MANOR ROOF RESTORATION and MARGIESON
[2009] WASAT 194
•6 OCTOBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDERS' REGISTRATION ACT 1939 (WA)
CITATION: MANOR ROOF RESTORATION and MARGIESON [2009] WASAT 194
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 15 SEPTEMBER 2009
DELIVERED : 6 OCTOBER 2009
FILE NO/S: CC 1002 of 2009
BETWEEN: MANOR ROOF RESTORATION
Applicant
AND
CAROL MARGIESON
Respondent
Catchwords:
Order to Pay made by the Building Disputes Tribunal - Factors to take into account before a stay is ordered - Introduction of fresh evidence - Likelihood of success on appeal - Balance of interests - Ability of Ms Margieson to refund Manor Roof Restoration if the appeal was successful - Order to stay not automatic if an appeal is sought - Failure of Manor Roof Restoration to apply for stay in time - Does a restraint order to deal with assets pursuant to the Proceeds of Crime Act 2002 (UK) support the issuing of a stay?
Legislation:
Proceeds of Crime Act 2002 (UK)
State Administrative Tribunal Act 2004 (WA), s 25, s 25(1), s 25(2), s 25(4)
Result:
The application for a stay is dismissed
The Order to Pay must be complied with by no later than 16 October 2009
Category: B
Representation:
Counsel:
Applicant: N/A
Respondent: N/A
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
GFS Management Services Pty Ltd v Ground and Foundation Supports Pty Ltd [2001] WASC 280
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 18
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Manor Roof Restoration sought a stay of an Order to Pay by the Building Disputes Tribunal. The amount it was required to pay was $12,000.00. The Order to Pay was made on 30 June 2009 and although the application for stay had to be lodged within 14 days, it was only lodged on 2 September 2009.
Mr Roope, making a submission for Manor Roof Restoration, sought the stay on grounds that he had been in the United Kingdom at the time of the original hearing and there was 'no way' of the company paying the amount at this stage. He gave two reasons for not being able to comply with the order; firstly, that he did not have the funds available and that a foreign restraining order made in the United Kingdom restricted the dealing with his assets pursuant to the Proceeds of Crime Act 2002 (UK); and secondly, that his family were placed under severe stress by the demand for payment. Mr Roope further contended that the Building Disputes Tribunal had erred by allowing the hearing to continue in his absence.Mr Roope and his subcontractor, Mr Milbourne, contended that the review was likely to succeed and therefore the stay was justified.
Ms Margieson opposed the application for stay. She explained that the dispute had been ongoing for a considerable time; that she had not been able to fix the deficiencies of the roof; that she suffered serious inconvenience during winter due to leaks; that she is elderly and the matter is giving her severe stress; that she was entitled to the order of the Building Disputes Tribunal being complied with; and that she needed the money to commence work on her property to address the shortcomings. She confirmed that she was financial and in a position to repay Manor Roof Restoration any amount as the Tribunal may order if the application for review were successful. She also contended that the application for review was unlikely to succeed since the Building Disputes Tribunal had taken into account all information before it; Mr Roope and Mr Milbourne had an opportunity to participate in the original proceedings; and she had submitted written quotations for the work to be done.
The Tribunal reflected on all the factors it must take into account when determining if an order should be stayed. The Tribunal dismissed the application on grounds that if the interests of the parties were taken into account, the balance was in favour of Ms Margieson.
Ms Margieson was entitled to the fruit of her litigation and there were no proper reasons why the payment should be delayed. She confirmed that she would be able to refund Mr Roope if the review were successful.
The Tribunal was satisfied that in the reasons for decision expressed by the Building Disputes Tribunal, it dealt with each of the issues in dispute in detail. Although the Tribunal had not come to a final decision in regard to the application for leave to review, on the basis of the available information, it is unlikely that the application for review would succeed. The Tribunal also took into account that Manor Roof Restoration had failed to comply with the Order to Pay within the required 28 days, and although the Tribunal at the directions hearing held on 23 July 2009 brought to their attention the duty to pay, they only applied for a stay on 2 September 2009. The only reason offered was that Mr Roope was overseas and not financially capable of paying, but that is not compelling in light of the fact that a company is the applicant and its operational office is in Perth. Being overseas does not in itself provide justification for a decision of the Building Disputes Tribunal to be stayed. There was no other convincing reason why effect should not be given to the decision of the Building Disputes Tribunal.
