Helu v Yuan - [2021] QCATA 80

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Helu v Yuan [2021] QCATA 80

PARTIES: PAUL HELU

(applicant/appellant)

v

HONGWEN YUAN

(respondent)

APPLICATION NO:

APL098-21

ORIGINATING APPLICATION NO:

BDL176-19

MATTER TYPE:

Appeal

DELIVERED ON:

25 June 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1. The application to stay the decision of the tribunal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the applicant is a building contractor – where the respondent homeowner engaged the builder to build a pool and spa – where the pool and spa were smaller than originally specified in the contract – where at first instance the builder was ordered to pay damages to the homeowner – where the builder’s claim for quantum meruit was denied – where the builder seeks a stay of the decision – where the applicant provided no evidence as to the disadvantage to the applicant the judgment would cause if the stay is not granted – whether the original decision should be stayed

Domestic Building Contracts Act 2000 (Qld)

Queensland Building and Construction Commission Act 1991 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Bellgrove v Eldridge (1954) 90 CLR 613

Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453
Elphick v MMI General Insurance Ltd [2002] QCA 347
Ventura v Svirac [1961] WAR 63

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

Mr Helu undertook domestic building work for Mr Yuan. The parties fell into dispute. On 3 March 2021 the tribunal decided the dispute, ordering Mr Helu to pay Mr Yuan $59,010.00 plus costs of $338.20 and dismissing Mr Helu’s counter-application (the decision).
Mr Helu has appealed the decision and has applied to stay the decision pending the outcome of the appeal.
The start of an appeal does not affect the operation of the decision under appeal or prevent the taking of action to implement the decision.[1] The tribunal may make an order staying the operation of the decision being appealed until the appeal is finally decided.[2]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 145(1).
[2]Ibid, s 145(2).
The principles in relation to the granting of a stay of a decision under appeal are well established:[3]
(a)There must be a good arguable case on appeal;
(b)The applicant will be disadvantaged if the stay is not ordered;
(c)The balance of convenience favours the granting of the stay – that is, the disadvantage to the applicant if the stay is not granted outweighs the disadvantage to the respondent if the stay is granted.
[3]Elphick v MMI General Insurance Ltd [2002] QCA 347.
All of these considerations must be satisfied in order…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QCATA 80
Decision Date: 25 June 2021

CaseChat Overview and Summary

In the case of Helu v Yuan, the applicant, Helu, a building contractor, sought a stay of the proceedings against the homeowner, Yuan. The original dispute arose from a contract between the parties for the construction of a pool and spa, which were completed smaller than specified. At first instance, Helu was ordered to pay damages to Yuan, and his claim for quantum meruit was denied. Helu now appeals the decision and seeks a stay of the proceedings pending the appeal.

The central legal issue before the court was whether the applicant had satisfied the criteria necessary for a stay of proceedings to be granted. The court had to consider if Helu had established an arguable case on appeal, the potential disadvantages to him if the stay was not granted, and the balance of convenience. The court also had to determine if Helu had provided sufficient evidence or submissions to demonstrate that the balance of convenience favoured granting the stay.

The court found that while Helu had an arguable case on appeal, he failed to satisfy the other criteria required for a stay. Specifically, Helu provided no evidence or meaningful submissions to show the disadvantage he would suffer if the stay was not granted. The court noted that without such submissions, it was not satisfied that the balance of convenience favoured granting the stay. Consequently, the court refused the application to stay the decision of the tribunal.

In conclusion, the court determined that Helu had not demonstrated that the balance of convenience weighed in favour of granting the stay. The application to stay the decision of the tribunal was refused.

Orders

Orders of the court

1. The application to stay the decision of the tribunal is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the absence of any meaningful submissions from Mr Helu, I am not satisfied that the balance of convenience favours the granting of the stay. Conclusion As I earlier observed, in order to be successful in the stay application Mr Helu is required to establish all three requirements relevant in determining such applications. Whilst I am satisfied that Mr Helu has an arguable case on appeal, he has failed to address, and therefore satisfy, the other requirements. The application to stay the decision of the tribunal is refused.

Ratio Decidendi

Legal Principle Established

Accordingly, Mr Helu has not demonstrated that this consideration weighs in favour of the granting of the stay. Balance of convenience considerations As I have observed, Mr Helu has offered no evidence nor made any submissions addressing the disadvantage he will suffer if the stay is not granted. The relative disadvantage to Mr Helu if the stay is not granted is relevant to balance of convenience considerations. There is nothing before me to suggest, for example, that there is a real risk that the decision amount will be dissipated or removed from the state by Mr Yuan pending the hearing of the appeal or that compliance with the orders under appeal would result in Mr Helu’s bankruptcy. Even if the latter were a real possibility, the fact that compliance with the judgment would result in the applicant becoming bankrupt will not necessarily weigh in favour of granting a stay.[11][11]Phoenix Constructions (Qld) Pty Ltd v McCracken [2011] QCA 259. In the absence of any meaningful submissions from Mr Helu, I am not satisfied that the balance of convenience favours the granting of the stay. Conclusion As I earlier observed, in order to be successful in the stay application Mr Helu is required to establish all three requirements relevant in determining such applications. Whilst I am satisfied that Mr Helu has an arguable case on appeal, he has failed to address, and therefore satisfy, the other requirements. The application to stay the decision of the tribunal is refused.

CITATION:	Helu v Yuan [2021] QCATA 80
PARTIES:	PAUL HELU
(applicant/appellant)
v
HONGWEN YUAN
(respondent)
APPLICATION NO:	APL098-21
ORIGINATING APPLICATION NO:	BDL176-19
MATTER TYPE:	Appeal
DELIVERED ON:	25 June 2021
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Brown
ORDERS:	1. The application to stay the decision of the tribunal is refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the applicant is a building contractor – where the respondent homeowner engaged the builder to build a pool and spa – where the pool and spa were smaller than originally specified in the contract – where at first instance the builder was ordered to pay damages to the homeowner – where the builder’s claim for quantum meruit was denied – where the builder seeks a stay of the decision – where the applicant provided no evidence as to the disadvantage to the applicant the judgment would cause if the stay is not granted – whether the original decision should be stayed Domestic Building Contracts Act 2000 (Qld) Queensland Building and Construction Commission Act 1991 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Bellgrove v Eldridge (1954) 90 CLR 613 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 Elphick v MMI General Insurance Ltd [2002] QCA 347 Ventura v Svirac [1961] WAR 63
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)