Li v Morgan Jade Heading ATF the Je Trust - [2020] QCATA 25

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Li & Ors v Morgan Jade Heading ATF The JE Trust & Anor [2020] QCATA 25

PARTIES: MING-CHI LI

(applicant/appellant)

CAPRI JOURNI
(applicant/appellant)

NICK LYU
(applicant/appellant)

v

MORGAN JADE HEADING ATF THE JE TRUST

(respondent)

ALL ROUND REAL ESTATE PTY LTD T/A LJ HOOKER MACKAY
(respondent)

APPLICATION NO/S:

APL 324-19

ORIGINATING APPLICATION NO/S:

MCDT212/19

MATTER TYPE:

Appeals

DELIVERED ON:

5 March 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

ORDERS:

The application to stay a decision is refused.

CATCHWORDS:
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where a stay of a decision is sought pending appeal – whether a stay can be granted when leave to appeal has not yet been granted – whether an interim order in the nature of a stay should be made

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 58, s 142(3)(a)(i), s 145(2)

Hessey-Tenny & Anor v Jones [2018] QCATA 131

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION
Introduction

These are the reasons for my decision, made on 21 February 2020, that the applicant’s application to stay a decision is refused.
Background
The respondents filed an Application for minor civil dispute – residential tenancy dispute in the Magistrates Court at Mackay on 8 July 2019. The respondents claimed a total amount of $1,499.52 from the applicants and sought that a $1,200 bond held by the Residential Tenancies Authority (RTA) be paid to the respondents and that the applicants pay the further amount of $299.52 owing above the bond following repairs required after vacation of the rented premises.
The application was heard and determined by a Magistrate sitting as QCAT and on 28 November 2019 the Magistrate ordered that the RTA pay to the respondents the bond of $1,200 and the applicants pay to the respondents $176 forthwith for the repairs to the door plus filing fees of $123.20 (“the decision”).
The applications for leave to appeal or appeal and to stay the decision
The applicant filed an Application for leave to appeal or appeal the decision on 29 November 2019. The applicant filed an Application to stay the decision on the same date. The applicants state they want a stay of the decision because they are lodging an appeal and would like their bond money to stay with the RTA during the appeal process.
By an email of 22 January 2019, the applicants made submissions in support of the application for leave to appeal and the application to stay a decision. The applicants complain about the manner in which the Magistrate conducted the hearing and make submissions going to the merits of the decision. The submissions do not address any further matters relevant to the exercise of a discretion to stay a decision pending appeal. The applicants do not point to any irremediable prejudice or disadvantage they would suffer if a stay was not ordered.
The respondents have filed submissions opposing the application for leave to appeal and the application to stay a decision.
Leave to appeal the decision is required: Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the Act”), s 142(3)(a)(i).
Principles
The Tribunal has power to make an order staying the operation of a decision being appealed against until that appeal is finally decided: s 145(2) of the Act. The circumstances in which a stay might be granted are not proscribed by the Act. General principles applied by the courts on applications for a stay pending appeal provide guidance. An applicant for a stay must demonstrate a reason to warrant the exercise of discretion to grant the stay. The applicant must show that the balance of convenience favours a stay. Considerations such as irremediable prejudice in the absence of a stay will be relevant. Original decisions are not to be treated as merely provisional pending the determination of an appeal. Absent a good reason for a stay, a successful party is entitled to the fruits of judgment unless and until the judgment is overturned on appeal.
Where, as is the case here, leave to appeal is required but has not yet been granted, the power to stay the decision under s 145(2) of the Act is not available but s 58 of the Act will empower the Tribunal to make an interim order to the same effect where the applicant can demonstrate exceptional circumstances such as to warrant the making of an order in the nature of a stay: Hessey-Tenny & Anor v Jones [2018] QCATA 131.
Consideration
The applicants have attacked the merits of the decision they seek to appeal, including the manner of the conduct of the hearing by the Magistrate and the correctness of the Magistrates decision. The respondents dispute such matters. I do not yet have available to me a transcript of the hearing and the Magistrate’s reasons for decision. I am not in a position to be able to make any assessment of the applicants’ prospects on appeal. I am prepared to proceed on the basis that the appeal is reasonably arguable.
The applicants have not sought to address any of those matters otherwise relevant to an application for a stay, such as the competing factors relevant to a consideration of the balance of convenience. They have not pointed to any relevant disadvantage, let alone irremediable prejudice, in the absence of a stay. It is not suggested that success on appeal would be rendered nugatory in the absence of a stay.
None of the considerations that would favour a stay have been demonstrated in this case. The balance of convenience does not favour a stay of the decision. The applicants have not demonstrated exceptional circumstances such as to warrant the making of an order in the nature of a stay.
For these reasons, my decision was that the application to stay the decision was refused.

