Jennings v Design and Procure Pty Ltd

CITATION: Jennings v Design and Procure Pty Ltd [2010] QCATA 36

PARTIES:	Nichole Ann Jennings (Applicant)
v
Design and Procure Pty Ltd (Respondent)

APPLICATION NUMBER:            APL120-10               

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Judge Fleur Kingham
(Deputy President )

DELIVERED ON:   12 July 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  1. The application to stay the decision is refused.

CATCHWORDS : 

APPLICATION TO STAY DECISION UNDER APPEAL, whether grounds for stay established

Queensland Civil and Administrative Tribunal Act 2009 s145(2)

Berry v Green [1999] QCA 213; applied

Cook's Construction P/L v Stork Food Systems Aust P/L [2008] QCA 322; applied

REASONS FOR DECISION

1. In Ms Jenning’s absence, an adjudicator of the tribunal found in favour of Design & Procure Pty Ltd in its claim to recover its fee for professional interior design services and associated costs. Ms Jennings filed an application for leave to appeal that decision. She also applied to stay the decision pending the outcome of that application. I rejected that application on 12 July 2010. Ms Jennings has requested I reconsider my decision or publish my reasons for refusing her application.

1. There is no basis for reconsidering my decision. These are my reasons for refusing Ms Jenning’s application for a stay of the learned adjudicator’s decision pending the appeal.

1. The tribunal may make an order staying the operation of a decision until an appeal is determined.[1] Its discretion to grant a stay is unfettered. The fundamental principle is that the successful party is entitled to the fruits of a decision in its favour, unless there is a particular feature of the case which warrants departure from that position. [2]

   [1] Queensland Civil and Administrative Tribunal Act 2009 s 145(2)

   [2] Berry v Green [1999] QCA 213

1. A stay will not be granted unless the applicant has an arguable case on appeal and the balance of convenience favours the grant of a stay.[3]

   [3] Cook's Construction P/L v Stork Food Systems Aust P/L [2008] QCA 322 at [12], [13], [15]

1. The material filed by Design and Procure is comprehensive and substantial. Ms Jennings’ response argued the claim was excessive. She produced no material relevant to the merits of the claim made against her. Unless she is granted leave to file fresh evidence in the appeal (which she has not sought to do) her prospects on appeal seem faint.

1. In her application for an appeal, she argued she was not given an opportunity to respond to the material filed by Design and Procure or to cross-examine their witnesses. That she could do neither was not the fault of the learned adjudicator.

1. The applicant stated the material on which the learned adjudicator made her decision was provided to both her solicitor and to Ms Jennings some six weeks before the hearing. Correspondence from Ms Jennings to Design and Procure (dated 6 May 2010) and from her solicitors to an agency engaged by Design and Procure (dated 29 April 2010) reveal that Ms Jennings had…