Fast Access Finance (Beaudesert) Pty Ltd v Charter

[2011] QCATA 333

CITATION: Fast Access Finance (Beaudesert) Pty Ltd and Anor v Charter and Anor [2011] QCATA 333

PARTIES:	Fast Access Finance (Beaudesert) Pty Ltd Diamond Clearing House Pty Ltd (Applicants/Appellants)
v
Rachael Charter Michael Sinclair (Respondents)

APPLICATION NUMBER: APL450-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 13 December 2011

DELIVERED AT: Brisbane

ORDERS MADE: Application to stay a decision refused.

CATCHWORDS:

Stay – where a stay will not address the concerns of the applicant – where successful party entitled to the fruits of the litigation

Queensland Civil and Administrative Tribunal Act2009, s 14

Berry v Green [1999] QCA 213

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. On 25 October 2011 the Tribunal, in the minor civil disputes jurisdiction, ordered that the respondents to that proceeding, Fast Access Finance and Diamond Clearing House (‘the applicants”) pay to Rachael Charter and Michael Sinclair the sum of $1,500.00 within 14 days.[1]

   [1]On 9 December 2011 the original order was amended under s 135 of the QCAT Act so that the order applied to both Fast Access Finance and Diamond Clearing House.

1. In his written reasons, the learned Adjudicator found that the applicants were not entitled to retain the interest paid by Ms Charter and Mr Sinclair of $1,500.00 because it offended the Queensland Consumer Credit Code.

1. The applicants filed an application for leave to appeal or appeal the decision of the learned Adjudicator.  In addition the applicant filed an application to stay the decision.[2] The discretion to grant a stay under s 145 of the QCAT Act is unfettered. The fundamental principle governing applications for a stay is that the successful party is prima facie entitled to the fruits of its judgment, and the question is whether or not there is some particular feature of the case which warrants departure from that position: Berry v Green [1999] QCA 213 per de Jersey CJ at 2.

   [2] QCAT Act, s 145.

1. In support of the application to stay the applicants have relied on the following matters:

1.      all transactions conducted under their business model may now offend the Code;

2.      there may be investigations by the Australian Securities and Investments Commission;

3.      further claims are likely from borrowers who have utilised the services of the applicants;

4.      the decision may have serious consequences for the officers of the applicant corporations.

1. Because of these matters, the applicants contend, the decision should be stayed so the circumstances of the subject transaction can be considered by a “higher judicial level than as it presently stands, and by allowing the appropriate appeal period, before becoming the subject of precedent.”[3]

   [3]        Applicant’s submissions paragraph 5.

1. The effect of the stay, if it was granted, would be to stop the payment of the judgment debt to Ms Charter and Mr Sinclair.  The stay would have no impact on any of the matters referred to above.  The very fact of the decision itself has the potential consequences that concern the applicant and a stay will not prevent that.  Similarly any prejudice the applicants may suffer will happen whether a stay is granted or not, save for the payment of the judgment debt.

1. The decision is already a precedent and will remain so unless reversed on appeal.  This will not change with a stay.

1. Ms Carter and Mr Sinclair are entitled to the fruits of the decision and even though this case may have implications to the operation of the applicants’ business a stay will not prevent this from happening.  It is only success on the appeal that will address any adverse consequences of the decision.

1. I am not satisfied that the applicants have made any grounds justifying a stay and therefore it is refused.