Details

AGLC: Li v Morgan Jade Heading ATF the Je Trust [2020] QCATA 25
Case: [2020] QCATA 25
Decision Date: 5 March 2020

CaseChat Overview and Summary

In the matter of Li v Morgan Jade Heading ATF the Je Trust, the applicant sought to stay a decision of the Queensland Civil and Administrative Tribunal (QCAT) until an appeal was determined. The decision in question concerned a residential tenancy dispute, with the respondents claiming $1,499.52 from the applicants, including the return of a $1,200 bond held by the Residential Tenancies Authority (RTA) and additional repair costs. The QCAT ordered the RTA to pay the respondents $1,200 and the applicants to pay an additional $176 for repairs and $123.20 in filing fees. The applicants filed an application for leave to appeal and a stay on the same day as their appeal application. The applicants sought a stay to keep their bond with the RTA during the appeal process. They did not address the balance of convenience or demonstrate any irremediable prejudice they might suffer without a stay.

The court had to determine whether a stay could be granted when leave to appeal had not yet been granted, and whether an interim order in the nature of a stay should be made. The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the Act) provides that a stay can be granted until an appeal is finally decided, but where leave to appeal is required and not yet granted, the Tribunal can only make an interim order if exceptional circumstances warrant it. The court considered the applicants' submissions, which primarily challenged the merits of the decision and the conduct of the hearing, without addressing the balance of convenience or demonstrating any exceptional circumstances. The court was not in a position to assess the prospects of the appeal but was prepared to proceed on the basis that the appeal was reasonably arguable.

The court concluded that the applicants had not demonstrated any relevant disadvantage or exceptional circumstances warranting a stay. The balance of convenience did not favour a stay, and the court was not persuaded that success on appeal would be rendered nugatory without a stay. Therefore, the application to stay the decision was refused. The court emphasised that original decisions should not be treated as provisional pending the determination of an appeal, and a successful party is entitled to the fruits of judgment unless and until the judgment is overturned on appeal.

ORDERS:
The application to stay a decision is refused.

Orders

Orders of the court

The application to stay a decision is refused.

