Clements v Flower

Case [2005] QDC 50

DISTRICT COURT OF QUEENSLAND

CITATION:

Clements v Flower [2005] QDC 050

PARTIES:

GRAHAM AND DELMA CLEMENS
Applicants
v
MARK FLOWER
Respondent

FILE NOS:

Appeal Nos BD185/2005, 256/2005 and 387/2005

DIVISION:

Civil

PROCEEDING:

Applications for leave to appeal, and for stay

ORIGINATING COURT:

Commercial and Consumer Tribunal

DELIVERED ON:

Wednesday 16 March 2005

DELIVERED AT:

Brisbane

HEARING DATE:

17 February 2005

JUDGE:

Alan Wilson SC

ORDER:

1 Leave to appeal is granted to the applicants in applications nos BD 185/05 and BD 256/05

2 Upon the applicants undertaking by their Counsel not to sell, dispose of or encumber the property at 13 Alicia Court Scarborough, that enforcement of the judgment registered in this court as no BD 323/05 be stayed pending judgement in the matter of the Applicants’ appeal no 185/05

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – circumstances in which leave to appeal should be granted

APPEAL – STAY OF EXECUTION PENDING APPEAL -  circumstances in which stay should be granted

Commercial and Consumer Tribunal Act 2003
UCPR r 761

Cases considered:
Asia Pacific International Pty Ltd v Peel Valley Mushrooms Ltd (1999) 2 Qd R 458
Cellante v G Kallis Industries Ltd (991)2 VR 653
Commissioner of Taxation v The Myer Emporium Ltd (No 1) 1986 160 CLR 220
GHD Pty Ltd v Wayne [2001] QSC 73
Gianfriddo v Garra Constructions Pty Ltd (1971) VR 289
Griffiths v Australian Postal Commission (1987)  87 FLR 139
G R Mailman & Associates Pty Ltd v Wormald (Aust) Pty Ltd (1991) 24 NSWLR 80
J C Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) (1983) 2 Qd R 255
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
McDonald v Douglas Shire Council [2002] QCA 387
United Scientific Holdings Ltd v Burnley Borough Council (1997) AC 904

COUNSEL:

Mr A N Skoien for the applicants in all matters
Mr P H Major for the respondent in all matters

SOLICITORS:

Winchester Young & Maddern for the applicants
Maunsell Pebbington for the respondent

  1. This matter involves three applications (two for leave to appeal, and one for a stay of execution of judgement pending appeal) arising out of proceedings before the Commercial and Consumer Tribunal (CCT) where the applicants (as owners) and the respondent (as builder) were in dispute about various matters concerning the construction of a dwelling house at Scarborough.  Proceeding BD185/05 is an application for leave to appeal against a decision of the CCT given on 21 December 2004 which ordered that the applicants pay the respondent the sum of $72,248.88 pursuant to the contract.  The second application, BD256/05 is brought in respect of a further CCT decision of 24 December 2004 in which the Tribunal vacated an earlier costs order made on 21 December.  In the third proceeding, BD387/85, the applicants seek a stay of enforcement of the first order (which has now been registered as a judgment in this court, BD323/05).

BD185/05; CCT Decision 21 December 2004

  1. Appeals may be brought from the CCT…

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Details
AGLC
Clemens v Flower [2005] QDC 50
Case
[2005] QDC 50
Decision Date

CaseChat Overview and Summary

The case of Clements v Flower involved an appeal against a judgment where the applicants sought leave to appeal and a stay of execution pending the appeal. The applicants were contesting a decision that had been made by a lower court, which had ruled against them in a property dispute. The applicants sought to appeal the decision and argued that they should be granted leave to appeal and that the enforcement of the judgment should be stayed pending the outcome of the appeal.

The legal issues before the court included whether the applicants were entitled to leave to appeal the decision of the lower court and whether, if granted leave to appeal, the enforcement of the judgment should be stayed pending the outcome of the appeal. The applicants argued that there were substantial grounds for appeal, and that a stay of execution was necessary to prevent injustice and to ensure that the appeal could be effectively pursued.

The court considered the circumstances of the case and determined that there were indeed substantial grounds for the appeal. The court found that the applicants had demonstrated a real prospect of success on the appeal and that the balance of convenience favoured a stay of execution. Consequently, the court granted the applicants leave to appeal and ordered that the enforcement of the judgment be stayed pending the outcome of the appeal, subject to the applicants providing a undertaking not to sell, dispose of, or encumber the property in question.

Orders

Orders of the court

1 Leave to appeal is granted to the applicants in applications nos BD 185/05 and BD 256/05

2 Upon the applicants undertaking by their Counsel not to sell, dispose of or encumber the property at 13 Alicia Court Scarborough, that enforcement of the judgment registered in this court as no BD 323/05 be stayed pending judgement in the matter of the Applicants’ appeal no 185/05

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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