Camargo v E&R Motorsport

[2013] QCAT 741

CITATION: Camargo v E&R Motorsport [2013] QCAT 741

PARTIES:	Mr Julian Adolpho Castro Camargo (Applicant)
V
E & R Motorsport (Respondent)

APPLICATION NUMBER: MCDO2845/12

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM

DELIVERED ON: 23 May 2013

DELIVERED AT: Brisbane

ORDERS MADE:      1.    Application for a stay and reopening refused.

CATCHWORDS:

MINOR CIVIL DISPUTE – where respondent did not attend hearing – where application for stay and reopening – whether grounds for stay – whether grounds for reopening

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 145(2).

Commissioner of Taxation (Cth) v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220
JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Asia Pacific International Pty Ltd v Peel Valley Mushrooms Ltd [1999] 2 Qd R 458
Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347

APPEARANCES and REPRESENTATION (if any):

The tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

1. Mr Camargo took his Holden Barina to E & R Motorsport for a roadworthy certificate. The car failed the roadworthy, so Mr Camargo authorised E & R to do the necessary repairs. Mr Camargo claims that E & R did not repair the car. He filed a claim for $1,848.50 in the tribunal. The tribunal heard the dispute on 16 April 2013. Mr Camargo attended the hearing but there was no appearance from E & R. The tribunal ordered E & R to pay Mr Camargo $1,593.

2. Mr Claros, who trades as E & R filed an application to set aside the decision and an application for a stay of the decision. He says that he did not know about the claim or the hearing.

3. Mr Camargo filed an affidavit of service, stating that he sent the claim to E & R at its registered address. That address is the same as the address on Mr Claros’ application. The tribunal sent the notices of hearing to that address. The tribunal sent the decision to that address. It is odd that Mr Claros received the decision, but nothing else. I am not persuaded that Mr Claros did not receive the claim or the notices of hearing.

4. To succeed in an application for a stay Mr Claros must show good reason for the stay to be granted[1] and that it is an appropriate case to grant a stay.[2]   Jerrard JA set out the matters for consideration in Elphick v MMI General Insurance Ltd & Anor[3]. Did the applicant demonstrate that he or she has a good, arguable case on appeal? Will the applicant be disadvantaged if a stay is not ordered? The tribunal should consider that 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.  The applicant should also show that its success on appeal would not be rendered nugatory if the order appealed from is not stayed in the interim.

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

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

   [3] [2002] QCA 347 at [4].

5. Mr Claros has not demonstrated that he has a good arguable case on appeal. He has not demonstrated that he will be disadvantaged if a stay is not ordered and he has not demonstrated that the appeal will be of no effect if the stay is not granted. The application for a stay should be refused.

6. Mr Claros says that he has “supporting documents” to show Mr Camargo's claim should fail but he has not provided copies to the tribunal. Therefore, Mr Claros has not given me any indication that he has a good arguable response to Mr Camargo’s claim. The application for reopening should be refused.