Green and Matthews
[2009] WASAT 16
•29 JANUARY 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDERS' REGISTRATION ACT 1939 (WA)
CITATION: GREEN and MATTHEWS [2009] WASAT 16
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 27 JANUARY 2009
DELIVERED : 29 JANUARY 2009
FILE NO/S: CC 105 of 2009
BETWEEN: BRUCE GREEN
Applicant
AND
JUDITH MATTHEWS
Respondent
Catchwords:
Order to Pay made by the Building Disputes Tribunal Factors to take into account before a stay is ordered Likelihood of success on appeal Balance of interests Ability of Ms Matthews to refund Mr Green Order to Stay not automatic if an appeal is sought
Legislation:
Builders' Registration Act 1939 (WA)
State Administrative Tribunal Act 2004 (WA), s 25(1), s 25(2), s 25(4)
Result:
The application is dismissed
Category: B
Representation:
Counsel:
Applicant: N/A
Respondent: N/A
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
GFS Management Services Pty Ltd v Ground and Foundation Supports Pty Ltd and Ors [2001] WASC 280
Re Carey; Ex parte Exclude Holdings Pty Ltd & Ors [2006] WASCA 18
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Green sought a stay of an Order to Pay by the Building Disputes Tribunal. The amount he was required to pay was $51,107.40 but, according to Mr Green, the real amount in dispute was only about $12,000, or 25% of the sum ordered.
Mr Green contended that the Building Disputes Tribunal had erred in the way in which it calculated the costs of consultants, the amount paid to Ms Matthews for attending the hearings, and the annual increase in building costs. He also expressed concern that Ms Matthews may not be financial to repay him if he were successful in the review of the decision.
Ms Matthews opposed the application. She explained that the dispute had been ongoing for more than four years, that she had not been able to fix all the deficiencies with the house since she has been waiting for a decision, that she was entitled to the order of the Building Disputes Tribunal being complied with, and that she needed the money to commence work on her property to address the shortcomings. She confirmed that she was financial and in a position to repay Mr Green any amount as the Tribunal may order. She also offered that her children would provide a written undertaking to assist her to make the payment or, in the alternative, for them to confirm in writing that she had the funds to make a payment.
The Tribunal reflected on the factors it must take into account when determining if an order should be stayed. The Tribunal dismissed the application on grounds that if the interests of the parties were taken into account, the balance is in favour of Ms Matthews. She is entitled to the fruit of her litigation and there are no proper reasons why the payment should be delayed. The reasons for decision expressed by the Building Disputes Tribunal dealt with each of the issues in dispute in detail, and although the main application for review is yet to be heard, Mr Green has not been able to demonstrate an apparent error on the part of the Tribunal that would make a successful review likely. Although Mr Green is unhappy with the order to pay, that in itself does not constitute sufficient ground for a stay to be granted. There is no other compelling reason why effect should not be given to the decision of the Building Disputes Tribunal.
The application for a stay was therefore dismissed.
Background
The application for a stay of order of the Building Disputes Tribunal (BDT) to pay was received on 21 January 2009. Written and oral submissions were received from Mr Green at the hearing which took place on 27 January 2009. Ms Matthews also attended the hearing by telephone and opposed the grant of a stay. Ms Matthews was not served with a copy of the application but she indicated that she would nevertheless participate in the proceedings. The Tribunal offered an extension of time, but she expressed her willingness for the proceedings to continue.
Mr Green seeks an order to stay the decision of the BDT for him to pay to Ms Matthews an amount of $51,107.40. Mr Green indicated during submissions that he does not dispute the entire amount, but only about 25% thereof. The actual amount in dispute is therefore in the range of $12,000.
The State Administrative Tribunal Act 2004 (WA) (SAT Act) empowers the Tribunal to stay an order of the decision‑maker, in this case the BDT, on the application of a party or at its own initiative (s 25(2) of the SAT Act). Such an order can only be made by a legally qualified member. I am such a member.
The reason for the urgency of the application is that the BDT issued an order to pay on 9 January 2009. According to the order, the amount must be paid within 14 days from receipt of the order. The time to make the payment has therefore lapsed and Ms Matthews may commence enforcement proceedings.
Mr Green seeks a review of the decision since he believes the BDT erred in its reasoning. Mr Green also contends that the dispute has been dragged out for more than four years and that another month or two to bring finality to the exact amount that should be paid would not prejudice either party.
