobson’s evidence was directed at establishing whether the parties were in a de facto relationship when the application was brought. Although the Tribunal below purported to find that the parties were not in a de facto relationship, the finding was flawed because the definition of that term set out in section 4AA(1) of the FLA was not referred to and the key factors in determining whether such a relationship exists set out in s 4AA(2) were not considered. For present purposes, nothing turns on this error.
89. [89]
    As I observed in Fleger v Joubert [2024] QCATA 13 at [32], the QCAT Act and the RTRAA clearly vest exclusive jurisdiction in the tribunal (and in Magistrates sitting as the tribunal) to determine residential tenancy disputes. Nothing in the RTRAA excludes parties to an intimate relationship from the operation of the Act as it applies to residential tenancies (as defined). 
90. [90]
    However, this does not prevent parties asserting and pursuing an equitable interest in property in a court with jurisdiction to determine a claim of that nature.
91. [91]
    In King v King [2010] QCATA 84 the Appeal Tribunal found that the Tribunal does not have jurisdiction to determine a claim for an equitable interest in property.
92. [92]
    Individuals who were in a de facto relationship can claim property division and financial support from their former partner by filing an application in the Federal Circuit and Family Court of Australia (FCFCOA). A de facto partner can claim property settlement within two years from the date of separation and, after that time, only with the consent of the other party or the leave of the FCFCOA. Among other things, recent legislative change permits the court to take into account the effect of any family violence, to which one party to the de facto relationship has subjected or exposed the other party, on the ability of a party to the de facto relationship to make financial and non-financial contributions to the relationship in property settlement proceedings.^[39]
93. [93]
    Typically, where a ‘tenant’ party asserts a beneficial interest in the form of a right to reside in a property the subject of a tenancy matter before the tribunal, that party may be given a brief opportunity to assert that right in the relevant court with competent jurisdiction and, in doing so, to seek injunctive relief from that court in relation to the tribunal proceeding. It is appropriate to allow a brief period for that to occur in this case, during the period allowed to the parties for the filing of updated evidence and submissions.

Orders

94. [94]
    For the reasons given, the decision of the Appeal Tribunal is therefore that:

3. (a)
   The application by the applicant for leave to rely on fresh evidence is refused.

3. (b)
   Leave to appeal is granted.

3. (c)
   The appeal is allowed.

3. (d)
   The decision in MCD Q1596-24 made 19 April 2024 (including the warrant of possession issued pursuant to it) is set aside.

3. (e)
   The application in MCD Q1596-24 is returned to the minor civil dispute jurisdiction for rehearing before a differently constituted Tribunal, with the following directions:

3. (i)
   Evidence filed in APL193-24 will be copied by the Registry and filed as evidence in MCD Q1596-24.

3. (ii)
   Each party must file in the Tribunal and give to the other party:

3. A.
   Any further evidence (documents) that they wish to rely on in the final hearing for application MCD 1596-24, by 4pm on 6 August 2025.

3. B.
   Any response evidence to the evidence filed by the other party and given to them per the above direction, by 4pm on 27 August 2025.

3. (iii)
   The application in MCD Q1596-24 will be listed for a final hearing on a date to be fixed after 31 August 2025.

3. (iv)
   Parties should be prepared in the hearing to address the Tribunal on the question of whether the respondent is a tenant of the applicant and, if it is found that she is not, whether the Tribunal’s discretion to issue a warrant should be exercised.

3. (v)
   Each party is granted leave to be legally represented in the proceeding.  Support persons for a party are also permitted to attend the hearing.

3. (vi)
   If de facto property settlement proceedings concerning the residential premises the subject of the application have commenced, the Tribunal must be notified of the commencement of those proceedings by the later of 4pm on 20 August 2025, or if they are commenced after that date but before the hearing, the earlier of within 2 business days of the commencement of the proceedings and at the hearing.  

3. (vii)
   Nothing in these orders prevent the MCD applicant withdrawing the application if circumstances have changed due to the passage of time such that orders for a warrant of possession are no longer sought.