Holliday v Franklin (Qld) Pty Ltd

CITATION:	Holliday v Franklin (Qld) Pty Ltd [2015] QCATA 135
PARTIES:	Fiona Holliday (First Applicant/Appellant) David Holliday (Second Applicant/Appellant)
v
Franklin (Qld) Pty Ltd (Respondent)

APPLICATION NUMBER: APL280-15

MATTER TYPE: Appeals

HEARING DATE: 18 August 2015

HEARD AT: Brisbane

DECISION OF: Justice Carmody

DELIVERED ON: Orders delivered on 18 August 2015; reasons delivered on 8 September 2015

DELIVERED AT: Brisbane

ORDERS MADE:

THE TRIBUNAL ORDERS THAT:

1.    The application to stay the decision dated 16 June 2015 in BDL093-14 is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – BUILDING DISPUTE – STAY – whether a stay should be granted in support of enforcement of orders of the QBCC in parallel proceedings – whether a hypothetical risk of the respondent absconding from Queensland should warrant the granting of an application to stay.

APPEARANCES:  

APPLICANT:  F Holliday and D Holliday for the applicants

RESPONDENT:  F Galea for the respondent

REASONS FOR DECISION

1. This is an interlocutory application filed 14 July 2015 for a stay of a decision of a Member exercising the building disputes jurisdiction of the Queensland Civil and Administrative Tribunal in BLD093/14 ordering the applicants to pay the respondent $18,488.83 and dismissing the applicants’ counter-application a warrant for possession against the applicant.  The respondent resists the application on the basis that the Member committed no discernible or material legal, factual or discretionary error. 

2. On 18 August 2015 the Appeal Tribunal issued orders ex tempore refusing the application.  The Appeal Tribunal attempted to issue reasons for the decision ex tempore, but technical difficulties precluded that from being completed.  These are the Appeal Tribunal’s reasons for decision.

3. The applicant submits that the Appeal Tribunal should stay the operation of the orders of the Member until the respondent performs certain rectification works to a concrete pool situated on the applicant’s premises.  The rectification work was ordered by the Queensland Building and Construction Commission on 29 July 2015.

4. An application to stay the operation of a decision pending the finalisation of an application for leave to appeal or appeal should only be granted on grounds relating to the application and the appeal.  It should not be granted in support of some collateral purpose or objective.

5. The applicant effectively submits that the stay of the operation of BLD093-14 should be granted not on the basis of any inherent defect in the decision, or any detriment or disadvantage which might be caused by the decision, but for the purposes of supporting enforcement of the decision of the Queensland Building and Construction Commission.  To grant a stay of BLD093-14 in such circumstances would be an abuse of process. 

6. The principles governing an application for staying the operation of a decision are well established.  To be successful, the applicant must establish:

   1.    the application for leave to appeal and appeal presents an arguable case;

   2.    the applicants will suffer some material disadvantage as a result of the refusal of the stay of the operation of the decision; and

   3.    the balance of convenience favours the grant of…