Angelopoulos v Cavey

[2016] QCATA 198

CITATION:

Angelopoulos v Cavey [2016] QCATA 198

PARTIES:

Anastasios Angelopoulos
Angelos Angelopoulos
(Applicant)

v

Gail Cavey

(Respondent)

APPLICATION NUMBER:

APL356-16

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

6 December 2016

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Paratz

DELIVERED ON:

6 December 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1.    The application for a stay filed on 28 October 2016 is dismissed.

CATCHWORDS:

MINOR CIVIL DISPUTE – STAY – where a $385.00 judgment was entered in a rental bond dispute after a contested hearing – where the tenants allege they have suffered material disadvantage because of the judgment order – where no evidence was provided as to the alleged disadvantage suffered by the tenants – where sufficient circumstances were not found to displace the usual rule as to not interfering with a judgment

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. The Tribunal sitting at Proserpine made an Order on 30 September 2016 in a Minor Civil Dispute proceeding between Gail Cavey & Mamap Pty Ltd, Nationwide Whitsunday Pty Ltd (the Applicant) and Anastasios Tom Angelopoulos and Angelos Angelopoulos (the Respondent) as follows:

   The Application is granted, the respondent to pay $385.00.

   The Application for Miscellaneous Matters is dismissed

   The response and/or Counter Application is dismissed.

   I order the RTA to release $385.00 bond held to the Applicant

2. Anastasios and Angelos Angelopoulos filed an “Application to stay a decision” in the Tribunal on 1 November 2016.

3. The Tribunal made an interim order on 15 November 2016 staying the decision pending further order of the Tribunal.  Directions were given for the filing of material in support of the application by Anastasios and Angelos Angelopoulos by 18 November 2016, and submissions in response  by Gail Cavey by 23 November 2016; and that the application would be determined on the papers not before 23 November 2016.

4. Anastasios and Angelos Angelopoulos sent an email to the Registry on 22 November 2016 advising that they would not be providing any further information in relation to the ‘Application to Stay a Decision’.

5. No submissions in response as to the stay application were filed by Gail Cavey.

6. I made a decision ‘On the Papers’ on 6 December 2016 dismissing the Stay Application.

7. On 9 December 2016 Anastasios and Angelos Angelopoulos sent an email to the Registry requesting the reasons that the stay application was dismissed.

8. Section 122 of the Queensland Civil and Administrative Tribunal Act 2009 provides that a party to a proceeding may request written reasons for a decision in the proceeding. These are the reasons as to the Stay Application.

9. The Tribunal has power to make an order staying the operation of a decision being appealed against, until that appeal is finally decided: Queensland Civil and Administrative Tribunal Act [Qld] 2009, s 145(2).  The normal rule is that a litigant is entitled to the ‘fruits’ of the litigation, a phrase which typically includes a judgment.[1]  While it has been suggested that an applicant for a stay must establish ‘special circumstances’[2] before an order will be made, it has also been said that the discretion is unfettered and that the applicant must demonstrate a basis for a stay, with particular emphasis upon such matters as the balance of convenience, and the competing rights of the parties.[3]

   [1]Commissioner of Taxation (Cth) v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222-3 per Dawson J.

   [2]JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255 at 258.

   [3]Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-5.

10. To succeed in an application for a stay the applicants must show good reason for the stay to be granted[4] and that it is an appropriate case to grant a stay.[5]  In Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 at [8], Jerrard JA observed that the applicant should demonstrate that he or she has a good arguable case on appeal; that he or she will be disadvantaged if a stay is not ordered; the competing disadvantage to the respondent, should the stay be granted, does not outweigh the disadvantage suffered by the applicant if the stay is not granted; and that they should show that its success on appeal would not be rendered nugatory if the order appealed from not be stayed in the interim.

    [4]JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255 at 259.

    [5]Asia Pacific International Pty Ltd v Peel Valley Mushrooms Ltd [1999] 2 Qd R 458.

11. The matter was a bond dispute resulting from the rental of a residential property at 1 Sandpiper Crescent, Jubilee Pocket in Queensland.

12. In their application for a stay Anastasios and Angelos Angelopoulos submit[6] that their “Application for leave to appeal or appeal” presents an arguable case; and that the balance of convenience favours the grant of  a stay because:

    Our positions are significantly weaker than the original applicants in this case. We are both in receipt of pensioner payments from Centrelink which limits our accessibility to legal advice. We also both suffer from disabilities.

    [6]Annexure “A” to the Application for a Stay.

13. They further submit that they will suffer some material disadvantage because:

    (d) The decision may have affected or continue to affect our credit rating which may have prejudiced or will continue to prejudice our ability to borrow money from lending institutions.

    (e) During the course of 2016 and towards the end of the lease period the owner’s partner Gus Ferlaino advised they were both experiencing financial difficulties and they were planning to move to Melbourne. We also note their belongings were progressively being sold off from Gus Ferlaino’s Facebook account. The bond monies should be held by the RTA and not released because the owner may not be able to refund these monies in the event of a successful appeal by us. Furthermore, the owner has not left a forwarding address in Melbourne for us to pursue any monies in future. The decision has adversely affected the health of Mr Angelopoulos senior who is 91 years of age. A Stay of the decision would assist in mitigating any health impacts upon him.

14. In the case of a money judgment, an inability to refund the judgment sum if the appeal is successful may be a material factor.[7]

    [7]JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255 at 259.

15. The amount of the judgment is only $385.00. No evidence is provided to substantiate the submission that the Lessor would be unable to refund that amount of money.

16. The judgment decision was made after a contested hearing before a Magistrate sitting as a Member of the Tribunal. The Lessor is entitled to receive payment under the judgment.

17. The detriment that will be suffered by Angelos and Anastasia Angelopoulos is very minor in money terms. No statement of assets or income has been provided by them. They have not shown that they will suffer substantial hardship by not having the bond moneys returned to them.

18. Angelos and Anastasia Angelopoulos allege that their credit rating may have been affected by the judgment, but they do not provide any evidence that this has in fact occurred, or evidence as to the effect that the recording of the $285.00 judgment has had on their ability to obtain credit, or has affected any of their financial dealings.

19. I am not satisfied that Angelos and Anastasios Angelopoulos have demonstrated that sufficient circumstances exist to displace the usual rule and to deprive the Lessor of the benefit of the judgment.

20. I dismiss the application for a stay.