Callil v Kosonen

[2017] QCATA 149

CITATION:

Callil v Kosonen [2017] QCATA 149

PARTIES:

Peter Callil

(Applicant/Appellant)

v

Samuel Kosonen

(Respondent)

APPLICATION NUMBER:

APL312-17

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard

DELIVERED ON:

18 December 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

The application to stay a decision is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where application filed for leave to appeal or appeal decision of the Tribunal – where decision was a money order in the Minor Civil Disputes Jurisdiction – where money order was in respect of a motor vehicle accident – where respondent in Minor Civil Dispute proceeding sought a stay on the money order decision pending the outcome of the appeal proceeding – whether a stay should be granted- the balance of convenience in the circumstances

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 62, s 145

Barker v Lavery (1885) 14 QBD 769
JC Scott Constructions v Mermaid Waters McBride v Sandland (No 2) (1918) 25 CLR 369 Tavern Pty Ltd (No 1) [1983] 2 Qd R 243

APPEARANCES:

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. An Adjudicator heard a dispute in its minor civil dispute (MCD) jurisdiction between Peter Callil and Samuel Kosonen. The dispute related to a claim for property damage arising from a motor vehicle accident. An Adjudicator heard the dispute and made orders that Mr Callil pay $1,720.80 to Mr Kosonen.

2. Mr Callil subsequently filed an application for leave to appeal the Tribunal’s decision. That application is yet to be determined.

3. At this stage, I must decide Mr Callil’s application seeking orders that the learned Adjudicator’s decision be stayed until the appeal proceedings have been decided.

4. In the application for a stay order, Mr Callil submitted only that he sought a stay because the matter was subject to appeal. Both he and Mr Kosonen subsequently had the opportunity to provide written submissions in relation to the application.

5. Mr Callil submits that a stay order should be made because the Adjudicator’s decision did not stipulate a timeframe for compliance and an appeal has been lodged.

6. Under s 145 of the QCAT Act, the Appeal Tribunal may make an order staying the operation of a decision being appealed against until the appeal is decided. The issues to be considered in deciding whether to stay an order pending appeal are settled.

7. A party seeking a stay order must satisfy the tribunal that the discretion to grant a stay ought be exercised in the circumstances. There must be sound reasons for suspending the rights that the successful party otherwise has to fruits of the judgment.[1] An applicant must demonstrate that he/she has an arguable ground of appeal. It is not sufficient to appeal without ground/s simply in order to avoid execution of the judgment. The balance of convenience in the circumstances must be considered. If success on appeal would be rendered nugatory were a stay not granted, that must be balanced against the expectation of the successful party to the fruits of the judgment.[2] In the case of a money order, a stay may be granted in circumstances where there is evidence that if the appeal succeeds, the respondent would not be able to repay the money.[3]

   [1]McBride v Sandland (No 2) (1918) 25 CLR 369, 374.

   [2]JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd R 243, 247.

   [3]Barker v Lavery (1885) 14 QBD 769.

8. Mr Callil has not provided submissions in respect of the relevant factors.

9. However, the judgment Mr Callil seeks leave to appeal is a money judgment. There is no evidence to suggest that if the appeal succeeds, Mr Kosonen will be unable to repay the money. The balance of convenience lies with Mr Kosonen, as the party successful before the learned Adjudicator. Even if Mr Callil has an arguable case, I would not be persuaded that a stay order should be made.

10. I refuse the application for a stay order.

11. I also make directions listing the appeal proceeding for an oral hearing on a date to be fixed.