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

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

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: [2014] QCATA 265
Decision Date: 12 September 2014

CaseChat Overview and Summary

The applicants, Kuzba, sought to stay a decision made by the Magistrates Court of Victoria against the respondent, O'Day, in a minor civil dispute. The dispute originated from a claim by the builder, Kuzba, against the contractor, O'Day, for goods purchased on the builder's trade account. Both parties argued they were experiencing financial difficulties. The applicants sought to stay the decision pending an appeal to the Supreme Court of Victoria.

The primary legal issue before the court was whether the applicants had established grounds for a stay of the decision. The applicants argued that the decision was flawed and that there were substantial grounds for appeal, particularly in relation to the calculation of damages. They contended that a stay was necessary to avoid irreparable harm and financial ruin. The respondents opposed the stay, arguing that the decision was not flawed and that there was no evidence of any immediate risk of harm.

The court considered the criteria for granting a stay under the relevant legislation. It noted that a stay is not automatic and requires a demonstration of substantial grounds for appeal and the potential for irreparable harm. The court found that the applicants had not established a sufficient basis for a stay. The court held that the applicants' claims of financial hardship were not sufficient to meet the criteria for a stay, and there was no evidence that the decision would cause irreparable harm. The court further found that the applicants had not demonstrated that the appeal had a reasonable prospect of success.

The court refused the application to stay the decision. The applicants were ordered to pay the respondents' costs of the application.

Orders

Orders of the court

1. The application to stay the decision is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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