The application for a stay was therefore dismissed.
Background
The application for a stay of Order to Pay No 205/2008‑2009 of the Building Disputes Tribunal (BDT) was received on 2 September 2009. The BDT made its order on 30 June 2009. The directions hearing took place on 23 July 2009. Mr Roope was not in attendance at the directions hearing and did not request to participate via telephone. Mr Milbourne was present at the directions hearing.
At the directions hearing, the Tribunal explained to Mr Milbourne, the subcontractor who did the works for Mr Roope, that unless a stay is granted, the $12,000 must be paid. Mr Milbourne undertook to convey the information to Mr Roope.
It was, however, only after the bailiff commenced proceedings to give effect to the BDT order that Mr Roope wrote to the Tribunal on 3 September 2009 to seek a stay of the order.
The hearing for the stay application took place on 15 September 2009.
The State Administrative Tribunal Act 2004 (WA) (SAT Act) empowers the Tribunal to stay an order of the decision-maker, in this case the BDT, on the application of a party or at its own initiative (s 25(2) of the SAT Act). Such an order can only be made by a legally qualified member. I am such a member.
The reason for the urgency of the application is that the BDT issued an order to pay on 30 June 2009 and the bailiff has commenced recovery of the amount since it has not been paid. According to the BDT order, the amount had to be paid within 14 days from receipt of the order. The time to make the payment has therefore lapsed and Ms Margieson is therefore entitled to commence enforcement proceedings. Mr Roope indicated, in his application for stay, that his wife had received a call from the Fremantle Bailiff's office for the order to be enforced.
Manor Roof Restoration (Manor Roof) seeks a review of the decision, since it believes the BDT erred in its reasoning and also breached the rule of natural justice by allowing the hearing to go ahead in the absence of Mr Roope and Mr Milbourne. Manor Roof contends that until the review hearing is concluded, the Order to Pay should be stayed.
Statutory framework
At the hearing of the interim application, the Tribunal explained to the parties the parameters within which it would deal with the matter. The merits of the application for leave and the stay application were dealt with simultaneously.
Section 25 of the SAT Act sets out general requirements for a stay order to be issued. Section 25(1) of the SAT Act provides that the operation of a notice is not stayed unless ordered so by the Tribunal. The time to make the payment therefore continues to run although the proceedings within the State Administrative Tribunal are under way.
Section 25(4) of the SAT Act provides that the Tribunal can only grant a stay order if it considers it 'desirable' to do so, after taking into account the following:
1)interests of persons affected by the order;
2)submissions by the decision-maker; and
3)public interest.
The discretion exercised by the Tribunal must also be within the framework of general principles applicable to the stay of decisions. Those principles can be summarised as follows:
•There is an arguable case for an appeal.
•The stay is not lodged merely to delay the execution of the order.
•Manor Roof must demonstrate that there is a proper basis to grant the stay if the interests of all parties are taken into account.
•If the review is successful and Manor Roof may be at risk of not recovering the moneys that it paid as a result of the BDT's decision.
It is important to note, however, that inconvenience or the possibility of some risk do not constitute a special circumstance to justify a stay (GFS Management Services Pty Ltd v Ground and Foundation Supports Pty Ltd [2001] WASC 280 at [21]).
The Tribunal will briefly consider each of these requirements.
Consideration
The Tribunal must take into account several considerations when deciding if a decision of the BDT should be stayed. Those considerations will be discussed below.
For reasons that follow, the Tribunal finds that there are not sufficient reasons for the payment of moneys to be stayed and that it is not desirable, as far as the public interest is concerned, for the giving effect of the order to be delayed.
The rationale for this decision is as follows.
Manor Roof has not provided sufficient justification in support of its application for a stay of the Order to Pay. The mere fact that Manor Roof is unhappy with the BDT decision does not mean that a stay could be granted. Although the application for leave to review the decision of the BDT must yet be determined, the Tribunal must take all the above summarised principles for a stay into consideration, including the right of Ms Margieson to receive the benefit of her litigation, her ability to repay the amount if the review were successful, and the slowness in which Manor Roof acted in seeking a stay.
