Campbell v Lane

[2013] QCATA 229

CITATION: Campbell & Anor v Lane & Anor [2013] QCATA 229

PARTIES:	Don Campbell Fiona Campbell (Applicants/Appellants)
v
Amy Lane Deborah Lane (Respondents)

APPLICATION NUMBER: APL267-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 2 August 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Application to stay operation of decision being appealed against is refused.

CATCHWORDS:

PRACTICE AND PROCEDURE – MINOR CIVIL DISPUTE – MINOR DEBT – APPLICATION TO STAY DECISION – where applicants sold a horse to the respondents – where respondents claim horse was lame and not ‘fit for purpose’ – where respondents commenced proceedings in the Tribunal for purchase price and other associated expenses – where Tribunal found respondents had established claim – where applicants seek to appeal that decision – where applicants also seek to stay decision pending appeal – whether applicants have ‘good, arguable case on appeal’ – whether the stay should be granted

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

Chief Executive Officer, Department for Child Protection v S (2007) 98 ALD 329, cited

Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453, cited
Croney v Nand [1999] 2 Qd R 342, cited
Elphick v MMI General Insurance Ltd [2002] QCA 347, applied
Kostopoulos v G E Commercial Finance Australia Pty Ltd [2005] QCA 311, cited

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. Mr Don Campbell and Ms Fiona Campbell seek leave to appeal a decision of a Magistrate, sitting as a QCAT Member, in the Tribunal’s Minor Civil Disputes jurisdiction in a case concerning a horse. The learned Magistrate found, in short, that a horse sold by the Campbells to the Lanes for $12,000 was, in fact, so lame that it was ‘virtually worthless’ and that the Campbells should repay the Lanes the purchase price of $12,000 (plus some transport costs and a QCAT filing fee – in total, $12,975).

2. The Campbells have filed an application for leave to appeal and, also, an application to stay the operation of the learned Magistrate’s decision pending the determination of the appeal. The Appeal Tribunal has power to make a stay under s 145(2) of the QCAT Act.

3. The question whether a stay of an 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]

   [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 329 at 331.

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

4. The Appeal Tribunal directed that the stay application should be determined on the papers and that parties should file and exchange written submissions. That has occurred. The Campbells’ submissions rely upon three grounds: that they will suffer financial hardship if ordered to pay the judgment; that they ‘… have concerns that they may encounter difficulties in recovering the payment’ if it is paid to the respondents; and, that they ‘… seek to stay the decision in order to preserve the status quo’.

5. The first of these grounds is immaterial: if correct, it would apply in any circumstance. As to the second, it is unsupported by any particulars and is made, it may reasonably be observed, despite the fact that the respondents were apparently able to pay the full price for the horse in the first instance. The third ground is only material if supported by persuasive submissions that the applicants have, at least, an arguable case in the appeal and that refusal of a stay might render a successful appeal nugatory.

6. As Jerrard JA observed in Elphick v MMI General Insurance Ltd [2002] QCA 347 at [4], an applicant for a stay should demonstrate that he or she has a good arguable case on appeal; that they will be disadvantaged if a stay is not ordered; that the competing disadvantage to the respondents, should the stay be granted, does not outweigh the disadvantage suffered by the applicants if the stay is not granted; and, that the applicants success on appeal would be rendered nugatory if the order appealed from is not stayed in the interim.

7. The Campbells’ submissions are not persuasive in any of these respects.

8. The decision of the learned Magistrate was reserved after the hearing of the matter on 17 May 2013 and lengthy, and apparently considered, written reasons were subsequently delivered on 27 May 2013. The Campbells’ written submissions in support of their application for leave to appeal assert errors of law on the learned Magistrate’s part (in particular, in construing the Australian Consumer Law). Those submissions indicate, at best, that there may be arguments open to the applicants in an appeal if leave is granted, but fall short of compelling the conclusion that they have a ‘good, arguable case on appeal’. 

9. In any event even if it were conceded that the applicants have arguable grounds of appeal, their apparent strength is not so obviously compelling that they outweigh other factors relevant to the discretion.  For these reasons, a stay must be refused.