Background

Background to the litigation

These are the reasons for my decision, made on 21 February 2020, that the applicant’s application to stay a decision is refused. Background The respondents filed an Application for minor civil dispute – residential tenancy dispute in the Magistrates Court at Mackay on 8 July 2019. The respondents claimed a total amount of $1,499.52 from the applicants and sought that a $1,200 bond held by the Residential Tenancies Authority (RTA) be paid to the respondents and that the applicants pay the further amount of $299.52 owing above the bond following repairs required after vacation of the rented premises. The application was heard and determined by a Magistrate sitting as QCAT and on 28 November 2019 the Magistrate ordered that the RTA pay to the respondents the bond of $1,200 and the applicants pay to the respondents $176 forthwith for the repairs to the door plus filing fees of $123.20 (“the decision”).The applications for leave to appeal or appeal and to stay the decision The applicant filed an Application for leave to appeal or appeal the decision on 29 November 2019. The applicant filed an Application to stay the decision on the same date. The applicants state they want a stay of the decision because they are lodging an appeal and would like their bond money to stay with the RTA during the appeal process. By an email of 22 January 2019, the applicants made submissions in support of the application for leave to appeal and the application to stay a decision. The applicants complain about the manner in which the Magistrate conducted the hearing and make submissions going to the merits of the decision. The submissions do not address any further matters relevant to the exercise of a discretion to stay a decision pending appeal. The applicants do not point to any irremediable prejudice or disadvantage they would suffer if a stay was not ordered. The respondents have filed submissions opposing the application for leave to appeal and the application to stay a decision. Leave to appeal the decision is required: Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the Act”), s 142(3)(a)(i).Principles The Tribunal has power to make an order staying the operation of a decision being appealed against until that appeal is finally decided: s 145(2) of the Act. The circumstances in which a stay might be granted are not proscribed by the Act. General principles applied by the courts on applications for a stay pending appeal provide guidance. An applicant for a stay must demonstrate a reason to warrant the exercise of discretion to grant the stay. The applicant must show that the balance of convenience favours a stay. Considerations such as irremediable prejudice in the absence of a stay will be relevant. Original decisions are not to be treated as merely provisional pending the determination of an appeal. Absent a good reason for a stay, a successful party is entitled to the fruits of judgment unless and until the judgment is overturned on appeal.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The application was heard and determined by a Magistrate sitting as QCAT and on 28 November 2019 the Magistrate ordered that the RTA pay to the respondents the bond of $1,200 and the applicants pay to the respondents $176 forthwith for the repairs to the door plus filing fees of $123.20 (“the decision”).The applications for leave to appeal or appeal and to stay the decision The applicant filed an Application for leave to appeal or appeal the decision on 29 November 2019. The applicant filed an Application to stay the decision on the same date. The applicants state they want a stay of the decision because they are lodging an appeal and would like their bond money to stay with the RTA during the appeal process. By an email of 22 January 2019, the applicants made submissions in support of the application for leave to appeal and the application to stay a decision. The applicants complain about the manner in which the Magistrate conducted the hearing and make submissions going to the merits of the decision. The submissions do not address any further matters relevant to the exercise of a discretion to stay a decision pending appeal. The applicants do not point to any irremediable prejudice or disadvantage they would suffer if a stay was not ordered. The respondents have filed submissions opposing the application for leave to appeal and the application to stay a decision. Leave to appeal the decision is required: Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the Act”), s 142(3)(a)(i).Principles The Tribunal has power to make an order staying the operation of a decision being appealed against until that appeal is finally decided: s 145(2) of the Act. The circumstances in which a stay might be granted are not proscribed by the Act. General principles applied by the courts on applications for a stay pending appeal provide guidance. An applicant for a stay must demonstrate a reason to warrant the exercise of discretion to grant the stay. The applicant must show that the balance of convenience favours a stay. Considerations such as irremediable prejudice in the absence of a stay will be relevant. Original decisions are not to be treated as merely provisional pending the determination of an appeal. Absent a good reason for a stay, a successful party is entitled to the fruits of judgment unless and until the judgment is overturned on appeal. Where, as is the case here, leave to appeal is required but has not yet been granted, the power to stay the decision under s 145(2) of the Act is not available but s 58 of the Act will empower the Tribunal to make an interim order to the same effect where the applicant can demonstrate exceptional circumstances such as to warrant the making of an order in the nature of a stay: Hessey-Tenny & Anor v Jones [2018] QCATA 131.Consideration The applicants have attacked the merits of the decision they seek to appeal, including the manner of the conduct of the hearing by the Magistrate and the correctness of the Magistrates decision. The respondents dispute such matters. I do not yet have available to me a transcript of the hearing and the Magistrate’s reasons for decision. I am not in a position to be able to make any assessment of the applicants’ prospects on appeal. I am prepared to proceed on the basis that the appeal is reasonably arguable.

Ratio Decidendi

Legal Principle Established

Where, as is the case here, leave to appeal is required but has not yet been granted, the power to stay the decision under s 145(2) of the Act is not available but s 58 of the Act will empower the Tribunal to make an interim order to the same effect where the applicant can demonstrate exceptional circumstances such as to warrant the making of an order in the nature of a stay: Hessey-Tenny & Anor v Jones [2018] QCATA 131.Consideration The applicants have attacked the merits of the decision they seek to appeal, including the manner of the conduct of the hearing by the Magistrate and the correctness of the Magistrates decision. The respondents dispute such matters. I do not yet have available to me a transcript of the hearing and the Magistrate’s reasons for decision. I am not in a position to be able to make any assessment of the applicants’ prospects on appeal. I am prepared to proceed on the basis that the appeal is reasonably arguable. The applicants have not sought to address any of those matters otherwise relevant to an application for a stay, such as the competing factors relevant to a consideration of the balance of convenience. They have not pointed to any relevant disadvantage, let alone irremediable prejudice, in the absence of a stay. It is not suggested that success on appeal would be rendered nugatory in the absence of a stay. None of the considerations that would favour a stay have been demonstrated in this case. The balance of convenience does not favour a stay of the decision. The applicants have not demonstrated exceptional circumstances such as to warrant the making of an order in the nature of a stay. For these reasons, my decision was that the application to stay the decision was refused.