Mr Roope contends that the BDT erred by allowing the hearing to go ahead in his absence. In its reasons for decision at [2.1], the BDT explains in detail why it had decided to allow the hearing to continue. It found that:
Mr Roope therefore clearly was aware of the time and date of the hearing. He did not arrange for someone else to represent him … The matter was adjourned … in June to accommodate this alleged absence. The same excuse was given this time. The matter could not be adjourned in the interests of the Claimant/Owner …'
Mr Milbourne also confirmed that he had been fully aware of the BDT proceedings but, for reasons that remain unclear, failed to make submissions or to attend.
The refusal to grant a stay does not mean the Tribunal is prejudiced in regard to the main application for review. The Tribunal is merely reflecting on the reasons given by the BDT within the context of the stay application. With the information at hand, it is unlikely that Manor Roof would succeed in its application for leave, but it may be able to produce additional information in due course.
The outcome of the application for leave to review the decision is dealt with by the Tribunal in another decision. If leave to review is granted and if the Tribunal overturns the order of the BDT, Manor Roof can be refunded.
The mere fact that Manor Roof is allegedly unable to pay the amount is not sufficient for a stay order to be issued. Mr Roope contended that the company does not have the finances and, secondly, that an order was placed on his personal property preventing him from dealing with it. He did not offer evidence to support his contention that the company would be unable to meet its obligations, but even if he had done so, that is not a ground for granting a stay.
Mr Roope drew attention to the restraint order that was made on 9 June 2008 against him in the United Kingdom. The order was made pursuant to the Proceeds of Crime Act 2002 (UK). The order places a restraint on several properties owned by Mr Roope. He further contends that he does not have the financial means available to pay the $12,000. This information is not sufficient to stay the BDT order for three reasons: first, the order is not made against Manor Roof but against Mr Roope personally. Secondly, there is no legal principle that suggests the order to pay must be stayed due to the existence of the restraint order. The execution of the order to pay is not a matter for this Tribunal to deal with. Thirdly, there was no evidence tendered to substantiate his claim that he did not have the financial means, and even if there were, it would not constitute a basis for the Tribunal to issue a stay.
The interests of the parties must be balanced and the convenience to both parties must be taken into account. The Tribunal accepts that Manor Roof feels aggrieved by the decision of the BDT. Those concerns will in due course be dealt with by the Tribunal. Ms Margieson, on the other hand, is entitled to the fruit of the litigation, and the payment cannot be stayed for the mere reason that leave has been sought to review the decision or that Manor Roof is unhappy with the decision of the BDT.
Ms Margieson has been involved in this litigation for a long time; she has suffered serious inconvenience during winter; she is elderly and the matter is causing her severe stress; and she is, now that a decision has been handed down, entitled to the success of her claim. In her written submission she explained her plight as follows:
… I may be forced to stand another full winter in my home with no ceilings in 2 rooms and one more (kitchen) showing signs that it is going to follow the rest of the back half of my small home. (downwards)
Please think of the impossible job of warming my home at anytime, especially while in bed, with all the outside wind blowing into the house …
In her evidence before the Tribunal, I was impressed with her credibility, the detailed way in which she kept records and the tolerance that she has displayed, regardless of a terrible dilemma she finds herself in. It would be grossly unfair to her to grant the stay.
If leave to review the decision of the BDT were granted and the decision of the BDT was overturned, the Tribunal is satisfied that, given the assurance Ms Margieson gave during the hearing, she would be able to refund Manor Roof. But for now effect must be given to the order of the BDT.
The Tribunal is therefore satisfied that Manor Roof does not risk substantial prejudice if the decision of the BDT was overturned. I refer in this regard to the Court of Appeal decision in Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 18.
In conclusion, the Tribunal is satisfied that effect must be given to the decision of the BDT and that the application for a stay should be dismissed.
Order
1.The application for a stay of the Order to Pay (No 205/2008‑2009) of the Building Disputes Tribunal is dismissed.
2.The Order to Pay must be complied with by no later than 16 October 2009.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER