Lindgren v Trigg

[2011] QCATA 50

CITATION: Lindgren v Trigg [2011] QCATA 50

APPELLANT:	Paula Catharina Lindgren (Applicant/Appellant)
v
RESPONDENT:	Aaron Trigg Painting (Respondent)

APPLICATION NUMBER:   APL022-11

MATTER TYPE: Appeals

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President

DELIVERED ON: 10 March 2011

DELIVERED AT:      Brisbane

ORDERS MADE: 1. The Application to stay the decision in Minor Civil Dispute 55/10 is refused.

CATCHWORDS :  APPLICATION FOR LEAVE TO APPEAL – APPLICATION TO STAY A DECISION ON APPEAL – where applicant sought to stay original decision pending appeal – where application argued financial hardship as basis for the stay – whether balance of convenience favoured the applicant

REASONS FOR DECISION

1. On 16 August 2010, in Nambour, a Magistrate sitting as a member of QCAT ordered Miss Lindgren to pay Aaron Trigg Painting the sum of $3,500 for painting work carried out at Miss Lindgren’s property.

1. In a decision I delivered on 24 January 2011, I outlined the procedural history of this matter.  On 3 February 2011, Miss Lindgren filed submissions on the appeal.  I made an order on 21 February 2011 treating those submissions as an application to stay the Minor Civil Dispute decision.  I am now dealing with that application.

1. The application to stay the decision states:

“It has taken a long time to reach a conclusion to this case and I believe that a stay of the decision in claim number 55/10 would enable me to start making payments from my Centrelink allowance and thereby avoid the necessity of holding an enforcement hearing.”

1. The Tribunal may make an order staying the operation of a decision until an appeal is determined[1] and its discretion to do so is unfettered.  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.[2]  The fundamental principle is that the successful party is entitled to the fruits of a decision in their favour, unless there is a particular feature of the case which warrants departure from that position.[3]

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

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

   [3]        Berry v Green [1999] QCA 213.

1. Miss Lindgren’s submissions do not reveal any ground for granting a stay other than that she is having some difficulties with payment and wishes to avoid enforcement proceedings.  This is not sufficient basis for exercising discretion in the applicant’s favour.  Miss Lindgren would not appear to be irremediably prejudiced if the stay is not granted, but the appeal proper is later decided in her favour.[4]  The application for a stay is refused.

   [4]        Cook's Construction P/L v Stork Food Systems Aust P/L [2008] QCA 322 at [15].

1. On 24 January 2011 directions were made for the conduct of the application for leave to appeal and if successful, appeal.  Submissions have been received by the Tribunal from both parties and the appeal Tribunal will proceed to determine the application in accordance with the directions.