Jackson v Hammond Villages Pty Ltd t/as Hammond Village Gold Coast
[2014] QCATA 2
•9 January 2014
| CITATION: | Jackson v Hammond Villages Pty Ltd t/as Hammond Village Gold Coast [2014] QCATA 002 |
| PARTIES: | Vicki Jackson (Applicant/Appellant) |
| v | |
| Hammond Villages Pty Ltd t/as Hammond Village Gold Coast (Respondent) |
| APPLICATION NUMBER: | APL460-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Deane |
| DELIVERED ON: | 9 January 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Hammond Villages Pty Ltd t/as Hammond Village Gold Coast’s Application to extend time to file submissions is allowed. 2. Vicki Jackson’s Application to stay a decision is dismissed. |
| CATCHWORDS: | STAY – where Tribunal ordered the payment of amounts of money for arrears and ongoing site rent and service charges, the termination of an unwritten site agreement on 21 February 2014, the giving of vacant possession by 21 February 2014 and for disposal of rubbish and the engagement of a pest controller to treat the manufactured home – whether grounds of a stay established Extension of time to file stay submissions allowed Queensland Civil and Administrative Tribunal Act 2009 ss 42, 61, 145 Berry v Green [1999] QCA 213 Chief Executive Officer, Department for Child Protection v S (2007) 98 ALD 329 Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 Kostopoulos v G E Commercial Finance Australia Pty Ltd [2005] QCA 311 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
On 20 September 2013 the Tribunal ordered:
a) Ms Jackson to pay Hammond Villages Pty Ltd $13,507.87 for arrears of site rent, service charges and interest by 21 October 2013;
b) The unwritten site agreement be terminated on 21 February 2014 if the manufactured home at lot 173 is not earlier sold and assigned;
c) Ms Jackson give vacant possession of lot 173 on or before 21 February 2014 if the manufactured home at lot 173 is not earlier sold and assigned;
d) Ms Jackson pay a monthly site rent of $515.52 (or as subsequently varied in accordance with the site agreement dated 2 September 2004) together with all service charges incurred by her from 1 May 2013 to the date of termination of the site agreement or an earlier date of sale and assignment of the manufactured home;
e) Hammond Villages Pty Ltd deliver to Ms Jackson a statement of outstanding site rent and service charges for the period 1 May 2013 to 20 September 2013 which Ms Jackson must pay within 14 days from the date of delivery of the statement;
f) By 21 October 2013 Ms Jackson dispose of rubbish in and around the manufactured home at lot 173 so that it achieves a reasonable state of cleanliness and repair and by 21 October 2013 Ms Jackson engage a pest controller to treat the manufactured home and lot 173 for pests and vermin.
Within a few days of receiving the decision Ms Jackson filed an application for leave to appeal or appeal and at the same time filed an application to stay the decision of the Tribunal. Directions were made for the delivery of submissions in relation to the stay application.
On 28 October 2013 Hammond Villages Pty Ltd sold its interest in the manufactured home park to Alceon Group No 11 Pty Ltd. There is no evidence before the Tribunal as to the nature of the sale e.g. whether it was a sale of shares or was a sale of land etc.
Ms Jackson, who is self represented, has attempted to notify Alceon of the orders sought by providing copies of her submissions and the directions made in this matter. Neither Ms Jackson nor Alceon has so far sought to join Alceon to the appeal.[1] Alceon’s interests may be affected by the application for leave to appeal or appeal but there is insufficient evidence to join Alceon on the Tribunal’s own initiative.[2]
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 42.
[2] Ibid s 42(2).
Hammond Villages Pty Ltd’s submissions in relation to the stay were filed late but before the Appeal Tribunal considered the application for the stay. It filed an application seeking an extension of time within which to file the submissions. The Tribunal may extend time even if the time for complying with the requirement has passed.[3] The delay in filing the submissions has not caused prejudice to Ms Jackson because the application had not been considered prior to their receipt.[4] Accordingly I extend time and have considered the submissions.
[3] Ibid s 61(2).
[4] Ibid s 61(3).
I am not satisfied that grounds for a stay have been established.
Section 145 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides that the start of an appeal does not affect the operation of the decision or prevent the taking of action to implement the decision. However s 145(2) provides for a stay of the operation of the decision.
The granting of a stay of a decision is an exercise of discretion. The discretion to grant a stay under s 145 is unfettered. The well established principle governing applications for a stay is that the successful party is 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. Other considerations include: whether the applicant has a good arguable case on appeal;[5] would a refusal of a stay render the appeal nugatory;[6] does the balance of convenience favour granting the stay?[7]
[5]Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 at 455.
[6] Chief Executive Officer, Department for Child Protection v S (2007) 98 ALD 329 at 331.
[7] Kostopoulos v G E Commercial Finance Australia Pty Ltd [2005] QCA 311.
The submissions filed by Ms Jackson in support of the stay are not particularly helpful in addressing these principles.
It is necessary to make a preliminary assessment of the strength of Ms Jackson’s case. The Appeal Tribunal has previously accepted that the demonstration of an arguable appeal is a condition precedent to obtaining a stay.[8] Ms Jackson’s contention appears to be that the Tribunal’s findings in a number of respects were in error (apparently seeking for the Appeal Tribunal to reconsider the evidence and come to different conclusions of fact and law) and seeks to introduce new evidence though some of the new evidence has not yet been filed. Ms Jackson has not in her submissions sought to explain why such new evidence was not provided to the Tribunal at the original hearing.
[8] Deputy Commissioner Stewart v Kennedy [2011] QCATA 254.
New evidence is generally not received on appeal. It is important that litigation be brought to a conclusion. Often submissions that new evidence should be allowed are attempts to re-litigate a matter based on a hope of a different outcome.
Having regard to the submissions in the stay application and in respect of the application for leave to appeal or appeal filed to date, the Tribunal’s reasons for decision and the transcript of evidence I assess Ms Jackson’s prospects as slim. The Tribunal Member appears to have carefully considered the evidence before her.
A factor in this matter is that some of the Tribunal’s orders are to take affect on 21 February 2014.[9] If Ms Jackson had good prospects of success on her appeal the requirement that she give vacant possession prior to her appeal being determined would be a factor in favour of granting a stay because to not grant the stay would render a successful appeal ineffective at least in certain respects. As stated earlier in these reasons I have assessed Ms Jackson’s prospects as slim so that the condition precedent has not been established.
[9] Termination of the site agreement and the giving of vacant possession.
The directions made in the application for leave to appeal or appeal contemplate that the matter would be ready for determination once Hammond Villages Pty Ltd’s submissions are filed by 28 January. It is therefore possible for the Appeal Tribunal to determine the matter prior to 21 February 2014 in order to mitigate the impact of refusing the stay.
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