Kuzba v O'Day

[2014] QCATA 265

CITATION: Kuzba v O’Day [2014] QCATA 265

PARTIES:	Damian Francis Kuzba (Appellant)
v
William O’Day Shona O’Day (Respondents)

APPLICATION NUMBER: APL365-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Acting Senior Member Paratz

DELIVERED ON: 12 September 2014

DELIVERED AT: Brisbane

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

CATCHWORDS:

APPLICATION TO STAY DECISION UNDER APPEAL - MINOR CIVIL DISPUTE – whether grounds for stay established – where a claim by builder against contractor for goods purchased on the builder’s trade account – where both parties claim financial hardship

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 145(2)

Commissioner of Taxation (Cth) v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220
JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Jennings v Design and Procure Pty Ltd [2010] QCATA 36

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 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Mr Kuzba purchased roofing materials from Bluescope Lysaght for $7,070.86 on the trade account of William O'Day trading as Roofing Australia. The O’Days maintain that Mr Kuzba was a contractor, whereas he argues that was an employee.

2. The O’Days filed a Minor Civil Dispute application in the Tribunal seeking payment of that amount.

3. The Tribunal, comprised of the Magistrate at Caloundra, ordered on 4 August 2014 that Mr Kuzba pay $7,076.86 plus costs of $143.90 to the O’Days.

4. Mr Kuzba filed an Application for leave to Appeal and an Application to Stay the decision on 26 August 2014. Directions were made on 27 August 2014 as to submissions, and providing for a decision to be made as to the Stay application on the papers not before 4 September 2014. This is the decision on the Stay application.

5. Mr Kuzba submits that his prospects of success on the appeal are strong. He says that he cannot afford to pay the judgment because he is unemployed and has an approximately $19,000 tax bill. He also says that he has an employment claim against the O’Days which is to be heard on 10 November 2014.

6. The O’Days say that their credit facility with BlueScope Lysaghts is critical to the operation of their business and remains suspended due to the debt incurred by Mr Kuzba on 17 March 2014. They say this has placed their business in an unstable position and powerless to trade in normal circumstances until the debt is paid in full. They say their family, including three teenage children, are under enormous financial and emotional strain due to the situation that Mr Kuzba has placed them in.

7. This Tribunal has power to make an order staying the operation of a decision being appealed against, until that appeal is finally decided: Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 145(2).

8. The normal rule is that a litigant is entitled to the ‘fruits’ of the litigation, a phrase which typically includes a judgment.[1] While it has been suggested that an applicant for a stay must establish ‘special circumstances’[2] before an order will be made, it has also been said that the discretion is unfettered and that the applicant must demonstrate a basis for a stay, with particular emphasis upon such matters as the balance of convenience, and the competing rights of the parties.[3]

   [1]Commissioner of Taxation (Cth) v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222-3 per Dawson J.

   [2]JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255 at 258.

   [3]Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-5.

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.[4]

   [4]Jennings v Design and Procure Pty Ltd [2010] QCATA 36 at para 4.

1. Mr Kuzba argues in his Grounds of appeal that the Tribunal erred in not allowing him to treat his claims under the Competition and Consumer Act 2010 as a defence. He does not elaborate as to the alleged error in his submissions.

1. There is no overwhelming likelihood of success demonstrated by Mr Kuzba. The Appeal will be decided on the merits.

1. Each of the parties are claiming financial hardship. Mr Kuzba says he cannot pay, and the O’Days say they need the money to trade.

1. The balance of convenience is with the O’Days who are entitled to the fruits of the decision in their favour, and who are suffering hardship at least equivalent to Mr Kuzba.

1. The application by Mr Kuzba for a stay is refused.