Anna Fitzpatrick v All Urban Rentals

[2011] QCATA 197

CITATION: Anna Fitzpatrick v All Urban Rentals
[2011] QCATA 197

PARTIES:	Anna Fitzpatrick (Applicant/Appellant)
v
All Urban Rentals

APPLICATION NUMBER:            APL214-11               

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Mr Richard Oliver, Senior Member

DELIVERED ON:   20 June 2011

DELIVERED AT:   Brisbane

ORDERS MADE:  The application for a stay of the Tribunal’s decision of 8 June 2011 is refused.

CATCHWORDS : 

Queensland Civil and Administrative Tribunal Act 2009; section 145(2)

Croney v Nand [1999] 2 Qd R 342 at 348.
Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453

Chief Executive Officer, Department for Child Protection v S (2007) 98 ALD 329.
Kostopoulos v G E Commercial Finance Australia Pty Ltd [2005] QCA 311.

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2000 (QCAT Act).

REASONS FOR DECISION

1. On 8 June 2011 the Tribunal, in the minor civil disputes jurisdiction, made an order terminating her tenancy at New Farm and ordering her to pay arrears of rent in the sum of $1,800.00.

1. From this decision Ms Fitzpatrick has appealed and has also sought a stay of the decision pursuant to section 145(2) of the QCAT Act. The question of whether a stay of the original decision should be granted is usually addressed according to established principles: Is it an appropriate case to grant a stay?[1]  Does the applicant have an arguable case on appeal?[2]  Would a refusal of a stay render the appeal nugatory?[3]  Does the balance of convenience favour granting the stay?[4] In addition, the fundamental principle governing applications for a stay is that the successful party is prima facie entitled to the benefit of the decision in its favour.

   [1]        Croney v Nand [1999] 2 Qd R 342 at 348.

   [2]        Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 at 455.

   [3]      Chief Executive Officer, Department for Child Protection v S (2007) 98 ALD

   [4]      Kostopoulos v G E Commercial Finance Australia Pty Ltd [2005] QCA 311.

1. There is nothing in the material filed by Ms Fitzpatrick to suggest that the arguments she mounts in the application for leave to appeal and the stay were not put before the learned adjudicator. In fact, with respect, it seems what she is attempting to do in the appeal is re-argue the case that was argued in the initial hearing. Ms Fitzpatrick does not identify any error on the part of the learned adjudicator which would have prospects of success on the appeal.

1. Insofar as Ms Fitzpatrick alleges she has not been given credit for all of the rent paid, on her own admission she does not have all of the receipts for cash payments so there is no evidence to directly challenge the respondents rent ledger. Again this is a factual matter which would have been considered by the decision maker.

1. Ms Fitzpatrick’s submission does not address or satisfy any of the basis upon which a stay would normally be granted and therefore the application is dismissed.

         329 at 331.