Cumming v Thiel [2026] QCATA 47

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cumming v Thiel [2026] QCATA 47 PARTIES: LUCY ROSE CUMMING (applicant) v SARA THIEL (respondent) APPLICATION NO/S: APL062-26 ORIGINATING APPLICATION NO/S: Q105-26 MATTER TYPE: Appeals DELIVERED ON: 25 February 2026 HEARING DATE: Heard and determined on the papers HEARD AT: Brisbane DECISION OF: Member McLean-Williams ORDERS: The applications to stay a decision filed on 3 and 6 February 2026 are refused. The interim order dated 5 February 2026 is vacated. The Warrant of Possession made on 3 February 2026 is re-issued to take effect on 16 February 2026. The Warrant of Possession shall remain in effect for 14 days to expire at 6:00pm on 2 March 2026. The Warrant of Possession is to be executed as soon as reasonably practicable after taking effect. 6. Entry under the warrant shall only be between the hours of 8:00am and 6:00pm. CATCHWORDS: APPEAL – GENERAL PRINCIPLES – leave to appeal – minor civil dispute – residential tenancy dispute – circumstances wherein Applicant seeks a stay of the decision under appeal – application for a stay refused, and consequential orders made re-issuing the original warrant of possession – request for reasons of the stay refusal – principles applicable to the granting of a stay Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 122 Clayton v Ebborn [2025] QCA 199 -- 1 of 3 -- 2 Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] The Applicant is one of the original respondents in minor civil dispute Q105-26. [2] On 3 February 2026 an Adjudicator determined minor civil dispute Q105-26 by ordering the termination of a residential tenancy between the landlord, Ms Sara Thiel, and the Applicant and her partner, on grounds of objectionable behaviour. The learned Adjudicator also made associated orders for the issuance of a warrant of possession, thereby authorising a police officer to enter the premises to supervise the ending of the residential tenancy (“the original decision”). [3] On 3 February 2026 the Applicant commenced an appeal against the original decision, and applied for a stay of the original decision. [4] On 5 February 2026 the Appeal Tribunal made an interim order suspending the operation of the warrant of possession, pending determination of the application to stay the original decision. [5] On 13 February 2026 the Appeal Tribunal refused to stay the operation of the original decision, and re-issued the warrant of possession to take effect on 16 February 2026 (“the stay refusal”). [6] On 14 February 2026 the Applicant requested written reasons for the stay refusal. These now are those reasons. [7] The general rule is there should be no stay. As was observed by Keane JA (as his Honour then was) in Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd: ….it will not be appropriate to grant a stay unless a sufficient basis is shown to outweigh the considerations that judgments of the Trial Division should not be treated as merely provisional, and that a successful party in litigation is entitled to the fruits of its judgment. Generally speaking, courts should not be disposed to delay the enforcement of court orders.1 [8] An onus rests upon an applicant for a stay to persuade the Court that it is appropriate to grant a stay. In Clayton v Ebborn it was observed: The applicable principles are well established. It is incumbent on the applicant to establish that this is an appropriate case for a stay. The factors which normally weigh upon the exercise of the discretion are: (a) whether there is an arguable case on the appeal, carrying out a preliminary assessment of the applicants’ prospects of success; (b) whether a refusal of the stay would render the appear right nugatory; 1 [2008] 2 Qd R 453, [12]. -- 2 of 3 -- 3 (c) any prejudice to the applicants and competing prejudice to the respondent; (d) the entitlement of the successful party in litigation to the fruits of its judgment; and (e) that orders might ultimately be made, and whether a stay is required to ensure that those orders are fully effective.2 [9] The information submitted by the Applicant to the Appeal Tribunal in support of the requested stay is wholly insufficient to discharge the onus to show that this is an appropriate case for a stay. [10] The Application to stay the decision under appeal is refused. 2 [2025] QCA 199, [20]. -- 3 of 3 --