Campbell v English [2011] QCATA 13

CITATION: Campbell v English [2011] QCATA 13 PARTIES: Danielle Campbell v Lisa English APPLICATION NUMBER: APL021-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 1 February 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Unless otherwise ordered the decision of the Tribunal made on 24 January 2011 is stayed until 4.00pm 3 February 2011. CATCHWORDS : Application of a stay; where applicant failed to attend hearing; where warrant of possession issued; whether residential tenancy agreement in place as opposed to an agreement to purchase giving rise to an equitable interest. Queensland Civil and Administrative Tribunal Act 2009; section 145(2) APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] This is an application to stay the decision of the Tribunal made on 17 January 2011 to terminate a residential tenancy agreement and issue a warrant for possession. Subsequent to the termination order being made the order for the warrant for possession was vacated and reissued on 24 January 2011 to commence on 27 January 2011 and expire on 14 February 2011. The applicant has today filed an application for leave to appeal and appeal. The grounds of appeal do not identify any proper ground for appeal, but I raise some initial concern as to jurisdiction. -- 1 of 2 -- [2] The applicant together with Alexander Nicholas Juncal entered into a Deed of Agreement whereby the respondent granted to the applicant and Mr Juncal an option to purchase the property the subject of the application for a total purchase price of $360,000.00. The Deed also provided that a licence fee of $564.17 be paid together with outgoings of $55.83/week. Attached to the Deed is a standard form REIQ Contract. [3] The learned Adjudicator found, on a perusal of the notes on the file, that the agreement amounted to a residential tenancy agreement for the purposes of the Residential Tenancies and Rooming Accommodation Act 2008 for the purposes of the issuing of the warrant for possession. However, when one has regard to the Deed, it specifically provides that there is no relationship of landlord and tenant1. It is the terms of the Deed that causes me some concern. [4] There is some urgency to the decision on the Stay Application as police were to execute the warrant at 2.30 pm on 2 February 2011 (30 minutes ago) which has not given the Tribunal sufficient time to properly consider all of the material before the learned Adjudicator. [5] I am conscious of the submissions made by the respondent, particularly the non payment of the licence fee and the outstanding balance owed under the Deed, however it is best to err on the side of caution and given the time constraints I propose to grant the stay for a limited period. [6] Therefore the order of the Tribunal will be that the decision of the Adjudicator of 24 January 2011 will be stayed until 4.00 pm on Thursday, 3 February 2011. [7] Should, however, the Tribunal be satisfied that there is jurisdiction to issue the warrant for possession under the Residential Tenancies and Rooming Accommodation Act 2008 the stay will be lifted. 1 Clause 6.4. 2 -- 2 of 2 --