Statutory framework
At the hearing of the interim application, the Tribunal explained to the parties the parameters within which it would deal with the matter.
Section 25 of the SAT Act sets out the requirements for a stay order to be issued. Section 25(1) of the SAT Act provides that the operation of a notice is not stayed unless ordered so by the Tribunal. The time to make the payment therefore continues to run although the proceedings within the State Administrative Tribunal are underway.
Section 25(4) of the SAT Act provides that the Tribunal can only grant a stay order if is considers it 'desirable' to do so after taking into account the following:
1)interests of persons affected by the order;
2)submissions by the decision‑maker; and
3)public interest.
The discretion exercised by the Tribunal must also be within the framework of general principles applicable to the stay of decisions. Those principles can be summarised as follows:
•there is an arguable case for an appeal;
•the stay is not lodged merely to delay the execution of the order;
•Mr Green must demonstrate that there is a proper basis to grant the stay if the interests of all parties are taken into account; and
•if the review is successful and Mr Green may be at risk of not recovering the moneys that he paid as a result of the BDT's decision, a stay may be granted.
It is important to note, however, that inconvenience or the possibility of some risk do not constitute a special circumstance to justify a stay. (GFS Management Services Pty Ltd v Ground and Foundation Supports Pty Ltd and Ors [2001] WASC 280 at [21]).
The Tribunal will briefly consider each of these requirements.
Consideration
The Tribunal must take into account several considerations when deciding if a decision of the BDT should be stayed. Those considerations will be discussed below.
The Tribunal finds that there are not sufficient reasons for the payment of monies to be stayed and that it is not desirable as far as the public interest is concerned for the giving effect of the order to be delayed.
The rationale for this decision is as follows.
Mr Green has not provided sufficient reasons to justify an extension of the order to stay. Although he was afforded opportunity to expand on the reasons he set out in his application, he could not provide additional information to show that the BDT had erred in its reasoning or that there was sufficient doubt about the correctness of the decision of the BDT to justify a stay. The Tribunal explained to the parties that, although the application for review would be heard in due course, the Tribunal must be satisfied during the interim proceedings that the grant of a stay is meritorious. A party is not automatically entitled to a stay of an order.
The application for a stay lacks merit since the reasons of the BDT are well explained and no glaring or obvious error has been pointed out. This is not to say that the Tribunal is prejudiced in regard to the main application for review. That would be heard in due course, and Mr Green would then be able to draw the attention of the Tribunal to any errors that he believes the BDT has made. But for purposes of the interim proceedings the Tribunal has not been shown why the decision of the BDT should not be given practical effect.
The mere fact that leave is sought for the decision to be reviewed is not sufficient for a stay order to be issued. The interests of the parties must be balanced and the convenience to both parties must be taken into account. The Tribunal accepts that Mr Green feels aggrieved by the decision of the BDT. The Tribunal also notes that he does not dispute the entire amount, but only approximately 25% thereof. The disputed amount is therefore approximately $12,000. Ms Matthews, on the other hand, is entitled to the fruit of the litigation, and the payment cannot be stayed for the mere reason that leave has been sought to review the decision or that Mr Green is unhappy with the decision of the BDT. Ms Matthews has been involved in this litigation for more than four years and is, now that a decision has been handed down, entitled to the success of her claim.
The decision of the BDT could be overturned during further proceedings before this Tribunal and Mr Green would then be placed in the original position, or in such a position as ordered by the Tribunal. If the Tribunal were to find in due course that the BDT had erred, Ms Matthews would have to refund Mr Green. But for now, however, effect must be given to the order of the BDT.
There are no other special circumstances to prevent Ms Matthews from receiving the monies she is entitled to pursuant to the decision of the BDT. Ms Matthews is financial, and she explained that she would be able to refund Mr Green if it was ultimately found that the BDT had erred. She also offered that her children would provide written confirmation of her ability to finance any refund that the Tribunal might order.
The Tribunal is therefore satisfied that Mr Green does not risk substantial prejudice if the decision of the BDT was overturned. I refer in this regard to the Court of Appeal decision in Re Carey; Ex parte Exclude Holdings Pty Ltd & Ors [2006] WASCA 18.
In conclusion, the Tribunal is satisfied that effect must be given to the decision of the BDT and that the application for a stay should be dismissed.
Order
The application for a stay of the Order to Pay (No 117/2008‑2009) of the Building Disputes Tribunal is dismissed.
I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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